Case: MID Sydney Pty Ltd v Australian Tourism Co Ltd (1998) 90 FCR 236
Outcome: cited
In my view: &#8226; This is not a case where the first respondent has made a deliberate tactical decision not to adduce, during the proceedings, evidence which was already available. However the occurrence of the events the subject of the 9 April affidavit flow from a deliberate tactical decision of the first respondent during the trial to give an undertaking, the purpose of which as the respondents admit was to bring themselves within the principles articulated in MID Sydney Pty Ltd v Australian Tourism Co Ltd (1998) 90 FCR 236. I consider that, in principle, the distinction between: o making a deliberate tactical decision during the proceedings not to adduce evidence then available; and o making a deliberate tactical decision during the proceedings to give an undertaking from which evidence follows after the trial; is minimal in the sense that both decisions relate to the manner in which the first respondent has decided to conduct its case and the evidence to be put before the Court. In summary, it is as a result of decisions taken by the respondents, during the proceedings as to the manner in which their case was to be conducted, that the respondents now seek to put additional evidence before the Court. &#8226; I consider that allowing the respondents to supplement their case after the conclusion of the applicant's case at trial would offend the principle of finality of litigation. It is not in the interests of justice that a litigant should be entitled to adduce additional evidence after the conclusion of proceedings simply to bolster its own position, which I consider is the intention of the respondents here. &#8226; As the respondents concede, the evidence in the 9 April affidavit simply provides additional evidence that there has been compliance with the undertaking given by the first respondent in Court. I do not consider this evidence so material that the interests of justice require its admission. Further, while the evidence in the 9 April affidavit is of relevance to the primary proceedings, I consider that it would be of particular relevance in the event that the applicant subsequently claimed that the first respondent had failed to comply with that undertaking. I make this observation because I consider that the evidence goes primarily to compliance with the undertaking. &#8226; I do not consider that the additional evidence in the 9 April affidavit is evidence which, if believed, would most probably affect the result of the primary proceedings. The undertaking given by the first respondent in Court on 11 March 2008, and supported by an affidavit of Mr Cranitch, is enforceable on its own terms. &#8226; While, as I have already indicated, I consider the applicant has demonstrated little potential prejudice should I exercise my discretion to permit the respondents to adduce this additional evidence, that is not in itself a reason to exercise my discretion in the respondents' favour in light of the other factors I have taken into account. 23 Accordingly the notice of motion should be dismissed. I shall hear submissions as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 25 November 2008 Counsel for the Applicant: Mr A Franklin SC Solicitor for the Applicant: Bennett &amp; Philp Counsel for the Respondent: Mr A Crowe SC Solicitor for the Respondent: Holding Redlich Date of Hearing: 27 May 2008 Date of Judgment: 25 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1761.html