Litigants have conduct of their own case and must be responsible for the steps that they do or do not take. This includes the timely filing and/or service of evidence. Absent evidential material or agreed factual material demonstrating that there are exceptional circumstances behind late filing or service of evidence, leave to adduce it may well be refused.

That is the recent ruling of Justice McMillan in Kosmos Capital Pty Ltd v Turiya Ventures Ltd, where, following the completion by Defendant’s counsel of his submissions, the Plaintiff made an application to adduce further evidence in support of its case.

Paragraph 4 of the Financial Services Division Guide, which sets out the applicable principles concerning the exchange of evidence in lengthy applications, provides for a timetable of the exchange of evidence that “may be abridged or extended by agreement between the parties or abridged or extended by the Court, save that no evidence may be filed or served less than 5 clear business days before the hearing date without the leave of the Court. Such leave will only be granted in exceptional circumstances.” If a party wishes to file evidence less than 5 clear business days before the hearing, it is open to the Court to re-list and, if appropriate, make appropriate costs orders (including wasted costs orders).

On the facts there was no acceptable evidence, or even identifiable evidence, that exceptional circumstances had arisen. Accordingly leave to adduce would not be granted.

It is worth noting that the Plaintiff had also advanced an alternative argument to the effect that if the Court was minded not to grant leave, it would be appropriate instead to grant an adjournment (subject to a costs regime) in order to enable the Plaintiff to seek to satisfy the Court as to the existence of exceptional circumstances. Given the complexity of the case and possible permutations of taking such a course, the Court found that it would not be in the interests of justice to grant such an adjournment. The Judge noted, in this respect, that it would have been possible for the Plaintiff simply to abandon the application and “start again with its tackle in order”. That the Plaintiff had chosen not to do so was a matter for the Plaintiff.