Frigger v Trenfield (No 7) [2020] FCA 1740

Frigger v Trenfield (No 7) [2020] FCA 1740

The applicants did not establish a good reason to reopen the trial after judgment had been reserved. The impugned letters and evidence had been available during the trial, the later material did not reveal a relevant mistaken apprehension, the proposed objections under ss 138 and 102 of the Evidence Act 1995 (Cth) were unlikely to succeed or were not sufficiently strong to justify reopening, and reopening would cause prejudice, delay, inefficiency and possible effective retrial. The proposed new affidavit evidence could have been adduced at trial and was not shown to be sufficiently important. It was therefore not in the interests of justice to reopen the trial.

Jurisdiction
Australia
Judgment Date
27 November 2020
Procedural Posture
Interlocutory Application to Reopen Trial in Bankruptcy Related Proceeding / After Trial Ended and Judgment Was Reserved
Outcome
The applicants' amended interlocutory application, including the application to reopen, was dismissed; costs of the amended interlocutory application were ordered to be the first respondent's in any event.
Legal Topics
['reopening Trial After Judgment Reserved' 'objection to Evidence Already Admitted' 'improperly or Unlawfully Obtained Evidence' 'trustee in Bankruptcy Investigative Powers' 'fresh Evidence' 'costs of Interlocutory Application']
['practice and Procedure' 'bankruptcy' 'evidence' 'insolvency'] ['reopening Trial After Judgment Reserved' 'objection to Evidence Already Admitted' 'improperly or Unlawfully Obtained Evidence' 'trustee in Bankruptcy Investigative Powers' 'fresh Evidence' 'costs of Interlocutory Application']

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Procedural Posture

Interlocutory Application to Reopen Trial in Bankruptcy Related Proceeding / After Trial Ended and Judgment Was Reserved

Legal Issues

  1. 1 ['Whether the trial should be reopened after judgment was reserved to allow the applicants to object to affidavit and exhibit evidence already admitted.' 'Whether evidence obtained by the first respondent as trustee in bankruptcy was obtained improperly or unlawfully so as to warrant exclusion under s 138 of the Evidence Act 1995 (Cth).' 'Whether the first respondent abused powers under the Bankruptcy Act 1966 (Cth), including by using s 77A requests to obtain documents for litigation.' 'Whether the applicants should be permitted to reopen the trial to adduce new affidavit evidence after the trial had ended.' "Whether parts of Mr Newton's affidavit should be struck out."]

Ratio Decidendi

The applicants did not establish a good reason to reopen the trial after judgment had been reserved. The impugned letters and evidence had been available during the trial, the later material did not reveal a relevant mistaken apprehension, the proposed objections under ss 138 and 102 of the Evidence Act 1995 (Cth) were unlikely to succeed or were not sufficiently strong to justify reopening, and reopening would cause prejudice, delay, inefficiency and possible effective retrial. The proposed new affidavit evidence could have been adduced at trial and was not shown to be sufficiently important. It was therefore not in the interests of justice to reopen the trial.

Court Disposition

The applicants' amended interlocutory application, including the application to reopen, was dismissed; costs of the amended interlocutory application were ordered to be the first respondent's in any event.

Orders

  • ['The applicants have leave to amend their interlocutory application dated 1 October 2020 in terms of the amended interlocutory application dated 15 November 2020.' 'Service of the amended interlocutory application is dispensed with.' "The applicants' amended interlocutory application, which for the avoidance of...