Lowe v Pascoe [2012] NSWSC 740

Lowe v Pascoe [2012] NSWSC 740

Section 89 of the Civil Procedure Act 2005 gives the new judge a discretion as to the evidence to be used in the fresh trial and does not confer on parties a right to adduce further evidence or to cross-examine generally witnesses called before the original judge. Because five liability questions had already been resolved by Smart AJ, no utility would be served by allowing fresh evidence or examination or cross-examination on those questions; subject to the part heard fresh evidence application, any further evidence or recall of witnesses should be confined to the three unresolved questions and allowed only by the new judge on application or by agreement.

Jurisdiction
Australia
Judgment Date
29 June 2012
Procedural Posture
Procedural and Other Ruling in Equity Division Proceedings / Directions for Evidence to Be Used in a Fresh Trial After the Original Judge Was Unable to Conclude a Part Heard Trial
Outcome
Directions made limiting the use of additional evidence and recall of witnesses in the fresh trial to the unresolved questions, subject to the part heard application and any further application or agreement; quantum hearing directions reserved.
Legal Topics
['fresh Trial' 'part Heard Trial' 'judicial Incapacity' 'use of Evidence From Previous Trial' 'recall of Witnesses' 'statutory Interpretation']
['civil Procedure' 'equity'] ['fresh Trial' 'part Heard Trial' 'judicial Incapacity' 'use of Evidence From Previous Trial' 'recall of Witnesses' 'statutory Interpretation']

Case Brief

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Procedural Posture

Procedural and Other Ruling in Equity Division Proceedings / Directions for Evidence to Be Used in a Fresh Trial After the Original Judge Was Unable to Conclude a Part Heard Trial

Legal Issues

  1. 1 ['Whether evidence given before the original judge should be taken to be evidence in the fresh trial without recalling witnesses.' 'Whether any additional evidence should be limited to questions unresolved by the original judge or whether parties have a right to tender further evidence and cross-examine generally witnesses called before the original judge.' 'How ss 88 and 89 of the Civil Procedure Act 2005 apply where a judicial officer is unable to continue a trial by reason of incapacity.']

Ratio Decidendi

Section 89 of the Civil Procedure Act 2005 gives the new judge a discretion as to the evidence to be used in the fresh trial and does not confer on parties a right to adduce further evidence or to cross-examine generally witnesses called before the original judge. Because five liability questions had already been resolved by Smart AJ, no utility would be served by allowing fresh evidence or examination or cross-examination on those questions; subject to the part heard fresh evidence application, any further evidence or recall of witnesses should be confined to the three unresolved questions and allowed only by the new judge on application or by agreement.

Court Disposition

Directions made limiting the use of additional evidence and recall of witnesses in the fresh trial to the unresolved questions, subject to the part heard application and any further application or agreement; quantum hearing directions reserved.

Orders

  • ['The entirety of the evidence before Smart AJ is to be taken to be the evidence in the fresh trial without the need for the witnesses to be recalled.' 'Subject to the part heard application to receive fresh evidence, any further evidence to be used in the fresh trial is limited to the resolution of the three...