[1967] VR 687
PAUL v WATTS
SUPREME COURT OF VICTORIA FULL COURT
WINNEKE (1) CJ, LITTLE (1) and NEWTON (1), JJ
24-28 April, 05 May 1967
[1967] VR 687
Appeal — Verdict regularly obtained — Fresh evidence available — Availability
and character of evidence — Reason for non-production at trial — Likelihood
that opposite result would have been obtained — Lack of diligence in procuring
evidence for trial.
.
At the trial of an action relating to an intersection collision at night the
only two witnesses were the plaintiff who said she had no recollection of
anything subsequent to the time when her memory failed about four miles from
the point of collision but that her headlights were then on, and the defendant
who said that at the time of the collision her headlights were not on. The
jury found the defendant 60 per cent responsible and the plaintiff 40 per cent
responsible. Immediately after the trial the defendant met a man who claimed
to have witnessed the accident who said that the plaintiff's lights were not
on at the time of the accident. The defendant appealed on the ground, inter
alia, that fresh evidence on the issue of liability was available.
Held by the Full Court (Winneke, CJ, Little and Newton, JJ), dismissing the
appeal: (1) the defendant had not satisfied the Court that had the alleged
fresh evidence been placed before the jury, they would have returned an
opposite verdict.
(2) In any event, on the facts it was not shown that the appellant had
exercised reasonable diligence to procure the further evidence for production
at the trial.
Wollongong Corporation v Cowan (1955) 93 CLR 435, at p. 444; Orr v Holmes
(1948) 78 CLR 832, at p. 644; Commissioner for Government Tram and Omnibus
Services v Vickery (1952) 85 CLR 635, at pp. 642, 645, applied.
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[1967] VR 687
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