Late service of evidence: how late is too late?

More often than I would like, as junior counsel I am forced to seek the court’s leave to have affidavits admitted into evidence at a hearing. Whether it is a failure to comply with the court’s timetable or simply a matter of patching up an aspect of the case (having been briefed very late) it is always a precarious situation to have to deal with.

Following are some arguments which may assist the reader with enlivening the sympathies of the bench when faced with the same situation.

Somewhat ambiguously the NSW UCPRs say an affidavit must be served “not later than a reasonable time before the occasion for using it arises” (UCPR r 10.2(1)). However, being a discretionary question, aside from looking at the timing of the service in relation to the hearing date, you could also argue such things as: 

i.         That the opponent would not suffer any prejudice or unfairness if the leave were granted because the evidence is simply responding to matters it has raised or includes matters that are otherwise non-contentious;

ii.         That the opponent was in a position to adequately to deal with the ‘new’ evidence prior to the trial but chose not to;

iii.         it is in the interests of justice to allow the evidence in, based upon such matters as a plausible explanation for the delay, the conduct of the opponent in the litigation to date and history of the case (including hopefully a lack of past non-compliance on your own client’s part); and

iv.         The new evidence would permit fairness to be afforded to your client by allowing the court have all relevant evidence before it so as to enable it to comprehensively rule on the issues.

If the new evidence is indispensible to one’s case, the other alternative is to seek an adjournment to enable the opponent to reply to it. This will of course attract costs consequences, something that would have to be weighed against the importance of the evidence.

A couple of decisions that provide a guidepost as to what isn’t acceptable are as follows.

Bomanite Pty Ltd v Salex Corp Aust Pty Ltd (1991) 32 FCR 379 had had a lengthy pre-trial history, there having been no fewer than 16 directions hearings over 18 months. When the Court finally allowed the matter to be listed for trial it did so on the express basis that the affidavit evidence, a number of deficiencies in which had previously been pointed out to counsel, would stand in its then existing form at the trial. The applicant later sought leave to file further affidavit evidence about 4 weeks before the trial, which both the judge at first instance and the full court on appeal rejected. 

In State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2) (1992) 29 NSWLR 487 the Commission sought to rely on evidence served at the commencement of the trial and was also denied.

Whilst these decisions can be viewed (and probably distinguished) in light of their own facts, it is also important to remember that where the failure to file/serve evidence on time can be sheeted home to a lawyer,  courts will be reluctant to allow the mistake to be fixed via a grant of leave. Both of the appeal courts in the above cases made reference to the words of Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 (even though he was referring to a late amendment of pleadings):

 We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall upon their own heads rather than by allowing an amendment at a very late stage of the proceedings.”

Quite sobering really.

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