Granitgard Pty Ltd ACN 007 427 590 v Termicide Pest Control Pty Ltd

REASONS FOR JUDGMENT 1 On 4 February 2009, I granted leave to Granitgard Pty Ltd (Granitgard) to reopen its case to adduce evidence from two gentlemen, a Mr Peter Gabriel and a Mr Grant Baverstock. 2 Mr Gabriel's evidence at that stage was a known quantity, in the sense that it reposed in the form of an affidavit from him, which was an exhibit to an affidavit from Ms O'Neill, of the solicitors for Granitgard. Mr Baverstock's was in a rather more general form, and its apprehended content at that stage reposed in a further affidavit, sworn by Ms O'Neill. 3 In the interlocutory judgment which I delivered, I canvassed the principles which are pertinent to the granting of leave to reopen to a party, and I made then further directions in respect of the filing of evidence or a précis of evidence and consequential directions in respect of a response by the Respondent, Termicide Pest Control Pty Ltd (Termicide). 4 Provision was also made for further disclosure. Thereafter, an affidavit of Mr Gabriel was filed on 20 February. It is fair to say that that affidavit goes beyond the terms of that which was exhibited to Ms O'Neill's affidavit. In so doing, though, it does not, in my opinion, transgress the bounds of a proper grant of leave, in the sense that it takes up and is responsive to, in the main, material which became a subject of further discovery. That material relates to properties which were canvassed by Mr Gabriel in the earlier affidavit. 5 For reasons which I can understand, and I do not in any way criticise Granitgard or its representatives for, the view was taken that Mr Gabriel's earlier affidavit was already on the court file. Hence, the further affidavit of Mr Gabriel is entitled "Second Affidavit of Peter Gabriel". In fact, there is no first affidavit of Mr Gabriel on the court file, only an exhibit to an affidavit of Ms O'Neill. That particular omission can be rectified in short order and without any prejudice to Termicide. 6 Insofar as the same is necessary, I grant leave to Granitgard to reopen its case to adduce evidence in the form of that which is contained in the affidavit of Peter Gabriel, filed on 20 February 2009. That grant of leave is subject to such just objections, if any, as may be raised by Termicide upon the calling of Mr Gabriel, if his attendance is required for cross-examination to confirm each of his affidavits. 7 There is, then, a question as to what to do in relation to the précis of evidence filed on 20 February 2009. It is the subject of an application for the reopening of Granitgard's case so as to lead evidence as to the material contained therein. In that regard, it is fair to say that the précis extends beyond that which was summarised in Ms O'Neill's affidavit. Quite how this came about is not presently the subject of evidence from Ms O'Neill. In the course of argument I indicated that I would be prepared to draw an inference that it followed from some further conversation with Mr Baverstock. 8 For Termicide, it was submitted that such a question ought not be left just to inference. There is some merit in that, and it would provide an explanation as to how Mr Baverstock came to apparently be more fulsome, were an affidavit to be filed. 9 In any event, a substantive challenge to the grant of leave to reopen, insofar as the contents of the précis extend beyond the summary in Ms O'Neill's affidavit, was focused upon an imprecision that one finds, so it was submitted, in the précis as to what the further evidence from Mr Baverstock would be. 10 In that regard, for example, reference was made to the following passage in the third paragraph of the précis: He is able to provide descriptions of the glass product that he installed, including contaminants in the glass. And in the second and last paragraphs of the précis one finds sentences which commenced: Mr Baverstock will give evidence about a discussion.. 11 The latter do not, as I read them, in either case give the effect of what that evidence will be, although that may, perhaps, just be a matter of drafting. As to the sentence I first quoted, the ability to provide descriptions does not give the effect of what those descriptions will be. 12 Leave to reopen ought to be given against a known and definite content of evidence. There is a difficulty, as the précis is presently cast, in finding that quality. For all that, the subjects which seem to be traversed in the précis are subjects in respect of which, having regard to the principles I canvassed in the earlier interlocutory judgment, I would be disposed to grant leave to Granitgard to reopen. 13 It seems to me that if, as Granitgard is, I am informed, able to give further precision, then the interests of justice do require that it be given that opportunity, in short order, to do that. There will still be sufficient time, in my view, for Termicide to take instructions about those matters prior to the resumption of the hearing in mid March; particularly, that is so, having regard to that which is already disclosed in the précis in respect of that which Mr Baverstock is apprehended to be able to give in evidence. 14 I should indicate that Mr Baverstock has apparently proved earlier reluctant to give an affidavit, although willing to speak to the solicitors for Granitgard. It would assist consideration of the granting of leave to reopen in respect of his further evidence for aspects of that reluctance, insofar as they have related to the material in the précis, to be covered in the affidavit of the solicitor for Granitgard who has spoken with him.