Australia, Sept. 1 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 1:

1. HER HONOUR: The defendant seeks an order that the plaintiff not be permitted to rely on five expert reports and a lay affidavit, either in whole or part, which were served 'in reply'. The defendant contends that this material is, in truth, further evidence in chief.

2. Alternatively, the defendant seeks the opportunity to reply to this material, together with an order that the plaintiff pay the costs thrown away as a consequence of not serving this material in chief. Further, the defendant seeks an order that these costs be awarded in a lump sum amount, either as agreed or otherwise fixed by the Court on being provided with evidence from the parties as to the amount of those costs and hearing further argument as to quantum.

3. The plaintiff maintains that the material is in reply but seeks leave to rely on the material if leave is required.

4. To determine these applications at the level of granular detail advanced by the parties would require me to closely read 12 expert reports spanning some 1,200 pages, together with portions of two detailed lay affidavits. The purpose which would be served by this is not entirely clear, where the plaintiff does not oppose the defendant putting on further evidence. This was said not to be because its evidence was not in reply, but as a matter of fairness and given that there is no trial date. As such, I have relied on the parties' summaries of the expert reports to determine the motions. I consider that to do otherwise would not be an efficient use of available judicial resources: s 57(1)(c), Civil Procedure Act 2005 (NSW).

5. Before turning to the competing motions, it may assist to consider what is evidence 'in reply'.

Evidence 'in reply'

6. It is not an infrequent occurrence on interlocutory applications or, indeed, at trial, for parties to debate whether evidence sought to be relied upon may be described as 'in reply' or, in truth, new evidence in chief for which leave to adduce must be sought.

7. Such debates are not new. In Shaw v Beck (1853) 8 Ex 393, Pollock CB observed at 398:

Where there are several issues, some of which are upon the plaintiff and some upon the defendant, the plaintiff may begin by proving those only which are upon him, leaving it to the defendant to give evidence in support of those issues upon which he intends to rely, and the plaintiff may then rebut the facts which the defendant has adduced in support of his defence. ... [for example] in the action of ejectment, in which the question depends upon the title of the disputed property the plaintiff may prove a prima facie case, the defendant may then set up an entirely new case, the plaintiff may then in reply set up another case, and so on.

8. Put another way, the plaintiff is not "bound to waste time by answering by anticipation that which might never be set up": Wright v Willcox (1850) 9 CB 650 at 657 per Maule J.

9. The procedural requirements for pleadings and case management have developed in the years since. In Australian Securities and Investments Commission v Adler (2001) 40 ACSR 214; [2001] NSWSC 1168, Santow J rejected a valuation sought to be relied upon by ASIC in reply, as ASIC was "impermissibly splitting its case". While the report was "framed by way of rebuttal", it dealt with "a critical aspect of the plaintiff's case" that bore directly on liability: at [18]. Further, "Its subject matter in substance constituted an important part of the plaintiff's case in chief ... [T]his affidavit ... goes to that, though it be framed in form as a rebuttal": at [21].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1985f27d588ff4a66d038150)

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