[2015] ACTSC 9

EVIDENCE - JURISDICTION, PRACTICE AND PROCEDURE - Application to adduce further evidence following close of proceedings - Documents not possessed of utility - Application dismissed

Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

1. Application has been made for the admission of further evidence, notwithstanding that the proceedings have concluded and all the evidence has been taken. Indeed, final submissions in written form have now been made, and the matter was only relisted for the purpose of oral submissions.

2. Regrettably, senior counsel for the defendant and counter-claimant has been indisposed and is unable to make any further oral submissions but, in his absence, the solicitor for the defendant and counter-claimant has pursued the application for leave to reopen and to file additional evidence. That evidence relates to bank statements that it is asserted were before the accounting experts in the proceedings but, doing the best I can in the short period available to me, I cannot see that those documents were before the experts, and they do not appear to have been admitted into evidence.

3. In any event, as I understand it, the only point of admitting these documents is to address the issue of whether there were loans made by Brenda Hungerford, the principal shareholder and director of the defendant, or not.

4. The basis on which courts determine whether to grant an application for leave to reopen is set out, helpfully, in Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 478 where Clarke JA said

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.

5. It does not seem to me that either of those two positions that his Honour identified is really the situation here. It appears that the issue to which the evidence was directed is not an issue in the proceedings. The evidence in the proceedings is clear that Ms Hungerford made advances to the defendant. Those advances were shown in the financial statements which were provided to both accounting experts.

6. The question of the basis on which those advances were made was in issue, to the extent that so far as they were regarded as loans, there was no external evidence to which one could point as to the terms under which those loans were made. This resulted in the expert for the plaintiff and third party finding that they were shareholder loans that were interestfree. The defendant and counter-claimant submitted otherwise and the expert it retained expressed an opinion to that effect. That is an issue that I will have to decide.

7. That is not, however, an issue which I am to be assisted in deciding by having regard to the documents that are sought now to be adduced. The documents simply address the issue of whether the money was a loan or not. While theoretically there may be an issue in such circumstances as to whether the money was advanced as capital or as loans, it seems to be accepted by all parties that the moneys were loans and that is how they were shown in the financial statements of the defendant.

8. In the circumstances, there is no utility, as was acknowledged by the solicitor for the defendant and counter-claimant, in the reception of the documents, and accordingly I dismiss the application.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Judgment of his Honour Acting Chief Justice Refshauge