Paul Herbert Kennedy v Mark Alexander-Erber

In the case of Paul Herbert Kennedy v Mark Alexander-Erber, the plaintiff sought leave to reopen his case in chief to introduce new evidence by way of affidavit from a witness, Melanie Jayne Holt. The case was heard in the Supreme Court of New South Wales. The plaintiff's primary contention was that he needed to introduce new evidence to address a critical aspect of the defendant's expert opinion that had not been adequately countered during the original proceedings.

The legal issues before the court involved whether the plaintiff could reopen his case in light of the "exceptional circumstances" outlined in the Uniform Civil Procedure Rules 2005 (NSW) rule 31.28(4). Specifically, the court needed to determine if the plaintiff's circumstances warranted an exception to the general rule that once a case is closed, it cannot be reopened without leave of the court.

The court found that the plaintiff had demonstrated exceptional circumstances that justified reopening the case. The plaintiff had not been made aware of the critical content of Ms Holt's expert opinion until late in the proceedings, which prevented him from adequately responding to it. The court concluded that the plaintiff's inability to respond in the original proceedings due to this oversight was a compelling reason to allow the reopening of the case. Consequently, the court granted leave for the plaintiff to re-open his case and to introduce the affidavit of Melanie Jayne Holt. Additionally, the court set timelines for the defendant to respond to the new evidence and scheduled the matter for further hearing.