26 Influenced by the pervasive principle of finality in litigation, the limitation of an appeal from this Court to a question of law and the form of the remitter, in Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 at [11] - [17] I proposed that on a remitter for compensation to be assessed according to law (as distinct from a remitter for rehearing), such general principles or guidelines should be similar to those that apply when a party applies to reopen a case and adduce further evidence after judgment has been delivered. In my subsequent decision in the same proceedings I granted leave to the applicant to rely on additional evidence: Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 664. I did so after balancing the principle of finality of litigation against the potential for injustice in the particular circumstances of that case if the proposed evidence were not adduced. In support of that principle, I quoted at [23] D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [34] - [36] where Gleeson CJ, Gummow, Hayne and Heydon JJ held (omitting citations):
[34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
[35] The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called fresh evidence rule ) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe : [i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.
[36] The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit.
27 Walker's submissions cite Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379. There the Full Court of Federal Court (Pincus, Gummow and French JJ) held that the primary judge had not erred in the exercise of his discretion in refusing the applicants leave to adduce further affidavit evidence three to four weeks before the trial, notwithstanding that the consequence of the refusal was that the applicants would almost certainly fail at trial. That was in circumstances where there had been many directions hearings and the matter had been fixed for trial on the express basis that the applicants were alive to highlighted deficiencies in their affidavits but nonetheless wished to proceed to trial and after the primary judge had cautioned the applicants about the contents of their affidavits.
28 Even if the Mosca general guidelines are put to one side, I do not consider that the discretion to permit reliance on additional evidence should be exercised in Walker's favour at this late stage. My reasons are as follows.