The hearing on 14 October 1999
22 When the motion was called on for hearing Ms Williams announced that the applicants were unrepresented and that she was representing both applicants. In response to his Honour's enquiry as to the relief they were seeking, Ms Williams responded that they wished to bring matters before the Court which had not been looked at by the earlier Court. Ms Williams said she relied upon her affidavit sworn 2 October 1999. His Honour put to Ms Williams that the essence of the affidavit was that the applicants were seeking to agitate matters upon which Sweeney J had made findings. Ms Williams agreed with that proposition. His Honour then referred to the written submission which Ms Williams had handed up on 6 October 1999 and marked it for identification. The following exchange then occurred:
"HIS HONOUR: But, the submission seem to cover similar ground to what's in your affidavit?
MS WILLIAMS: It is the same sort of thing, yes, your Honour, without sort of going to the explanation of it.
HIS HONOUR: Yes, and in essence it's this, is it, that you say that Sweeney Js findings of fact should be looked at again because you say you have some material, you say, of a very serious nature to deal with photographs, that sort of thing.
MS WILLIAMS: Exactly, that's right.
HIS HONOUR: And this goes to the condition of the premises?
MS WILLIAMS: Exactly, your Honour."
There was then a dialogue between his Honour and Ms Williams in relation to the missing photographs which had been found and the manner in which the Full Court hearing the appeal from Sweeney J had dealt with that issue.
23 His Honour then asked Ms Williams to be seated whilst he read her affidavit and written submission (both of which he had earlier looked at briefly). Having done this he asked Ms Williams whether the essence of her claim was found in par 54 of the affidavit. Ms Williams responded:
"Yes, I would say so, your Honour, yes, just looking quickly down there."
Paragraph 54 raised a number of issues as to the photographs of the hotel.
24 There was then further dialogue between his Honour and Ms Williams in relation to the photographs and his Honour then put to Ms Williams that he wanted her to tell him why he should not stay the proceeding as an abuse of process. His Honour put to Ms Williams that she was seeking to re‑agitate issues that had been looked at by Sweeney J, Branson J and two Full Courts which had heard appeals from those judges and that she wanted to go back over the same ground. Ms Williams said that that was not the position and she referred to one of the matters dealt with in her affidavit, namely that it had not been the Official Trustee who had considered the proofs of debt but rather his solicitor who had obtained information from the first lessee Mr Wiggins and Mr Bowen, a director of Welona. His Honour indicated to Ms Williams that he did not find these matters helpful, he repeated that she was trying to agitate the issues dealt with by Sweeney J and he then said "Now, thank you, I've heard you". His Honour asked Ms Williams to resume her seat and he then asked Mr Wilson whether there was anything he wished to say. The following dialogue then occurred:
"MR WILSON: I do wish to say, your Honour. We have a person here I would like you to hear under oath, today.
HIS HONOUR: But I'm not a Royal Commission.
MR WILSON: I don't want - this person here has seen the hotel. He's a building inspector. Prior to us vacating the premises, he's had a meeting with Mr -
HIS HONOUR: I can understand why you are upset.
MR WILSON: No, you don't.
MS WILLIAMS: Your Honour, we're losing everything.
HIS HONOUR: You've got a very serious dispute but I can only deal ---
MR WILSON: No, but if you just listen to me. This man had a meeting with Mr Cruikshank, he informed Mr Cruikshank about the condition of the hotel.
HIS HONOUR: But I don't - - -
MR WILSON: Let me finish. Mr Cruikshank told him certain things which I think the court should hear and you should listen to what Mr Farthing has to say, please.
HIS HONOUR: Well, obviously I would if this were - if you could just hear me for a minute. If I were here in 1992, before Sweeney J, obviously I would hear all of these things but there's a limit ---
MS WILLIAMS: We don't know.
MR WILSON: We didn't know. This man has come forward since. Sweeney J ---
HIS HONOUR: But you have had two Full Courts, you have had two trial judges, we cannot provide any more.
MR WILSON: Your Honour, Sweeney J did not know about the false evidence. We didn't know. We didn't know about - we got told by the Trustee that we had no photographs and then they say they were mingled. How do you mingle 41 photographs into 45? It's an impossibility - two photographs you might, your Honour, but not 41. Now, that's just ridiculous."
His Honour then delivered his reasons for judgment.
