Case: CDJ v VAJ [1998] HCA 76 ; (1988) 197 CLR 172
Outcome: followed
power to receive evidence on appeal is given to the Court by s 27 of the Federal Court of Australia Act 1976 (Cth), which provides that the court has 'power ... in its discretion, to receive further evidence ...'. An identically worded provision in the Family Law Act 1975 was considered by the High Court in CDJ v VAJ [1998] HCA 76 ; (1988) 197 CLR 172. McHugh, Gummow and Callinan JJ referred to the established common law conditions under which new evidence might be admitted in an appeal by way of rehearing as articulated in Wollongong Corporation v Cowan [1955] HCA 16 ; (1955) 93 CLR 435, namely, that it was necessary both that the evidence sought to be adduced on appeal could not with reasonable diligence have been obtained for use at the trial, and that, if the evidence had been available at the trial, it was reasonably clear that an opposite result would have been produced (93 CLR at 444). In CDJ , their Honours held that these principles were inapplicable to a situation in which the discretion to admit further evidence did not arise under the common law but was given by statute (197 CLR at [97]). They held that the exercise of the discretion under a provision equivalent to s 27 of the Federal Court Act was essentially a matter of statutory construction, and should not be approached as though the common law principles 'conclusively indicate the proper construction of the statutory provision' (at [102]). In the exercise of the statutory power, their Honours held, the 'critical factor' was the subject matter of the proceedings with which the appeal was concerned, because 'the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry' (at [104]). They held that, under the statutory power, the court hearing the appeal 'weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion' (at [104]). A little later in their judgment, their Honours said that the common law rules as to the admission of fresh evidence 'cannot exhaustively define the scope of the discretion' under the statutory provision (at [108]; emphasis added). McHugh, Gummow and Callinan JJ then proceeded to advert to a number of considerations, any one of which may, in an appropriate case, influence the exercise of the judicial discretion to admit further evidence. First, they pointed out that the principal purpose of the statutory provision was to give the court a discretionary power to admit evidence which would demonstrate that the order under appeal was erroneous. This was a power which facilitated the avoidance of errors which could not otherwise be remedied by the application of conventional appellate procedures. Alternatively, and in practice in a subsidiary way, the purpose was to give the court discretion to admit further evidence to buttress the findings already made (at [109]). Secondly, their Honours referred to the principle that a provision conferring judicial power on a court should be construed liberally, and without the making of implications or the imposition of limitations not found in the words used by the legislature (at [110]). Thirdly, it was relevant that the appellate court was hearing an appeal against an order made in the exercise of original jurisdiction. It was unlikely that Parliament should have intended that the statutory provision (equivalent to s 27) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Fourthly, their Honours stressed that the availability of further evidence should not be treated as the equivalent of a ground of appeal, proof of which prima facie entitled the appellant to a new trial. Their Honours continued: "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." Fifthly, their Honours doubted the value of a 'usefulness' test, and rejected the proposition that an appellate court might admit further evidence merely because it was useful. Sixthly, the appellate court would 'readily' admit further evidence which was not in dispute, and which the court was able to evaluate and to take into account without the necessity for a rehearing. They noted that evidence of this kind was particularly likely to be admitted where it related to events occurring after the trial. In such a case the likely effect of the further evidence on the appellate court's view of the evidence before the trial judge was the important consideration. They continued: "Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial." Seventhly, their Honours said that the power to admit further evidence must be exercised judicially, adding a comment which related specifically to the Family Law Act but which, when considered more generally, amounted to the proposition that the discretion to admit further evidence should be affirmatively exercised only if that evidence were relevant and admissible according to ordinary principles, or by statute, and if there were no reason for suspecting the credibility of the evidence (at [115]). Eighthly, on the subject of a party's failure to adduce the evidence before the primary judge, their Honours said (at [116]): "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." The High Court judgment in CDJ has been considered twice by a Full Court. In Cottrell v Wilcox [2002] FCAFC 53 , the Full Court held that the judgment in CDJ was applicable to the discretionary power available under s 27 of the Federal Court Act (at [20]). Referring to that discretion, the Full Court said (at [21]): "That discretion is confined only by the requirement that it be exercised judicially and consistently with the judicial process: CDJ v VAJ at 185" It is, with respect, curious that the Full Court referred to page 185 of the Commonwealth Law Reports in this respect, since that page occurs within the reasons for judgment of Gaudron J, who dissented. Probably, however, the proposition upon which the Full Court relied is equally harmonious with the broad propositions underlying the judgment of the majority, McHugh, Gummow and Callinan JJ. Importantly for present purposes, I do not read Cottrell as precluding me from deriving guidance from the various specific considerations to which their Honours in the majority in CDJ referred, as set out above. The other Full Court judgment to which reference must be made is NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24. This was a judgment given on 25 February 2004 which, when amended by a corrigendum issued on 12 May 2004, contains the following passage: "In order for this Court to receive further evidence, generally speaking (cf : Cottrell v Wilcox [2002] FCAFC 53 ; [2002] FCA 232 at [18] [21], citing CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that, ... , an opposite result would have been reached by the primary judge')." Although this passage contains an echo of the common law criteria referred to in Wollongong Corporation , and held to be inapplicable under a statutory provision like s 27 in CDJ , the Full Court's reference to CDJ does, on my reading of it, make it tolerably clear that it considered that CDJ ought to be applied in the exercise of the discretion under s 27. Particularly, the Full Court statement that, in relation to the second condition, it was not enough that the new evidence was relevant and otherwise admissible, and may have affected the result, is in broad conformity with the fourth consideration adumbrated in CDJ to which I have referred in par [17] above.