Carey v Freehills [2014] FCA 818

Carey v Freehills [2014] FCA 818

The interests of justice did not warrant re-opening the hearing. Although the proposed evidence was relevant in part to the application to reinstate the appeal and the appellants would be shut out if the dismissal stood, the application was late, Mr Carey's affidavit contained only bare and uncorroborated assertions about the availability of funds, there was no evidence explaining why the evidence had not been adduced earlier or when and how the funds became available, the appellants did not address their ability to provide additional security sought by Freehills, the appeal had been dismissed against a background of repeated procedural defaults, and re-opening would prejudice Freehills...

Jurisdiction
Australia
Judgment Date
31 July 2014
Procedural Posture
Oral Application to Re Open a Hearing Before Judgment to Admit Further Evidence and Make Further Submissions / Before Delivery of Reserved Judgment on the Appellants' Application to Set Aside the Summary Dismissal of Their Appeal
Outcome
Oral application refused.
Legal Topics
['re Opening Hearing Before Judgment' 'new or Additional Evidence' 'procedural Defaults' 'prejudice' 'finality of Litigation' "security for Respondent's Costs"]
['practice and Procedure' 'appeals' 'security for Costs'] ['re Opening Hearing Before Judgment' 'new or Additional Evidence' 'procedural Defaults' 'prejudice' 'finality of Litigation' "security for Respondent's Costs"]

Case Brief

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Procedural Posture

Oral Application to Re Open a Hearing Before Judgment to Admit Further Evidence and Make Further Submissions / Before Delivery of Reserved Judgment on the Appellants' Application to Set Aside the Summary Dismissal of Their Appeal

Legal Issues

  1. 1 ["Whether the appellants should be permitted to re-open the hearing before judgment so that Mr Carey's affidavit of 29 July 2014 could be read." 'Whether the interests of justice favoured re-opening in light of the lateness of the application, the content of the proposed evidence, procedural defaults, prejudice to the respondent, and finality of litigation.']

Ratio Decidendi

The interests of justice did not warrant re-opening the hearing. Although the proposed evidence was relevant in part to the application to reinstate the appeal and the appellants would be shut out if the dismissal stood, the application was late, Mr Carey's affidavit contained only bare and uncorroborated assertions about the availability of funds, there was no evidence explaining why the evidence had not been adduced earlier or when and how the funds became available, the appellants did not address their ability to provide additional security sought by Freehills, the appeal had been dismissed against a background of repeated procedural defaults, and re-opening would prejudice Freehills...

Court Disposition

Oral application refused.

Orders

  • ["The oral application made by the appellants on 31 July 2014, that the hearing in this proceeding should be re-opened so as to permit Mr Carey's affidavit of 29 July 2014 to be read, is refused."]