Reopening Application before Judgment – Lehrmann

The Lehrmann litigation provided a raft of examination of procedural and substantive legal principles (see below).  One concerned the principles applicable to a party to litigation applying to reopen the reception of evidence after the closing of evidence and reservation of the decision for judgment.  Below the reader will find the submissions of counsel for Network 10, Mr MJ Collins KC and Mr T Senior of counsel, upon such application.  As will be remembered by any reader who has followed the Lehrmann litigation, such application to reopen was granted.  The submissions afford a ready compendium of the applicable legal principles, coupled with their application to the circumstances submitted as founding the basis for reopening. Furthermore, such submissions provide a ready template for the manner in which counsel ought frame a written submission in an interlocutory application of whatever kind for the apt informing and persuasion of the court. There follows, further below, the pithy recitation from the final judgment of Justice Lee concerning the reasons for him acceding to such reopening application.

The submissions for Network 10 were as follows:   https://www.fedcourt.gov.au/__data/assets/pdf_file/0008/116864/Network-Tens-Outline-of-Submissions-on-Application-to-Reopen.pdf

The reasoning of Lee J on the issue in Lehrmann v Network 10 Pty Ltd [2024] FCA 368 (15 April 2024) – expressed, necessarily, by reference to the lastmentioned submissions, were as follows:

[164]  The conclusions expressed in the preceding section had been drafted prior to Easter Sunday when, less than four days prior to the notified date of delivery of this judgment, my Associate was contacted by the solicitors for Network Ten concerning an application to reopen, which I then listed and resolved as soon as practicable, after hours, the next business day.

[165]  Although the application was an unusual one and there is a need for caution in allowing a re-opening of the evidence after reservation except on well-founded grounds, I gave leave because: doing so was consistent with the authorities in relation to fresh evidence; the material was said to have some relevance to matters that went beyond the question of Mr Lehrmann’s credit; and, moreover, its receipt would assist in ensuring this controversy was quelled, and be seen to have been quelled, on the basis of all admissible evidence the parties wished to adduce. Further, doing so would not cause any real delay (and hence be inimical to resolving justly this dispute quickly and efficiently).