Practice and Procedure Cases

Question 1

Coulton v Holcombe (1986)

Answer 1

s 75(a) Supreme Court Act (NSW)

appellants recognize the Court of Appeal’s power under section 75A which allows
rehearing and
receiving further evidence.

BUT contend that the Court of Appeal’s decision departs from these powers’ traditional exercise.

Court allowed the appeal:

Supporting: interests of finality, justice, and adherence to established legal principles

Question 2

Fox v Percy (2003)

Answer 2

FUNCTIONS OF THE APPELATE COURT

75 (A) SCA - APPEAL BY WAY OF REHEARING

Issue: appellate court’s authority > reviewing trial judge findings of fact.

HELD: can intervene if facts are incontrovertible or the trial decision is glaringly improbable or contrary to compelling inferences.

appellate court’s duty to draw its conclusions based on primary facts.

Question 3

Lee v Lee

Answer 3

ISSUE: FUNCTIONS OF THE APPELATE COURT

S 37 Judiciary Act - HC has power to give such judgment as ought to have been given,

Facts: dispute - who was driving? two likely scenarios > both supported by conflicting expert evidence and contemporaneous witness accounts

Distinction: factual findings influenced by the credibility of witnesses or if they were purely drawn from the evidence presented.

High Court criticised Court of Appeal > not conducting a thorough review of the evidence.

Emphasised the importance of a “real review” in circumstantial cases.

Question 4

Suttor v Gundowda Pty Ltd

Answer 4

appeals are not de novo hearings.

rule is strictly applied.

error that you rely on must be raised at trial

will only allow a new point to be raised, if during the trial, there was no opportunity to present evidence that could have made a significant difference to the success of that new legal point