French v Bremner [2020] NSWCA 299

French v Bremner [2020] NSWCA 299

Except for the evidence concerning the 6 September 2020 webinar, the additional evidence Mr French sought to adduce predated the trial and he did not establish that it could not have been obtained with reasonable diligence for use at the trial. That failure was sufficient to refuse the application in substance. The post-trial webinar evidence did not require special grounds, but because the Court and respondent did not have the material available for effective submissions, that part of the application was stood over to the hearing of the appeal.

Jurisdiction
Australia
Judgment Date
19 November 2020
Procedural Posture
Appeal From Dismissal of Cross Claim and Relief Granted After Trial; Notice of Motion to Adduce Additional Evidence on Appeal / Procedural Ruling Before Hearing of Appeal
Outcome
Application to adduce evidence of the 6 September 2020 webinar stood over to the hearing of the appeal; otherwise notice of motion dismissed; costs reserved.
Legal Topics
['additional Evidence on Appeal' 'fresh and Further Evidence' 'special Grounds' 'reasonable Diligence' 'cross Vesting Jurisdiction']
['civil Procedure' 'appeals'] ['additional Evidence on Appeal' 'fresh and Further Evidence' 'special Grounds' 'reasonable Diligence' 'cross Vesting Jurisdiction']

Case Brief

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Procedural Posture

Appeal From Dismissal of Cross Claim and Relief Granted After Trial; Notice of Motion to Adduce Additional Evidence on Appeal / Procedural Ruling Before Hearing of Appeal

Legal Issues

  1. 1 ['Whether the appellant should be permitted to adduce additional evidence on appeal from a judgment after trial.' 'Whether evidence predating the trial satisfied the requirement of special grounds under s 75A of the Supreme Court 1970 (NSW).' 'Whether evidence of a webinar dated 6 September 2020, occurring after the trial, should be dealt with at the appeal hearing.' 'Whether s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) might prevent the Court from hearing the appeal because part of the dispute concerned patents.']

Ratio Decidendi

Except for the evidence concerning the 6 September 2020 webinar, the additional evidence Mr French sought to adduce predated the trial and he did not establish that it could not have been obtained with reasonable diligence for use at the trial. That failure was sufficient to refuse the application in substance. The post-trial webinar evidence did not require special grounds, but because the Court and respondent did not have the material available for effective submissions, that part of the application was stood over to the hearing of the appeal.

Court Disposition

Application to adduce evidence of the 6 September 2020 webinar stood over to the hearing of the appeal; otherwise notice of motion dismissed; costs reserved.

Orders

  • ['Stand over the application to adduce additional evidence, in so far as it concerns evidence of the webinar dated 6 September 2020, to the hearing of the appeal.' 'Otherwise dismiss the notice of motion dated 30 October 2020.' 'Costs reserved.']