In the Supreme Court decision of Liu v Wang [2024] NSWSC 697, Justice Peden examined the circumstances in which a case should be reopened and a party should be allowed to rely on further evidence.
Following the conclusion of the final hearing in, the Supreme Court allowed Liu to delay the delivery of judgment so that she could bring an application to amend her Statement of Claim and re-open her case to rely on further evidence. Following the production of further evidence on which Liu wished to rely, Justice Peden was required to determine whether the case should be reopened to allow reliance on such evidence.
Although her Honour ultimately dismissed the application, the judgment provides clear and principled insight into the circumstances in which a court will allow a plaintiff to reopen their case.
Facts
Liu commenced proceedings against Mr Wang, claiming an equitable interest in a Zetland property, said to arise because she provided the majority of funds required to acquire the property. Mr Wang “failed to participate at all in the proceedings” ([6]), and no appearance was made on his behalf at the final hearing. In such circumstances, her Honour did not believe that an adjournment was necessary, considering the proceedings should be finally determined in his absence ([6])..
Upon completion of hearing and prior to the delivery of judgment, Liu, through her counsel, made an oral application for judgment not to be given but instead for the Court to allow her to bring an application to amend her pleadings and re-open her case to adduce further evidence ([7]). Her Honour was minded to allow a further seven days for Liu to provide the proposed further material to chambers, noting that Mr Wang was not prejudiced by the application ([8]).
On 23 May 2024, Liu provided a further affidavit from herself on which she sought to rely. She did not make any application to amend her pleading ([9]). Justice Peden was then required to make a determination on whether Liu should be permitted to re-open her case to rely on such evidence.
When will a case be re-opened?
Her Honour provided a succinct analysis of the approach when determining an application to re-open a case, drawing on relevant principles from case law.
The starting point for consideration is the broad power afforded to the Court to make directions for the conduct of proceedings, by way of rr 2.1 and 29.5 of the Uniform Civil Procedure Rules 2005 (NSW). However, such powers must only be exercised so as to give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) – that is, such orders must facilitate the just, quick and cheap resolution of the real issues in the proceedings ([12]).
Her Honour quoted Smith v NSW Bar Association (1992) 176 CLR 256, where it was said that an application to re-open a case, on the basis that “new or additional evidence” is available, may require inquiry as to:
- whether the evidence was deliberately omitted at hearing. The application will normally be rejected if this is so; and
- whether the hearing only is complete, or whether reasons for judgment have already been delivered. If the former, then consideration should be given to any embarrassment or prejudice placed on the other side. If the latter, then the appeal rules, as they apply to fresh evidence, should be used as a guide in determining whether the Court should exercise its discretion to re-open a case.
Kenny J in Inspector General in Bankruptcy v Bradshaw [2006] FCA 22, summarised the categories of case where the Court may grant leave to re-open a case, such categories being cases where there is:
- fresh evidence;
- an inadvertent error;
- a mistaken apprehension of the facts; and
- a mistaken apprehension of the law.
However, the court should always be guided by “whether the interest of justice are better served by allowing or rejecting the application” (Urban Transport Authority v Nweiser (1992) 28 NSWLR 471).
In ASIC v Rich [2006] NSWSC 826 a number of potentially relevant factors were listed to guide the court’s consideration; but it was ultimately noted that the discretion should be exercised having regard to all circumstances of the case, and with the overriding purpose of the Civil Procedure Act in mind.
Peden J’s determination
Liu sought to reopen the case to rely on further evidence of alleged conversations between Mr Wang and herself in early 2024.
However, Peden J rejected Liu’s application to re-open on the basis that:
- the proceedings had been in progress for more than six months. Liu had been consistently represented during that time and ought to have known the importance of the conversations she chose to omit. Her Honour agreed with Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 that the Court should not provide a back door allowing litigants to reargue their unsuccessful cases;
- the reasons for not providing the amended evidence earlier were not compelling. Her Honour did not accept that Liu’s lawyers had made an “inadvertent error” in omitting the evidence, instead characterising the omission as a “conscious decision… not to bring forward that evidence earlier”;
in any event, the further evidence which Liu did seek to rely on was not significantly probative.
Conclusion
Justice Peden’s ruling emphasised that reopening a case is not a mechanism for litigants to revisit their unsuccessful arguments. Liu’s application was denied due to procedural missteps, lack of compelling reasons, and the potential for prejudice against Wang. The decision reinforces the standards for admitting new evidence post-hearing and highlights the court’s commitment to efficient case management.