Carey v Freehills

Case [2014] FCA 818

FEDERAL COURT OF AUSTRALIA

Carey v Freehills [2014] FCA 818

Citation: Carey v Freehills [2014] FCA 818
Appeal from: Carey v Freehills [2013] FCA 954
Parties: NORMAN PHILLIP CAREY and others named in the attached schedule v FREEHILLS
File number: VID 1350 of 2013
Judge: WHITE J
Date of judgment: 31 July 2014
Catchwords: PRACTICE AND PROCEDURE – re-opening hearing before judgment – new evidence – whether appellant should be permitted to re-open to admit new evidence against background of procedural defaults
Cases cited: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Smith v New South Wales Bar Association (1992) 176 CLR 256
Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232
Date of hearing: 31 July 2014
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 26
Counsel for the Appellants: Mr A Schlicht
Solicitor for the Appellants: Metaxas & Hager
Counsel for the Respondent: Mr D A Klempfner
Solicitor for the Respondent: Colin Biggers & Paisley Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1350 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

NORMAN PHILLIP CAREY and others named in the attached schedule
Appellants
AND:

FREEHILLS
Respondent

JUDGE:

WHITE J

DATE OF ORDER:

31 JULY 2014

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.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.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1350 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

NORMAN PHILLIP CAREY and others named in the attached schedule
Appellants
AND:

FREEHILLS
Respondent

JUDGE:

WHITE J

DATE:

31 JULY 2014

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. I am dealing with an oral application to re-open a hearing so as to permit the appellants to lead further evidence and to make further submissions.

  2. On 15 May 2014, the Court reserved its judgment on an application by the appellants filed on 7 May 2014 to set aside the dismissal of their appeal to the Full Court against the judgment of Kenny J in Carey v Freehills [2013] FCA 954; (2013) 303 ALR 445. The appeal had been summarily dismissed by North J on 28 April 2014. North J made that order having regard to defaults by the appellants in prosecuting their appeal. Those defaults included a failure to provide the security for the respondent’s costs which had been ordered by Marshall J on 1 April 2014.

  3. On Monday, 28 July 2014, the parties were informed that judgment would be delivered today, Thursday, 31 July 2014.  Just before midnight on 28 July, the appellants’ solicitors sent to the Court by facsimile a copy of an affidavit sworn by Mr Carey, the first appellant.  The affidavit shows that it was sworn…

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AGLC
Carey v Freehills [2014] FCA 818
Case
[2014] FCA 818
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Carey v Freehills was heard concerning an application by the appellants to reopen a hearing so that new evidence could be admitted. The application sought to permit an affidavit sworn by Mr Carey on 29 July 2014 to be read into the proceedings. The respondents, Freehills, opposed the application on the basis that the new evidence was not admissible due to procedural defaults and that the application should be refused on those grounds. The appellants argued that the new evidence was material and that the procedural defaults should not preclude its admission.

The central legal issues before the court were whether the appellants should be permitted to re-open the hearing and admit new evidence, and whether the procedural defaults should be a barrier to the admission of the new evidence. The court considered the principles of procedural fairness and the importance of adhering to court rules and procedures. The court also considered the nature and significance of the new evidence, and the impact of any procedural defaults on the fairness of the proceedings.

The court found that the appellants had not demonstrated a compelling reason to reopen the hearing and admit the new evidence. The court held that the procedural defaults were significant and that they undermined the fairness of the proceedings. The court also found that the new evidence, while potentially relevant, was not of such significance that it should override the procedural defaults. The court concluded that the application should be refused and that the new evidence should not be admitted. The court's decision was based on a careful consideration of the relevant principles and the facts of the case.

The final order of the court was that the application made by the appellants on 31 July 2014, that the hearing in the proceeding should be re-opened so as to permit Mr Carey’s affidavit of 29 July 2014 to be read, was refused. The court's order was made under Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. 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.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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