19. The relevant question raised by the application is whether, on the whole, it is in the interests of justice that leave be granted for Mrs Matthews to re-open her case.
20. The position in relation to re-opening a case after the close of final submissions or judgment has been delivered is clear. In Spotlight Pty Ltd v NCON Australia Ltd the Court of Appeal agreed with the opinion of Kenny J in Inspector-General in Bankruptcy v Bradshaw that there are four recognised classes of case in which a court may grant leave to re-open a party’s case:
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.
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, it does not.
21. This year Sifris J dealt with an application by a plaintiff to re-open its case in Nicholson v Hilldove Pty Ltd & Ors. In that case the application was made after the trial of the proceeding and reasons for judgment had been handed down. His Honour reviewed the authorities and said:
The authorities establish that the existence or discovery of fresh evidence alone is not sufficient to re-open the case. If this were not so decisions would be “of a provisional character only”. Rather, public policy requires a more “stringent rule”. Accordingly a party seeking to re-open a case on the grounds of fresh evidence is required to show “that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict”.
22. Each of these cases involved re-opening a case after final submissions and in two of the cases (Bradshaw and Nicholson) after the judgment. It is clear that a very powerful reason is required and, of course, one that satisfies the criteria set out by the Court of Appeal in Spotlight. However re-opening a case whilst the trial is still underway is a different kettle of fish altogether.
23. The High Court in Smith v New South Wales referred to the considerations relevant to determining whether to permit the re-opening of a case during the course of a trial:
If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for the judgement [sic] have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised.
24. Thus the primary consideration is whether the interests of justice require that the application be allowed. In this state the Court’s broad powers of case management under the Civil Procedure Act 2010 (Vic) need to be noted: to achieve the objective of ‘[facilitating] the just, efficient, timely and cost-effective resolution of the real issues in dispute’ the Court may make any order or give any direction with regard to the objects listed in s 9(1) including (a) the just determination of the civil proceeding and (c) the efficient conduct of the business of the court.
25. Section 49(1) of the CPA also gives the Court the power to ‘give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding’ before a hearing commences or during a hearing.'
In granting leave, His Honour considered that:
- The delay in searching for the screw was explicable.
- The failure to tender the screw earlier was the result of a misunderstanding or misjudgment of counsel.
- The evidence was relevant, and in so finding His Honour said, 'It merely requires the court to ask: could the evidence if accepted, affect the probability, even indirectly, of the existence of a fact in issue in the proceedings? There need only be a minimal logical connection between the evidence and a fact in issue. It is important not to confuse relevance with sufficiency or weight (at ).'
- Any prejudice in re-opening the case would be minimal, and it was particularly important that the plaintiff submitted that it was not intended to conduct an expert analysis of the screw and therefore avoid 'instigating another battle of expert evidence'.