25 After he concluded Mr Wilson said he wanted to ask him again:
"I beg of you to have Mr Farthing go in the box and speak to you about this."
His Honour said that he did not have any authority to do that because he could only deal with matters that were properly before the Court. The following dialogue occurred:
"MR WILSON: …We've got a person here that has seen the hotel, he's seen the hotel beforehand. Mr Cruikshank has interviewed the person.
HIS HONOUR: I can only deal with matters properly before this court. This matter is not properly before the court. That is the limit of my authority.
MR WILSON: But you made a statement there before when you were saying about if we could show you, or convince you, well I think if Mr Farthing is allowed to speak he will show you and convince you.
MS WILLIAMS: I found it difficult, your Honour, that you didn't want to listen about the evidence, the knowledge, that the Official Trustee had at the hearing before Sweeney J that wasn't a matter before the Appeal Court. That wasn't found until 1998 and you never listened to it. I find that difficult because that is new evidence."
26 In her outline of submissions filed with the Court for purpose of the appeal, and in oral submissions, Ms Williams was critical of the manner in which his Honour conducted the hearing. She submitted his Honour did not give the applicants the opportunity to present their case. We do not accept that submission. His Honour read the affidavit and written submission placed before him and gave Ms Williams the opportunity to respond to difficulties which he found in the material. In particular, his Honour gave Ms Williams the opportunity to respond to his concern that the applicants were seeking to re‑litigate issues which had already been heard and determined by earlier courts.
27 In the written outline of submissions filed for the purpose of the appeal the applicants said that they wished to set aside the decision of Sweeney J on three major points:
(a) photographic evidence which had been tampered with;
(b) freedom of information documents obtained in 1996;
(c) a creditor's false affidavit prepared for the Official Trustee.
Each of those matters had been raised in Ms Williams' affidavit and written outline of submissions which his Honour read. His Honour had sought clarification from Ms Williams as to the nature of the claims, namely that they involved a re‑consideration of Sweeney J's findings. The applicants were given full opportunity to place these matters before his Honour and they did so in writing. Once his Honour had understood the nature of the submissions on this issue, it was very much a matter for his Honour whether he asked Ms Williams any further questions. His Honour did not do so, no doubt taking the view it was not necessary. His Honour did not err in taking this approach. Having given the applicants the opportunity to make their point, it was for his Honour then to consider it. He did so and, in our view, reached the correct conclusion - the applicants' submissions were an attempt to raise again the same matters considered by the Full Court on appeal from Sweeney J.
28 We are satisfied that the primary judge gave the applicants full opportunity to present the case set out in the written outline of submissions, Ms Williams' affidavit and the case explained by Ms Williams in her oral submissions.
29 Mr Farthing's evidence raises different considerations as its existence and potential relevance was not clearly placed before his Honour on a consideration of the material before him and it was not adverted to orally by Ms Williams who said she was speaking on behalf of both applicants. There was no specific reference in the written outline of submissions to the evidence of Mr Farthing or that he had sworn an affidavit on 26 October 1998. Although Ms Wilson had said in par 101 of her affidavit sworn on 2 October 1999, which was before the primary judge, that she wished to refer to Mr Farthing's affidavit, Ms Williams' affidavit did not identify or explain the substance or contents of that affidavit nor the reason why it was sought to be relied upon; nor does the written submission. The written submission makes no reference whatsoever to Mr Farthing, nor to his affidavit or the nature of the evidence he could give.
30 At the time at which his Honour, in substance, had informed the applicants that he had heard enough from them, the applicants had not articulated before him what was said to be the new evidence which Mr Farthing could give. In substance that evidence was that in 1984 he had inspected the hotel and given a written report as to its then structural condition. He concluded that the hotel was in a bad state of repair. In his affidavit sworn 26 October 1998 he expressed the opinion that at the time of his inspection of the hotel in 1984 the structural defects would have taken many years, and at least fifteen years prior to this inspection, to be in the condition he observed them to be. He informed Mr Wilson of these matters in early 1997.
31 An examination of the transcript of the hearing before the primary judge shows that although the applicants contend that his Honour did not give them the opportunity to explain why they wanted to call Mr Farthing, who was then present in Court, his Honour was misled in that respect by the material which the applicants had placed before his Honour and the submissions they had made. It was not articulated to his Honour that what was sought to be led and be relied upon was the fact that Mr Farthing had inspected the hotel in 1984 and was able to express an opinion as to the state of the hotel at the time the applicants entered into occupation.
