Case: The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310
Outcome: cited
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence ( Hughes v Hill [1937] SASR 285 at 287 ; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error ( Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts ( Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (" UTA ") at 478; and (4) mistaken apprehension of the law ( UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 (" Silver Fox ") at [22] and [25]. 28 The above-mentioned considerations do not, however, persuade me to give the applicants leave to re-open. There are weightier factors militating against the grant of leave. These factors are as follows. (1) The applicants deliberately chose not to quantify the Commonwealth's loss at the first hearing, perhaps because they believed that they could not do so (see their letter of 27 August 2004) or for some other reason. This factor, though not conclusive, is a significant one. (2) Prior to the first hearing, the applicants had plainly led the respondents to believe that the applicants were proceeding on the basis that quantum was irrelevant and, in any case, that the loss could not be quantified. (3) The applicants opened and closed their case on the basis that they had not quantified their loss and did not need to do so. (4) The applicants did not make any application for a split trial, whether by the preliminary determination of a separate question under O 29 r 2 of the Federal Court Rules or otherwise, although it was open to them to do so. (5) By their correspondence and their conduct before and at the first hearing, the applicants led the respondents to understand that they had presented the totality of their evidence at the first hearing. (6) Before the first hearing, the applicants knew that it would be said against them that they could not succeed without evidence quantifying their loss. (7) The respondents prepared, planned and conducted their case on the basis that the applicants would not present quantification evidence. This factor is also significant. In the belief that the applicants were not going to present quantification evidence, Bradshaw contended that the applicants could not succeed without such evidence. As counsel for Bradshaw observed, if the applicants had provided the respondents with some evidence of the quantum of their loss, the respondents might have taken a different view of their claim for payment under the bond. Had he not been led to believe that there would be no evidence of quantification, Bradshaw would presumably have conducted his case differently. (8) Whilst there were no pleadings, the issue in debate was clearly addressed in the correspondence between the parties prior to the first hearing. (9) In circumstances where the applicants had full knowledge of the considerations relevant to their conduct and proceeded on a particular basis, the public interest in the finality of litigation weighs strongly against permitting them to depart from that basis: compare Silver Fox at [25] and the cases there cited. (10) In the circumstances outlined, a costs order is inadequate compensation to the respondents and, in any event, does not satisfactorily meet the public interest in finality of litigation. I would therefore refuse the application to reopen the applicants' case.