Dwyer v Railway Commissioners (NSW) [1908] HCA 18; (1908) 5 CLR 686 (5 May 1908)

HIGH COURT OF AUSTRALIA

Dwyer Plaintiff, Appellant; and The Railway Commissioners of New South Wales Defendants, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

5 May 1908

Griffith C.J., Barton and O'Connor JJ.

Appellant in person.

Garland, for the respondents.

The Appellant entered upon his argument as to the merits of the application, but as this turned wholly upon the particular facts of the case and involved no general principle, it is not necessary to report it in detail.

Garland, for the respondents,

Griffith C.J.

The first point raised in this case is whether Rule 151 of the Rules of the Supreme Court is so far imperative that the Full Court were justified in the circumstances of the present case in refusing to entertain an application by the plaintiff for a rule nisi for a new trial. Now, so far as I understand, it has been the unvarying practice of the Supreme Court that a party, after a trial by a jury, has a right to apply for a new trial, on complying with certain conditions as to time, procedure, and so on. It has also always been the right of a party to appear in person or by counsel, or by his solicitor, when a solicitor is allowed to appear. If that were a privilege given by a rule of Court and not a right given by law, it might be hedged in by any conditions that the Court thought fit to impose, as, for instance, when a person is applying for leave to sue in forma pauperis the Court imposes as a condition in some cases that an opinion must be given by counsel, in order to show that it is a fit case for such leave. Rule 150, so far as is material, provides that when either party intends to move for a nonsuit, or for a new trial, he shall within a certain time after the trial file a memorandum of such intention; and by Rule 151 the memorandum is to state the day or days on which the cause was tried, the verdict or other termination of the trial, the motion intended to be made, and the grounds, and "where the party had counsel at the trial, shall be signed by one of such counsel." That is to say, in effect, that if a party employs counsel at the trial he shall not be afterwards allowed to exercise this right in person. If that were imperative it might give rise to serious questions as to whether the Court can by such a Rule of Court deprive a suitor of his right to be heard. But the Rule has always been construed by the Supreme Court itself as one which may be relaxed on occasion; not as an absolute rule, but as a rule of convenience. In the present case the ground of relaxation put forward on behalf of the appellant is that the retainer of the counsel who appeared for him at the trial had come to an end, and he, therefore, had no counsel. He, therefore, was in this position, that he was under the necessity either of retaining new counsel or abandoning his right to apply for a new trial. Under these circumstances we thought that the rule, construed as the Supreme Court has always applied it, should have been relaxed, and the plaintiff should have been heard on his application for a rule nisi, and for these reasons we allowed him to be heard on the merits of the application.

As to the merits, it is clear that the plaintiff has none. There was a conflict of evidence and the jury found a verdict for the defendants. Two of the grounds of the plaintiff's application for a new trial are that the verdict was against evidence, and that it was against the weight of evidence. As to those grounds nothing is now said. The third ground was that the learned Judge who presided made some observations as to the effect of a certain document shown to a witness in cross-examination by counsel for the plaintiff. All that that amounted to was a comment by the learned Judge on the weight of the evidence, and that is not a ground for granting a new trial. The fourth ground was the wrongful rejection of evidence. But upon the issue presented to the jury that evidence was altogether irrelevant, and was therefore rightly rejected, if it was formally tendered, as to which there is some doubt.

It is suggested by the plaintiff that, when the memorandum was filed and before the case came before the Supreme Court, he discovered fresh evidence, and that he had affidavits on the point ready to be filed if he had been allowed to be heard, and that he would have then asked for leave to amend the memorandum, if necessary, and the Court might have granted him leave to do so. We asked him to state the reason of his not having discovered the evidence earlier and the nature of the evidence. For it is not enough to have discovered fresh evidence; it must also be shown to the satisfaction of the Court that the party could not by reasonable diligence have discovered it earlier. But it appears that whatever he may have discovered would have been quite irrelevant. In my opinion, therefore, if the application had been heard by the Supreme Court, the rule nisi ought to have been refused.

Barton and O'Connor JJ.

concurred.

Appeal dismissed.

Solicitor, for the respondents, J. S. Cargill.