Gupta v Australian Capital Territory [2011] ACTSC 43

As leave to file the final submissions was neither sought nor granted, authority requires that they should be ignored except for para 66 and the material to which that paragraphs refers: Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246 at 258 per Mason J; In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 at 890 [53]- [54] per Kirby J; Dwyer v Commonwealth Bank of Australia (1995) 31 ATR 48; Kirwan v Cresvale Far East Ltd (In liq) [2002] NSWCA 395; (2002) 44 ACSR 21 at [340] per Young CJ in Eq; Chapmann v Caska [2005] NSWCA 113 at [19] per Beazley, Giles and Tobias JJA. As Mason J said in Carr and Kirby J in ex parte the Commissioner of Police, the notion that supplementary submissions can be filed without leave is misconceived and this is so even if the other party to the proceedings consents. It should not occur.

4. If there were a basis for further submissions then the proper way to address the issue is to make application for leave to provide further submissions by filing and serving an Application in Proceedings under Pt 6.2 of the Court Procedures Rules 2006 (ACT).

5. In this case, however, it was not merely the making of the additional submissions, short though they were, but additional evidence was sought to be adduced.

6. This would require the re-opening of the plaintiff's case. The court, of course, has power to grant leave for further evidence-in-chief to be adduced, even after trial: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (at 266-7). There are, as Kenny J pointed out in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 (at [24]), four recognised classes where a court may grant leave to re-open; one of these is for the adducing of fresh evidence.

7. In such a case, the grant of leave is not automatic. As Muirhead J identified in Murray v Figge (1974) 4 ALR 612 (at 613-4), fresh evidence will be admitted only when:

(a) it is so material that the interests of justice require it;

(b) the evidence if believed would most probably affect the result;

(c) the evidence could not by reasonable diligence have been discovered before;

(e) no prejudice was suffered by the other party by reason of its introduction at a late point of time.

8. In Bing! Software Pty Ltd v Bing Technology Pty Ltd (No 2) [2008] FCA 1761, Collier J (at [15]) added:

• it is necessary that the evidence sought to be adduced is relevant within the meaning of s 56 Evidence Act 1995 (Cth) and is of probative value (cf Australian Securities and Investments Commission v Rich [2006] NSWSC 826 at [18]); and
• the court must be conscious of the principle of finality of litigation in deciding whether to exercise discretion to allow evidence after the conclusion of the trial (Bradshaw [2006] FCA 22 at [25]).

9. As can be seen, such an application is not automatically granted.

10. Even though in this case the evidence was a letter apparently written by the defendant's solicitors, there may well be reasons why the defendant would object to the tender and the objection upheld. This is not possible to manage properly through correspondence or the unilateral filing of material.

11. I note that the solicitor for the defendant has written that Dr Gupta's lawyers have misrepresented the letter and sought an opportunity to make submissions.

12. Since no application in proper form has been made to relist the matter, that is by application in proceedings, I have ignored the submissions. My decision on the proceedings had by then been completed, though not delivered.

13. As a result, I have delivered my decision earlier today and now publish these further short reasons.

14. I make one final comment. The letter from the plaintiff's lawyers was addressed to "ACT Supreme Court Registry" and marked "Attention: Associate to his Honour Justice Refshauge". The salutation of the letter was "Dear Associate". That is the incorrect way to approach such a matter. The salutation should match the addressee not the person for whose attention the letter is marked. Thus, the letter in this case should have been addressed to "Associate to his Honour Justice Refshauge, ACT Supreme Court, etc" when the salutation "Dear Associate" would have been correct. As the letter was actually addressed, namely to the Registry, the salutation should have been "Dear Sir or Madam" or perhaps more strictly "Dear Registry".

15. I personally consider letters should be addressed to persons; the Registry is not a person. Perhaps it could have been addressed to the Registrar

16. While many things become more relaxed in contemporary society, I do not see that what is ordinarily very simple, namely addressing a letter to the person to whom it is actually being sent, especially if that is the person you really mean to read it because that is the person mentioned in the salutation, should be made more complex by the rarely appropriate approach of this correspondence.

17. The affectation of marking letters for the attention of a particular person should be reserved for proper occasions when it is required.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of His Honour, Justice Refshauge.

Solicitor for the defendant: ACT Government Solicitor