32 A careful reading of the transcript shows that his Honour had not been made aware of the nature of Mr Farthing's evidence and had assumed that the issues before him as to what was relied upon by the applicants as fresh evidence was set out in the body of Ms Williams' affidavit and her written outline of submissions. That was not the position.
33 However, the Court is satisfied that even if his Honour had been aware of the nature of Mr Farthing's evidence he would have been bound to have refused the applicants leave to rely on it as it was not, in substance, fresh or further evidence, nor was it highly likely to have produced an opposite result. Accordingly, he was bound to dismiss the motion to set aside the order of Sweeney J.
34 In order for the applicants to open the door to a consideration whether fresh or further evidence should be the subject of consideration for the purposes of setting aside an earlier regularly entered judgment it is necessary to establish that the evidence could not, with reasonable diligence, have been discovered or found out prior to the handing down of the judgment which is sought to be impugned.
35 The principles which govern the admission of further evidence are well established. At common law in order to obtain a new trial on the ground of the discovery of fresh evidence it was necessary to overcome the threshold that the evidence in question was not available at the trial and could not have been obtained by the exercise of reasonable diligence: Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435 at 444 per Dixon CJ. Once that threshold was overcome it was necessary to establish that if the evidence had been available at trial:
"… an opposite result would have been produced or, of it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary."
(Council of the City of Greater Wollongong v Cowan (supra) at 444 per Dixon CJ, see also Orr v Holmes (1948) 76 CLR 632; Commonwealth Bank v Quade (1991) 178 CLR 134.)
36 In CDJ v VAJ (1998) 157 ALR 686 the High Court held that the principles laid down in Council of the City of Greater Wollongong v Cowan (supra) were not determinative of the admission of further evidence in the Family Court, that issue being regulated by s 93A(2) of the Family Law Act 1975 (Cth) ("the Family Law Act") which is, in material respects, in similar terms to s 27 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court of Australia Act"). The majority of the High Court (McHugh, Gummow and Callinan JJ) said at 709:
"When regard is had to Pt X and its place in the scheme established by the Act, it is apparent that the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion. The discretion is more ample than the principles applicable in common law proceedings and applied in Wollongong Corporation. That, of course, does not mean that the discretion reposed in the Full Court by s 93A(2) is unfettered, a point recognised by the Full Court in In the Marriage of Abdo. Although the discretion to admit further evidence is not attended by any express words of limitation, the subject matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power."
Their Honours had earlier observed that the terms of s 93A(2) of the Family Law Act and s 27 of the Federal Court of Australia Act do not coincide but are similar and that both conferred a power to be exercised by the court "in its discretion" and both used the expression "further evidence" rather than "fresh evidence". Their Honours continued at 710‑711:
The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that court and with the perceived purposes of s 93A(2).
…
The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section."
37 Mr McGovern of counsel, who appeared for the second respondent, submitted that Mr Farthing's evidence did not fall into the category of "fresh" or "further evidence". This submission relied upon the following analysis which is derived substantially from Mr Farthing's affidavit.
38 Mr Farthing had been employed by the Waverley Municipal Council between 1954 and 1985 in various positions which included senior building surveyor and legal officer. In late 1984 he was asked by Mr Murphy, the solicitor for Mr Wilson, to inspect the hotel because of his qualifications as a building surveyor and to make a written report as to its structural condition. He visited the hotel as requested and compiled a written structural report which he delivered to Mr Murphy. During his inspection of the hotel he met Mr Wilson and prior to leaving the hotel he told Mr Wilson that the hotel was in a "dilapidated and insanitary condition" and that he should report the condition to the local council who would require the owner to repair the structural defects or serve a closing order under the provisions of the "Public Health Act".
