FEDERAL COURT OF AUSTRALIA

Tru Floor Service Pty Ltd v Jenkins (No 3) [2006] FCA 738

TRU FLOOR SERVICE PTY LTD, PAUL ANDREW FLETCHER, VICKIE ANNE FLETCHER, COMPLEX AIR CONDITIONING PTY LTD, A P DELANEY & CO PTY LTD, KIEWA VALLEY ENGINEERING PTY LTD, C & C PRZIBELLA PTY LTD, TORNEY & ALLEN PTY LTD and EXVON PTY LTD v DAVID JOHN JENKINS and VIVIENNE ELLEN JENKINS

VID 3021 OF 2001

SUNDBERG J

10 MARCH 2006

MELBOURNE

RULING

1                     On 8 March 2006, the eighth day of the trial of this proceeding, the plaintiffs sought leave to file and serve an affidavit of Cheryl Mann sworn on 7 March.

2                     My ruling on that application was in the following terms. Ms Mann gave evidence on 2 and 3 March. Her evidence was lengthy and she was cross-examined extensively. She lives in Alice Springs in the Northern Territory and is currently visiting her family at Leeton in New South Wales. The material exhibited to the affidavit consists of about 22 financial documents retrieved by Ms Mann from Chick Vic's computer system on 6 March. There was no explanation as to why these documents could not have been retrieved at a much earlier date so that they could have been put to Ms Mann and Mr Chamberlain while those witnesses were available for cross-examination. In the circumstances, I refused to receive the affidavit.

3                     Yesterday, the ninth day of the trial, the plaintiffs sought to re-open the matter – again applying for leave to file and serve Ms Mann’s affidavit. To that end, they also sought leave to file and serve other affidavits in an attempt to provide the explanation referred to earlier.

4                     I have read Ms Mann’s affidavit and the further affidavits.

5                     The defendants opposed the re-opening of the matter. Counsel indicated that three witnesses would have to be recalled for cross-examination if the documents were received. They were Ms Mann, Mr Chamberlain and Mr Lamb. Mr Lamb gave expert evidence early in the trial and he too was cross-examined at length. I have taken this potential dislocation of the proceedings into account in declining to allow the matter to be re-opened.

6                     I have, over frequent objections by the defendants, acceded to various requests by the plaintiffs to supplement the record and rely on last minute affidavits. I have extended considerable latitude to the plaintiffs in other respects. A week before the trial commenced I permitted them, over strenuous opposition by the defendants, to heavily amend their statement of claim and file a very lengthy reply some two years out of time. See Tru Floor Service Pty Ltd v Jenkins [2006] FCA 119.

7                     It is, in my view, unreasonable for the plaintiffs and unfair on the defendants on the eighth day of the trial to unsuccessfully seek to rely on Ms Mann’s affidavit and on the ninth day to seek to re-open the matter the subject of the adverse ruling the day before. It may be that the latitude I have extended to them led the plaintiffs to expect that I would endlessly accommodate them.

8                     In the circumstances described, my reserves of accommodation are, at least for the present, exhausted. The application to re-open the matter is refused.

Associate:

Dated: 14 June 2006