EB v CT

[2] The guiding principle in deciding whether to grant leave to re-open is whether or not the interests of justice are better served by allowing or rejecting the application.[1] Reference is made in Finborough Investments Pty Ltd v Airlie Beach Pty Ltd[2] and in the cases referred to in it to the need for finality in litigation.

[3] In Smith v New South Wales Bar Association[3] the High Court stated that different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. As to the former situation, the court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.

[4] In Reid v Brett[4] the criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered, were said to be as follows:

(a) the further evidence is so material that the interests of justice require its admission;

(b) the further evidence, if accepted, would most probably affect the result of the case;

(c) the further evidence could not by reasonable diligence have been discovered earlier; and

(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

[5] Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.

[6] The application to re-open is not to overcome a technical defect in the evidence or to tender evidence that was omitted by inadvertence. The application seeks to raise a new issue, namely the current value of certain assets of one of the parties, whereas the issue litigated at the hearing was the assets, financial resources and liabilities of the parties at the date of the hearing. It is impossible to see how the respondent could be permitted to call evidence of the current value of some of his assets without, in fairness, opening up the general issue of the current value of the parties' assets. To do otherwise would be to fall into error. It would be wrong to determine the matter on the basis of the current value of some assets and the value as at the date of the hearing of the balance of the assets.

[7] The further evidence is not so material that the interests of justice require its admission. The relevant issue is the value of the parties' property at the date of the hearing. The interests of justice do not require the admission of the evidence to determine that issue. It is contrary to the interests of justice to re-open the evidence to enable the value of assets to be re-assessed according to their values at dates after the respondent's case closed and after the hearing was concluded.

[8] The further evidence, if accepted, would not probably affect the result of the case. Movements in the market value of shares in the weeks since the trial concluded is not a particularly material factor in determining a just and equitable property adjustment order. It is a fact of life that property values, including shares and real estate, will appreciate or depreciate according to market forces. Finality in litigation requires cases to be decided on the basis of the evidence led at trial. If an

ex tempore judgment had been delivered at trial the parties' assets would have been subject to market movements after the trial. The judgment would not be open to revision because of movements in the market that occurred after the trial. This is a feature of a system of justice that seeks to finally resolve disputes on the basis of the evidence as it stands at trial.

[9] In a sense the evidence is "fresh" or "new" evidence, being evidence which has arisen since the trial. However, the applicant has left it until the morning upon which a reserved judgment is to be delivered to make the application and this heightens the prejudice to the applicant and to the administration of justice.

[10] The late admission of the further evidence would prejudice the other party. This is the primary consideration identified by the High Court in Smith.[5] It would require evidence to be called, further submissions and a consideration of the current value of not simply the respondent's superannuation fund and his parcel of Rio Tinto shares, but the applicant's superannuation fund, the parties' real estate and other property. The additional costs and delay involved are prejudicial. To allow the new evidence to be introduced would further delay already protracted litigation and undermine the important principle of finality in litigation.

[11] To return to the governing principle, namely whether or not the interests of justice are better served by allowing or refusing leave to re-open, I conclude that the interests of justice are better served by refusing leave.

[12] I dismiss the application for leave to re-open the evidence.

[1] Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12 at 16-17, cited with approval in Emaas Pty Ltd v Mobil Oil Australia Ltd [2003] QCA 232 at [19]; see also Xu v Thurgood [2008] QSC 288 at [58]- [60].

[3] [1992] HCA 36; (1992) 176 CLR 256 at 266-267.

[4] [2005] VSC 18 at [41].