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Fresh evidence – how fresh is fresh enough?

By Hayley Hitch, Solicitor and Stephen Mullette, Principal of Matthews Folbigg in our Insolvency, Restructuring and Debt Recovery Group.

It is the stuff of the classic cop show or court room thriller. The bad guy is about to get away with the crime, until there is an application to introduce “fresh evidence”.

But how fresh is fresh enough?

In the real world, if the application is found to be just an attempt to re-hear a matter without in fact bringing new evidence before the Court, the application will be dismissed and potentially a cost order may be made against the applicant.

In Baycorp Collections PDL (Australia) Pty Ltd v Reaper [2016] FCCA 2458, the bankrupt, Mr Reaper, sought a stay of orders made a year earlier, for the sale of the bankrupt’s property by his trustee in bankruptcy. He did so, (despite having previously failed “in separate appeals or applications made by Mr Reaper to Pagone J, Davies J, Tracey J, Middleton J and Mortimer J”) on the basis that he had obtained “fresh evidence” that his bankruptcy should be annulled. This would prove, according to the bankrupt; that the judgment debt, on which he had been bankrupted, was obtained irregularly.
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Misuse of Confidential Information – Evidence relied upon after the fact

In the recent decision of Finemore v CMIB Insurance Services Pty Limited [2016] FWC 8517, an employer successfully relied upon evidence of misuse of its confidential information discovered following the termination of employment, in order to defend itself from an unfair dismissal claim.

The Facts

The Applicant had been employed by the Respondent (a small business employer) for approximately six years, most recently in the role of Account Executive. The Applicant was employed under a written employment contract containing several post-employment obligations including an obligation to preserve the Respondent’s confidential information

On 28 April 2016, the Applicant notified the Respondent that she was resigning her employment, and provided one month’s notice of resignation.  The Respondent accepted the Applicant’s resignation and confirmed the Applicant’s final day of employment would be 31 May 2016.

However, on 3 May 2016, the Respondent discovered that the Applicant had emailed to her personal email address a detailed Excel spreadsheet (along with other confidential files) shortly after submitting her resignation. The Respondent’s directors directed the Applicant to attend a meeting, at which time the allegations were put to her. The Respondent considered the Applicant’s responses to the allegations to be unsatisfactory, and summarily terminated her employment on the ground of serious misconduct.
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