Thurgood, Harold Albert v. National Bank of Australasia Ltd [1981] FCA 175

Federal Court of Australia|1981-10-01|Before: Deane JJ

Practice and Procedure - Application for leave to file notice of appeal out of time - Application based on discovery of fresh evidence - Evidence available at trial - Evidence not

likely to have an important influence on result of trial.

HAROLD ALBERT THURGOOD v. NATIONAL BANK OF AUSTRALASIA LIMITED

NEW SOUTH WALES DISTRICT REGISTRY) No. G129 of 1981 ) GENERAL DIVISION ) BETWEEN:

LIMITED Respondent ORDER 7 JUDGES MAKING ORDER: Bowen C.J., Fox and Deane JJ. DATE OF ORDER: 1 October 1981. WHERE MADE: Sydney.

THE COURT ORDERS THAT the application be dismissed with costs.

NEW SOUTH WALES DISTRICT REGISTRY) No. G129 of 1981 ) GENERAL DIVISION ) BETWEEN:

BOWEN C.J.: This is a matter of practice and procedure, where expedition is important. We think judgment should now be delivered. It is an application for leave to file and serve out of time a notice of appeal against a judgment of Lockhart J., which was given on 5 June 1981, and for an order dispensing with compliance with the rules.

Order 52 rule 15 of the Rules of the Federal Court requires that a notice of appeal be filed and served within 21 days; thus, in the present case, a notice of appeal should

have been filed and served by 26 June. In fact, no notice of

A bankruptcy petition was issued on 8 July and served on Mr. Harold Albert Thurgood on 30 July 1981. When the petition came on for hearing an adjournment was sought and obtained to enable an application for an extension of time to file a notice of appeal to be lodged. A timetable was laid down by the Judge who then had the petition before him. According to this timetable the application for leave to file a notice of appeal in extended time was to have been lodged by 15 September 1981.

No application was lodged by that date, but the present application was in fact filed on 16 September 1981 and served upon the respondent on 21 September 1981. At this stage the bankruptcy petition stands adjourned to 13 October 1981.

What we now have to consider is whether leave should be granted extending the time for filing notice of appeal and dispensing with compliance with the rules. Under Order 52 rule 15 sub-rule 2 this may be done "for special reasons". To succeed in this application the applicant has to give to the Court an explanation which it finds satisfactory, of the delay and the failure to comply with the rules and the Judge's direction.

Some evidence has been given as to what was occurring during the period of delay. One fact 1S that the solicitor acting for Mr. Thurgood was struck off the roll . However, the delay was substantial, and I am not persuaded that the explanation and the excuse suggested in the evidence is

The rules are designed to ensure that there should be an end to litigation in the public interest, although one has to balance against that the need to see that justice is done in the particular case, the interests of both parties being taken into consideration. In addition, it 1s necessary to consider what is the ground of the appeal, and to take into account what may shortly be described as the prospects of success.

What we are presented with is a desire to give further evidence before the Full Court on appeal. The proposed evidence is that of a witness who would speak to having seen a copy of a letter which, at the hearing, Mr. Thurgood said he had written and delivered to the respondent. For fresh evidence to be accepted in the circumstances it would generally have to be shown that it could not have been obtained with reasonable dilagence for use at the trial, that the evidence, 1f given, would probably have an important influence on the result of the case, although it need not be decisive, and that the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

The evidence which has been put before us as the evidence which it is desired to adduce, is the evidence of the witness Mr. Roy Hancox. The first comment which must be made is that this evidence was available at the time of the original trial. Its existence was known and the importance which Mr. Thurgood's Counsel now attaches to it must have become

reasonably evident early in the trial which occupied several

days. In those circumstances it has not been shown that the evidence is of a type which could not have been obtained with reasonable diligence for use at the trial.

In the second place, it cannot be said the evidence is such that, if given, it would probably have an important influence on the result of the case. The evidence is in the nature of evidence corroborative of some evidence which Mr. Thurgood gave about a letter dated 17 December 1977 which he said he delivered to the bank. Mr. Thurgood was not believed by the trial Judge.

Mr. Hancox swore an affidavit on 16 September 1981, which was in evidence before us. He corrected and supplemented this by evidence in the witness box. His evidence was to the effect that in the last week before Christmas 1977 he had a conversation with Mr. Thurgood at the Warringah Shire Council's Library. Mr. Thurgood had come to photocopy some documents in connection with a claim for worker's compensation. At some stage during the conversation Mr. Thurgood handed to him a handwritten letter which was addressed to Mr. Campbell-Dick and he read the letter. Mr. Hancox could not recall the exact wording of the letter, but shown a copy of a handwritten letter to Mr. Campbell-Dick dated 17 December 1977 concerning a personal loan, he said he identified the letter by its content and the name of the person to whom it was addressed. He said that at the time he recalled discussing with Mr. Thurgood the reasons why one type

of loan was preferable to another because of interest rates.

He did not claim to speak as to whether or not the letter was delivered to the bank.

It does not appear to me that this evidence would probably have an important influence on the result of the case even if it were tendered.

In the result, the applicant has failed in two respects to show that the evidence 1s of a type which we should allow to be received in evidence on an appeal. The conclusion to which I have come is that the present application should be

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