Shaw v Harris (No 1)

Serial No A12/1992
List “A”

CITATION: Shaw v Harris (No 1) [1992] TASSC 69; A12/1992

PARTIES:  SHAW
  v
  HARRIS

COURT:  SUPREME COURT OF TASMANIA
FILE NO/S:  180/1989
DELIVERED ON:  30 March 1992
JUDGMENT OF:  Wright J
CATCHWORDS:

Evidence – Fresh evidence – Application to re–open case after conclusion of evidence and addresses but before judgment – Principles to be applied.
Confidential documents obtained by opposing party – Admissibility in evidence – Discretion to admit – Conduct of parties.
Confidentiality and legal professional privilege compared – Waiver.
Practice and procedure – Affidavits – Contents of – Scandalous matter – RSC O 41, r13.

Judgment Number: A12/1992
Number of paragraphs: 26

Serial No 12/1992

List "A"

File No 180/1989

SHAW v HARRIS (No 1)

REASONS FOR JUDGMENT WRIGHT J

30 March 1992

This case was reserved for judgment after a trial in Launceston in December 1991. On 30 January 1992, the defendants filed an undated application seeking the following orders:

"1. That the trial of the matter be re–opened.
2.That leave be granted to call the first and second named plaintiffs for further cross–examination.
3.That leave be granted for the defendants to call additional witnesses in support of this fresh material that has become available.
4.That leave be granted for the defendants to call a witness that [sic] was not available during the hearing of the matter."

On 17 March 1992 the plaintiffs filed a cross–application seeking orders:

"1.That the defendants be restrained from using or relying on in any manner whatsoever in this action on [sic] the contents of Exhibit 'A' to the first named defendant's affidavit dated 30 January 1992 or any information derived from the same.
2.That the defendants deliver up any copies or extracts from Exhibit 'A' in their possession, custody or poer [sic] to the plaintiffs by Friday 27 March, 1992.

3. That Exhibit 'A' be released to the plaintiffs."

Due to the defendants changing their solicitors after 30 January 1992 and the plaintiffs' solicitors seeing a necessity to brief independent counsel in view of certain accusations contained in a supporting affidavit sworn and filed by the male defendant, it was not practicable to deal with either application until 23 March 1992.

That there is an inherent discretionary power vested in the court to allow a case to be re–opened for the purpose of taking further evidence is beyond dispute. (Schuster v. Sawtschenko (No 2), Serial No 10/1970, Chambers J; Betts v Whittingslowe (No 1) [1944] SASR 163). Such a discretion should be exercised sparingly however and the introduction of additional evidence should only be permitted:

(a) when it is so material that the interests of justice require it;
(b) when if believed it would most probably effect the result of the trial; and
(c)when it could not have been discovered by reasonable diligence prior to the conclusion of the trial.

(See Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88, per Wolff CJ at p89 and Murray v Figge (1974) 4 ALR 612).

CaseChat Overview and Summary

The case of Shaw v Harris (No 1) was heard in the Supreme Court of Tasmania. The central dispute involved an application by the defendants to reopen the case after the conclusion of evidence and addresses but before judgment, to introduce fresh evidence and recall witnesses. The plaintiffs, in response, sought to restrain the defendants from using or relying on confidential documents that had inadvertently come into the defendants' possession.

The legal issues that the court had to decide were whether the court had the inherent power to reopen a case to introduce fresh evidence, and if so, under what conditions such discretion should be exercised. Additionally, the court had to determine the admissibility of confidential documents that had been inadvertently disclosed and whether these documents could be used as evidence in the proceedings.

The court's reasoning was that while the court has an inherent power to reopen a case for the introduction of fresh evidence, this discretion should be exercised sparingly. The court must consider whether the new evidence is material enough to affect the outcome of the trial, whether it could not have been discovered earlier through reasonable diligence, and whether it would likely affect the result if believed. Regarding the confidential documents, the court noted that while it is generally inappropriate for opposing parties to use such documents as evidence, there is no absolute rule preventing their use once they have been disclosed. The court concluded that the circumstances under which the documents were acquired did not involve any illegal or deceitful conduct but did not absolve the defendants from responsibility. The court found that the interests of justice and the confidentiality of the plaintiffs' communications with their legal advisers should prevail, and thus, the defendants' application to use the confidential documents as evidence was refused.

The final orders made by the court were to deny the defendants' application to reopen the case and introduce fresh evidence, and to grant the plaintiffs' application to restrain the use of the confidential documents and to return them to the plaintiffs' solicitors. The court also decided to deliver its judgment on the substantive issues in the litigation without further delay.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established