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

REASONS FOR JUDGMENT 1 The Applicant, hereafter Granitgard, has applied for leave to reopen its case to adduce further evidence. The further evidence that is sought to be led is from a Mr Peter Gabriel and a Mr Grant Baverstock. The nature of the proposed evidence to be led from Mr Gabriel is identified with quite some precision, in the form of an affidavit sworn by him, which is exhibited to an affidavit of the solicitor for Granitgard read on the application. It will be necessary to observe something further in relation to Mr Gabriel's evidence, as proposed, shortly. That of Mr Baverstock is in rather more abbreviated form in its proposed content, and reposes in a paragraph to be found in the solicitor's affidavit. It, too, requires further comment later. 2 The application is made at a time when both the case for Granitgard and the case for the Respondent, hereafter Termicide, have each closed. Submissions in the case are yet to be made and, obviously enough, judgment has not yet been given. The proceedings were commenced on 19 September 2007. In February last year, a trial was fixed to commence on 23 June. Interlocutory directions were made, which required Granitgard to file its evidence in chief by 18 April 2008, in anticipation of the trial then occurring in June. On 10 June, Granitgard made application for the trial dates to be vacated. That proved necessary, in light of a proposal which Granitgard had made to amend its statement of claim. That application was successful: see Granitgard Proprietary Limited v Termicide Pest Control Proprietary Limited [2008] FCA 865 (Collier J). 3 A sequel to the successful application by Granitgard for the adjournment of the trial was the making of further and revised directions in respect of the provision of evidence-in-chief by the parties. Granitgard, materially, was directed to file further affidavits-in-chief, if any, by 29 August 2008. That was in anticipation of a trial of two weeks duration, commencing 20 October 2008. The trial commenced at that time, but it did not finish within the time allocated. That allocation was made on the basis of submissions made by counsel as to its anticipated length. 4 In the course of what proved to be the original tranche of the hearing, Granitgard closed its case on 27 October 2008. The trial finally concluded, as far as evidence was concerned, at that point, with the closing of the Termicide's case on 4 December 2008. Provision was then made for the making of submissions, initially in writing and then orally. Oral submissions were appointed to commence on 10 February 2009. 5 That there is a jurisdiction to permit a party to reopen its case, so as to adduce further evidence, even after a statement has been made to the court that the party's case in evidence has closed is not in doubt: see, for example, Smith v The New South Wales Bar Association (1992) 176 CLR 256 at 266 to 267. 6 A useful starting point, in the context of an application such as this, is a passage which appears in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478: The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel. 7 An example of a case where leave to reopen was granted to a party, notwithstanding a deliberate tactical decision on the part of that party's representatives, initially, not to call the witness concerned, is to be found in an interlocutory judgment delivered by me in Olivaylle Pty Limited v Flottweg GMBH & Co KGAA (No 3) [2008] FCA 572 at paras 19 - 27 (which is presently the subject of a reserved judgment in respect of the substantive issues). 8 In the course of my reasons for judgment in that interlocutory application, I gained assistance from two judgments of the South Australian Supreme Court. I shall not refer in detail to those judgments, as they are reproduced in the interlocutory judgment which I delivered in Olivaylle. Those particular cases demonstrate, though, the extent of the discretion and the singularity of circumstance which may give rise to an exercise of a discretion to reopen, even in circumstances where a judgment has been delivered but an order has not yet been perfected. 9 In Inspector General in Bankruptcy v Bradshaw [2006] FCA 22 at para 24, Kenny J, with respect, offers a very helpful summary of circumstances in which a court will permit further evidence to be given. Her Honour lists four categories in which she opines that, broadly speaking, a court may grant leave to reopen. Her Honour is careful to note that these classes or categories are not exhaustive and overlap. The four classes that her Honour identifies by reference to authority are: