Shaw v Yarranova Pty Ltd

The application to adduce further evidence 58 A Full Court hearing an appeal from a single Judge has power to admit further evidence: Federal Court of Australia Act 1976 (Cth) s 27. The "power to admit … further evidence exists to serve the demands of justice": CDJ v VAJ (1998) 197 CLR 172 at 202 per McHugh, Gummow and Callinan JJ. 59 Two considerations relevant to the exercise of the discretion to admit further evidence, and to the "administration of justice" to both the party seeking to introduce the further evidence and the opposing party, are whether the evidence sought to be adduced could have been obtained with reasonable diligence at the time of hearing and whether it may affect the result: NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [43] per Beaumont, Lindgren and Tamberlin JJ. It is ordinarily necessary for a party seeking to adduce further evidence to demonstrate that the evidence is "cogent": Freeman v National Australia Bank Limited [2003] FCAFC 200 at [57] per French, Cooper and RD Nicholson JJ. 60 In the present proceeding, Mr Shaw has filed an Interlocutory Application seeking leave to adduce further evidence. As explained in his oral submissions, that further evidence would go to the following two discrete issues: • whether judgments had been procured by "fraud" - namely whether the two judgment creditors were bona fide creditors or whether any loss or damage had been suffered or incurred by the MAB Corporation (or MAB Holdings Pty Ltd); and • Mr Shaw's solvency. Each should be considered separately. 61 As to the former of these two issues, the Interlocutory Application as filed sought an order permitting the service of "Notices to Produce, subpoenas and other documents in accordance with the court rules to obtain such evidence". 62 In respect to this issue there was no evidence presently available to be tendered. It may be doubted whether s 27 would permit the Court "to receive further evidence" where such evidence has not yet been secured and is not yet available for tender at the time of the hearing of the appeal. In such a case there may well be no extant "evidence" which would fall within the reach of s 27. A separate question may well arise as to whether the hearing of an appeal should be adjourned to permit a party to seek to obtain "evidence" not presently available. But there is no need in this appeal to determine the potential reach of s 27. 63 In this appeal there was not only no "evidence" available to be tendered. There was also no draft of any proposed Notice to Produce or Subpoena. The further evidence that was sought to be obtained by such means was, however, in the submission of Mr Shaw "in the same vein" as that which had been sought before the primary Judge. 64 The Interlocutory Application is both in terms and in substance not an application to adduce further evidence but an application that Mr Shaw be permitted to go forth and gather such further evidence and thereafter tender so much of that further evidence as he sees fit. 65 Insofar as the Interlocutory Application seeks leave to adduce such further evidence as may be obtained at some point of time in the future, it is to be dismissed. The further "evidence" sought to be obtained and adduced on appeal was essentially the same "evidence" as he sought to obtain and adduce before the primary Judge. Her Honour gave reasons for setting aside the Notice to Produce served by Mr Shaw during the course of the hearing which sought the production of documents of the same character: [2014] FCA 616 at [86] - [88]. No error is exposed in her Honour's reasons. Moreover, the Interlocutory Application filed in this Court fails to comply with r 36.57(2) of the Federal Court Rules. The Affidavit which has been filed in support of the Application fails to state "briefly but specifically, the facts on which the application relies" or "the grounds of appeal to which the application relates". As explained in oral submissions, however, but not in the Affidavit - the further evidence could potentially go to Grounds 4(h) and (k) of the Notice of Appeal. 66 The Application, in any event, is more in the nature of an application - not to adduce further evidence - but to re-open the hearing of the issues determined by the primary Judge. 67 Insofar as the Application seeks to adduce further evidence as to solvency, the Affidavit filed by Mr Shaw in support does set forth evidence in respect to: three properties and their value, albeit a valuation that is not supported by any independent assessment; and the value of monies held in a superannuation fund. Such evidence would not be of sufficient weight to establish solvency. 68 The Application to adduce further evidence directed to this discrete issue is nevertheless also rejected because: the available evidence is far from "cogent" - the evidence is no more than assertion on the part of Mr Shaw as to his ability "to pay the debts claimed…"; the question of solvency was not an issue raised for resolution before the primary Judge ([2014] FCA 616 at [100]) and no appellable error arises by reason of her Honour not resolving an issue which was not advanced; and no injustice is occasioned to Mr Shaw in rejecting the evidence because he remains free to bring any such further application as he sees fit seeking to set aside or annul the sequestration order made by the primary Judge: Bankruptcy Act s 153B. 69 The Interlocutory Application should be dismissed.