Straits Contracting (PNG) Pty Ltd v Branfill Investments Limited

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [1988] PNGLR 239
• Year: 1988
• Date: 21 December 1988

Supreme Court: Bredmeyer J, Los J, Hinchliffe J

Judgment Delivered: 21 December 1988

1 Appeal—interlocutory order—fresh evidence—leave to adduce fresh evidence after close of evidence but before final addresses

2 Companies—petition to wind up—ground that issue and allotment of shares was unfair or unjust to one shareholder

3 EVIDENCE—Admissibility—Fresh evidence—Re–opening case—Discretion of court—Relevant considerations—Whether ruling on admission of appealable.

4 APPEAL—Leave to appeal—From discretionary interlocutory ruling—From leave to adduce fresh evidence—Care in granting.

Held:

(1) An application by a party to re–open his case to admit "fresh evidence" is a matter within the discretion of the court as to which the following matters, inter alia, are relevant:

(a) that the fresh evidence would, if believed, probably affect the result;

(b) that the fresh evidence could not with reasonable diligence have been discovered before;

(c) that the fresh evidence was not omitted by inadvertence; and

(d) that the fresh evidence was not omitted by deliberate inadvertence.

Parao Tunboro v MVIT [1984] PNGLR 272, approved and followed.

(2) The Supreme Court should hesitate to overturn a trial judge on a discretionary interlocutory ruling.

Parao Tunboro v MVIT [1984] PNGLR 272 referred to

Leave to appeal

This was an application for leave to appeal against rulings permitting a petitioning creditor, in proceedings to wind up a company, to adduce fresh evidence after the close of evidence but before final submissions.

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By the Court: In this case after the conclusion of argument we reserved overnight and, on the next day, 2 December 1988, we announced our order. In each case leave to appeal was refused and the appeal was dismissed with costs. We certified the case as an appropriate one to engage overseas counsel. The question of costs on an earlier stay was reserved to the trial judge. We said we would publish our reasons later and this we now do.

The appellant seeks leave to appeal against two orders made by Konilio AJ on 8 August 1988 and...