Background
The core issue in this judgment was the scope to adduce further lay evidence in an interlocutory application. It was common ground that the Court should grant leave for the applicant to file additional evidence. Two versions of Order 4 defined the scope of that further evidence to be filed. One was supported by the applicant and the State (Version 1) and the other by GAG Crystalbrook, the Preston Law respondents and the Chongs (Version 2). The applicant and the State proposed further evidence be allowed where it related to topics identified in paragraph 3 of the interlocutory application filed on 14 April 2020. The other parties proposed that any further lay evidence be limited to specific matters contained in three reports.
Key Submissions
The applicant and the State submitted, among other things, that the scope of Version 2 was ambiguous whereas Version 1 had a clearly defined limit. It also allowed for the capture of lay witness evidence that had not previously been willing to be provided, explained in the Harriss affidavit. The GAG Crystalbrook and the Preston Law respondents submitted that the applicant had made forensic decisions regarding the evidence that they would present. The decision not to rely upon the three reports should mean leave to introduce further evidence be refused, other than evidence captured in the scope of Order 4 Version 2.
Decision
Collier J favoured Order 4 Version 1. She reasoned that both parties were prepared to accept further evidence being adduced and was not satisfied by the GAG Crystalbrook and the Preston Law respondents’ submissions. She rejected the argument that counsel for the applicant had made a deliberate forensic choice to not rely on the three reports. She accepted the State’s submission that Version 1 was unambiguous and set a clear limit on the scope of evidence. Her Honour also inferred from the Harriss affidavit that the best evidence was not before the Court which is needed to satisfy s 37M(1) of the Federal Court Act of Australia 1976 (Cth). The affidavit stated that lay witness evidence was of better quality when given on Country. These were her Honour’s reasons for favouring Order 4 Version 1.
Conclusion
Her Honour found for the applicants and the State for the reasons stated above. The fact that the parties were in agreeance as to further evidence being adduced was a central reason in the judgment. Her Honour also placed weight on the best evidence not being before the Court.