Procedural flexibity has its limits when evidence filed late
In Television Food Network, GP v Food Channel Network Pty Ltd [2008] FCA 378 (18 March 2008) counsel for the respondent, Food Channel Network Pty Ltd (FCN) sought leave of the Court to file two affidavits, one of which was only provided to counsel for the applicant, Television Food Network, GP (TFN) 10 minutes prior to Court resuming one morning during the trial.
TFN objected to the admissibility of the affidavits in their entirety and made some of the following submissions:
- no explanation as to the lateness of the evidence had been provided;
- the proposed evidence sought to advance a new case for the respondent and contradicts earlier evidence; and
- admission of such evidence would seriously prejudice the applicant.
The gist of the submissions made by FCN was that the affidavits did not contain new evidence but were merely a fuller explanation of previous material, and (creatively) that the need for the new evidence was as a result of the misrepresentation of their position by written submissions made by counsel for TFN.
The Court found both affidavits to be inadmissible. Justice Collier accepted that the TFN would suffer unfair prejudice if the evidence was allowed not only in view of its lateness but also because it contained “unsubstantiated argument” and “irrelevant material”. Regarding FCN’s submissions of misrepresentation, Justice Collier found that “the most obvious method of rebuttal is in the form of closing submissions”.
The Court noted the need for procedural flexibility but found that to require a party to deal with new evidence at the time of the trial -- evidence that could have been produced at any time leading up to the trial -- and without any opportunity for testing went too far.