39 The written structural report which Mr Farthing delivered personally to Mr Murphy contained an itemised list of the defects. On 22 April 1991 Mr Wilson swore an affidavit which was filed in the proceeding which was ultimately heard by Sweeney J. That affidavit is Exhibit PLW‑15 to Ms Williams' affidavit of 2 October 1999 sworn in support of the motion to set aside the judgment of Sweeney J. In par 9 of Mr Wilson's affidavit he said:
"Exhibited before me at the time of swearing this affidavit and marked "EAW1" are 41 colour photographs that I caused to be taken in about April 1983. These photographs depict many of the structural defects which were present at the time the applicants entered into the lease and of the consequential damage caused by the defective condition of the premises. The nature and extent of these defects were communicated to Bowen by me orally on a number of occasions from the time of taking possession of the premises until about September 1984. The defects shown in the photographs included: …"
In fact no photographs were exhibited to the affidavit. There is then set out a list of numbered and itemised defects under various headings such as "Externally", "Bedrooms Located at First Floor Level" and other headings relating to other parts of the hotel.
40 In his affidavit Mr Farthing said that he has been shown those pages in "Mr Wilson's Appeals Book" which is apparently a reference to the appeal book before the Full Court which heard the appeal from the judgment of Sweeney J as the pages bear sequential numbers which appear to be the numbers of an appeal book. Mr Farthing annexed a copy of those pages to his affidavit and said that the structural report referred to under the headings to which we have referred "was in fact my report" including some general comments at the end.
41 It is therefore apparent that prior to the proceeding coming on for hearing before Sweeney J, not only had Mr Wilson met Mr Farthing and had the benefit of his observations as to the state of the hotel, he had also seen Mr Farthing's detailed report on the structural condition of the hotel. Indeed Mr Wilson had incorporated in par 9 of his affidavit a defects list prepared and supplied directly by Mr Farthing.
42 It cannot be said therefore that Mr Farthing's evidence is fresh or further evidence. Although it might be said that he did not express the view at the time he spoke to Mr Wilson in 1984 that the state of the hotel which he then observed must have existed for some considerable time and would have existed at the time of the commencement of the applicants' occupation of the hotel, the point is rather that the existence of Mr Farthing was known to Mr Wilson and his solicitor as was the fact that he had given a detailed report on the structural condition of the hotel from which conclusions might be drawn. His Honour was therefore bound to refuse the application for leave to rely on Mr Farthing's evidence.
43 There is a further reason why his Honour was bound to refuse to allow the applicants to rely on Mr Farthing's evidence. We do not consider that there is any basis upon which it can be said that Mr Farthing's evidence would have produced a different result at trial. The effect of the admission of Mr Farthing's evidence would be that there was then available further evidence of an opinion as to the state of the hotel in 1980. Mr Farthing had not seen the hotel in 1980 but concluded from his inspection in 1984 that the state of the hotel must have been poor in 1980. However, there was other evidence to the contrary before Sweeney J, namely the evidence of Mr Bowen, a director of Welona, and the evidence of Mr Bell, the chartered architect who had relied on the reports of Mr Benson who had inspected the hotel on 12 May 1983 and 28 January 1985. Mr Bell had given evidence before Sweeney J and had been extensively cross‑examined. His evidence was accepted by Sweeney J who noted in particular at 11:
"… his evidence that there had been 'accelerating vandalism and deterioration' of the leased premises during the period 1980 to 1985. I also accept the evidence of Mr Bowen as to the state of the premises in January 1980 rather than that of Mr Wilson."
Sweeney J referred in his judgment to passages of Mr Bell's evidence which included the following:
The question of things like plumbing had obviously - there'd been obviously major leaks in the not so distant past in terms of 1985. In terms of water damage to ceilings it was visible in photographs, with once again reference to where Benson talks about, you know, plumbing difficulties, leaks and so on. There was every good reason, every bit of supporting evidence to suggest it was happening in the early part of the 1980s. Yes, some aspects might have happened earlier, but all the evidence to my mind essentially established that the major deterioration not - well and over and above normal wear and tear happened basically in that period of time leading up to the mid 80s."
44 It can therefore be seen that if Mr Farthing's evidence had been before Sweeney J it would have been evidence which his Honour would have had to weigh with the evidence of Mr Bell and the directors of Welona. Thus, Mr Farthing's evidence would not have been decisive of the issue.
45 If the primary judge had allowed the applicants to lead evidence from Mr Farthing in the terms which are set out in his affidavit of 26 October 1998 and had allowed them to refer in detail to that affidavit, he was bound to conclude that in the circumstances the evidence did not satisfy the requirements for the admission of fresh or further evidence.
46 The consequence is that in all the circumstances leave to appeal should not be granted because any appeal on the ground raised by the applicants must fail.
47 The application for leave to appeal will be dismissed with costs.