[17] There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be reopened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to reopen to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the reopened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.
[18] The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the reopened issues would be hard to define and as difficult to protect. The reopened hearing would then be bedevilled by arguments about whether one party or the other was seeking to take advantage of the reopening to polish parts of its case which were more or less within the scope of the reopened proceeding but not clearly on one side or the other of the prescribed limits.
[19] This case serves as an example. His Honour restricted the evidence which the respondent would be permitted to lead on the rehearing to 'evidence of the kind referred to' in the specified affidavits. Yet already there are complaints, which may or may not be justified, that the respondent has sought to introduce, within the interstices of the materials which it has been given leave to file and serve, evidence which does not meet his Honour's description. The appellant contends that a whole new field of discovery, not properly confined, has been invaded by the respondent. In particular, it complains that the respondent seeks to take opportunistic advantage of the grant of leave to introduce evidence which supports what the appellant characterises as an hitherto entirely unexplored aspect of the respondent's claim.
[20] The appellant's position warrants further, albeit brief, reference. The respondent intended to obtain finance for the manufacture of the fittings (referred to as 'Yes boxes') which, it alleges, the appellant contracted to have installed in the appellant's retail premises - some 106 stores throughout Australia. The financier from whom the respondent initially sought the requisite financial accommodation declined (for reasons with which this Court is not concerned) to provide it. The appellant contends that, if it were otherwise bound to proceed with the installation of the fittings, it was released from that obligation by the respondent's failure to obtain the funds without which the respondent could not fulfil its side of any bargain.
[21] The respondent now seeks to call evidence that it had another source of finance available to it. Such a claim was never made during the trial, and does not fall within the scope of the leave granted to the respondent by his Honour - or, at least, such is the appellant's contention. As the inevitable extension of this argument, the appellant asserts that it would be quite wrong to allow the respondent to enlarge its case in this way.
[22] It was differences such as this about the width and breadth of any reopening which, we suspect, was one of the reasons why agreement could not be obtained about the formulation of the summary of facts and issues.
[23] There is another, fundamental, reason why this appeal must succeed. Were the trial to be reopened, two documents - the judge's memorandum of 23 March 2011, and his judgment of 23 June that year - would assume pivotal importance, no matter how hard the judge and the parties might seek to keep them entirely off-stage. In the circumstances which would then obtain, they could not but influence the way the parties - and especially the respondent - tailored their reopened cases. They could not, in those circumstances, be described otherwise than as the vehicles by which the respondent's case on damages had been reopened; and not merely reopened, but reopened with the benefit of the judge's observations about the very same deficiencies which were the reason for the reopening in the first place.
[24] We should refer to two authorities upon which reliance was placed during argument on the appeal. The earliest in time is Inspector-General in Bankruptcy v Bradshaw. The applicants had 'from the commencement of the proceeding ... determined to carry their case without seeking to quantify their loss.' They then sought leave to reopen their case for the purpose of pursuing the very quantification which they had originally spurned.
[25] Kenny J refused the application. There were, in her Honour's opinion four recognised classes of case in which a court may grant leave to reopen; and the appellants could not bring themselves within any of them. The four classes (with which we respectfully agree) are: (i) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; and (iv) where there has been a mistaken apprehension of the law.
[26] These classes are not closed; but the present case shares with Bradshaw the distinction that it falls into none of them, and no applicable new category is suggested. The overriding principle is that the court consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen. We are satisfied that, in the present case, it does not.
[27] The second case to which reference should be made is Brown v Dream Homes SA Pty Ltd. The appellant, Ms Brown, bought a home after the respondent, which she had engaged for the purpose, carried out an inspection and pronounced the house structurally sound. So (as a subsequent further inspection established) it was; but the respondent's report failed to mention the existence of a crack, noticed by the inspector, which indicated the possibility that it was not. In the meantime, Ms Brown determined to sell, and claimed damages for the costs thrown away in her original purchase and subsequent sale.
[28] The Full Court of the Supreme Court of South Australia upheld the magistrate's finding that the appellant would have opted out of the purchase during the prescribed 'cooling off' period had the crack then been brought to her attention. A more difficult question was whether the appellant should be allowed to reopen her case to claim the correct measure of her damages - which, as the Full Court unanimously held, differed from that which she had claimed in the Magistrates Court and which the magistrate had allowed.
[29] The Full Court decided by a majority (Doyle CJ and Kourakis J) that her application to reopen should be remitted to the judge of the trial division who heard the appeal from the magistrate. The basis upon which Doyle CJ came to that decision, with which we respectfully agree, is apparent from the following passages from his Honour's judgment: