[2024] SADC 108

Applicant : MR ALEXANDER HYDE Counsel: MR S OWER KC WITH MR D BLYTH AND MS P EWENS - Solicitor: WOODBURN & CO First Respondent: ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA Counsel: MR T GOLDING KC - Solicitor: CROWN SOLICITOR (SA) Second Respondent: JING LI Counsel: MS H LUU - Solicitor: ILES SELLEY LAWYERS Hearing Date/s: 04/09/2024 File No/s: CIV-22-013997 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Interlocutory Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ALEXANDER HYDE v ELECTRAL COMMISSIONER OF SOUTH AUSTRALIA AND JING LI (NO 2) [2024] SADC 108 Judgment of his Honour Judge Burnett 13 September 2024 EVIDENCE - ADDUCING EVIDENCE - COURSE OF EVIDENCE - RE- OPENING CASE LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - ELECTIONS - DISPUTED ELECTIONS AND OUSTER - PROCEDURE By a petition lodged on 16 December 2022, the petitioner, Mr Alexander Hyde, has challenged, pursuant to Part 13 of the Local Government (Elections) Act 1999 (SA)(the Elections Act), the validity of an election in which the second respondent, Mr Jing Li, was elected as a councillor for the Central Ward of the Corporation of the City of Adelaide. Following the completion of the trial and with judgment reserved, but before judgment has been delivered, the petitioner has brought an application that he be granted leave to re-open his case and on the re-opening tender some 1954 pages of documents. The application arose from some documents produced through a freedom of information request by a third party. This led to an application for further discovery and an order was made on 17 April 2024 that the second respondent provide further discovery. The petitioner was subsequently granted leave to issue seven subpoenas. The petitioner seeks to tender these documents on the re-opening together with a small number of further documents which it was submitted were relevant to the issues raised by the other documents that were produced. Held: 1. Under s 71 of the Elections Act and Uniform Civil Rules 2020, r 172.1, the Court has the power to re-open the proceedings. The power is discretionary, but exceptional, and is to be exercised according to the public interest in maintaining the finality of litigation: Smith v New South Wales -- 1 of 28 -- Bar Association (1992) 176 CLR 256; Mackellar Mining Equipment Pty Ltd v Thornton & Ors (Mackellar)(2019) 367 ALR 171 applied. 2. The overriding principle is that the Court must consider whether the justice of the case requires the grant of leave to re-open: Mackellar Mining Equipment Pty Ltd v Thornton & Ors (Mackellar) [2019] QCA 77; Hines Exports Pty Ltd v Mediterranean Shipping Company SA (2001) 80 SASR 268 applied. 3. One of the accepted categories where a Court may grant leave to re-open is where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available: Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 applied. 4. A relevant discretionary consideration is prejudice to the other party. In circumstances where judgment has been reserved and not delivered and new evidence was not available at trial, prejudice will be the primary consideration: Smith v New South Wales Bar Association (1992) 176 CLR 256 applied. 5. The principles in Murray v Figge (1974) 4 ALR 612 and Reid v Brett [2005] VSC 18 which require inter alia a finding that the further evidence, if accepted, would most probably affect the result of the case are not to be inflexibly or mechanically applied: Re Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (Ferguson)(1986) 67 ALR 491 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 applied. It was sufficient in the circumstances of this case if the petitioner established that the document may affect the outcome of the proceedings. 6. In the exercise of discretion, the petitioner is granted leave to re-open and tender some of the documents that have been produced. A condition of the re-opening is that the respondents are also granted leave to re-open and adduce evidence in response to the further documents that are to be tendered by the petitioner. Local Government (Elections) Act 1999 (SA) s 57, s 58, s 61, s 64, s 71 and s 72; Freedom of Information Act 1991 (SA), referred to. Briggs on behalf of the Boonwurrung People v State of Victoria (2019) 367 ALR 171; Mackellar Mining Equipment Pty Ltd v Thornton & Ors [2019] QCA 77; Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; Smith v New South Wales Bar Association (1992) 176 CLR 256; Davies v Davies (No 1) [2019] QSC 293; FYD Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097; Bendigo and Adelaide Bank v Clout (No 2) [2016] FCA 561; Westgem Investments Pty Ltd v Commonwealth Bank of Australia (No 5) [2019] WASC 310; Hines Exports Pty Ltd v Mediterranean Shipping Company SA (2001) 80 SASR 268; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; Murray v Figge (1974) 4 ALR 612; Reid v Brett [2005] VSC 18; Re Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Yevad Products Pty Ltd v Brookfield [2005] FCAFC 177; Players Pty Ltd (In Liquidation) (Receivers Appointed) v Clone Pty Ltd [2015] SASC 133; Inspector-General in Bankruptcy v Bradshaw 2006] FCA 22, considered. -- 2 of 28 -- ALEXANDER HYDE v ELECTRAL COMMISSIONER OF SOUTH AUSTRALIA AND JING LI (NO 2) [2024] SADC 108 Introduction 1 Following the completion of the trial and with judgment reserved, but before judgment has been delivered, the petitioner brought an application that he be granted leave to reopen his case and on the re-opening tender further documents contained in a further tender book comprising over 1900 pages of documents. The basis of the application was that the second respondent had failed to make proper discovery. On 17 April 2024, I found that the petitioner had failed to make discovery of communications that he had with the electoral commissioner in relation to the enrolment of voters and ordered that the second respondent discover those documents. The second respondent made further discovery of those and some other documents. After obtaining copies of the documents, the petitioner issued six subpoenas to persons he described as associates of the second respondent and one subpoena to the City of Adelaide. The first respondent made some limited further discovery. The petitioner seeks to re-open his case and tender further documents discovered by the respondents, the documents returned on the subpoena and some miscellaneous documents. The respondents both oppose the application to re-open and the tender of the further documents. The petition 2 In October and November 2022, the City of Adelaide conducted an election under the Local Government (Elections) Act 1999 (SA) (the Elections Act). The election included an election for councillors for the Central Ward. The election was conducted by way of postal vote. Voting concluded on 10 November 2022. The second respondent was amongst four persons who were elected as councillors for the Central Ward. The petitioner was one of the unsuccessful candidates. 3 By an original petition lodged on 16 December 2022 and revised on 26 June 2023 (the Petition), the petitioner has sought relief that included a declaration that the 2022 election of councillors for the Central Ward of the City of Adelaide was void, a declaration that the elected persons, including the second respondent, were not duly elected and an order that a new election be convened by the Electoral Commissioner of South Australia for the Central Ward. 4 The petitioner relies upon the separate acts set out in paragraph 5 of the petition as a basis for obtaining the relief sought.1 These acts are: (1) On 27 May 2022, at a meeting of the international student community, the second respondent offered a bribe to persons with a view to influencing the vote of a person at an election or interfering with the 1 There was no evidence in respect of the allegation contained in paragraph 5.a.iii and the petitioner did not address that allegation in his closing submissions. -- 3 of 28 -- [2024] SADC 108 2 due course of an election, contrary to ss 57(1)(b) and 57(1)(c) of the Elections Act (paragraph 5.a and 5.b of the Petition); (2) On occasion or occasions between 14 October 2022 and 10 November 2022, persons acted as an assistant to a person voting in the election contrary to s 61(1) of the Elections Act by: (1) taking the voting packs from letterboxes from identified apartment blocks in the Central Ward including on 27 October 2022 by two persons at Vision on Morphett and by Mr Keith Jin and Mr Bai also on 27 October 2022; (2) sending a message via WeChat to occupants of Vision on Morphett Street to work together to support the second respondent and that an unidentified person was coming to the building on 18 October 2022 to pick up the ballot papers (paragraphs 5.c.i.-5.c.iv of the Petition). Other than admitting that Keith Jin was a supporter of his campaign, the second respondent denied those allegations; (3) Persons acting on behalf of the second respondent took possession or attempted to take possession of unopened voting packs contrary to s 61(4) of the Elections Act by: (a) directing supporters by a WeChat message on 25 May 2022 when completing enrolment application forms to record as their postal address, to which voter packs would be sent, an address in the control of the second respondent. The second respondent in his further amended response admitted that he sent the WeChat message on 25 May 2022 but says that he was responding to an invitation by a third party to nominate a postal address for the delivery of ballot papers on behalf of the intending voters known to the third party if those voters wished to nominate a postal address. He further alleged that no voter was enrolled at the address nominated by the second respondent in the WeChat messages other than the occupants of those premises; (b) Mr Trinity Zhang, acting on behalf and in concert with the second respondent, collecting unfilled voter packs from apartment buildings. The second respondent denied that Mr Zhang acted on his behalf in collecting unfilled voter packs; (c) Ms Mirandi Li in November 2022 approaching a landlord requesting they provide their unfilled voter packs to her on behalf of the second respondent. (paragraph 5.c.v of the Petition);2 (4) On occasion or occasions between 14 October 2022 and 10 November 2022, persons, acting on behalf of the second respondent, 2 There was no evidence in relation to the allegations contained in paragraph 5.c.v.3 of the petition. -- 4 of 28 -- [2024] SADC 108 3 had in their possession or attempted to gain possession, postal votes for the election contrary to s 61(4) of the Elections Act (relying on the matters pleaded in paragraph 5.c of the Petition (paragraph 5.d of the Petition); (5) Between 14 October 2022 and 10 November 2022 at least 73 identified persons made a statement in a declaration that was false and misleading contrary to s 64(1) of the Elections Act. The particulars of that allegation were that the signature on the declaration was different from the signature on the application for enrolment and therefore that person forged the signature on the envelope of the declaration or alternatively forged their signature on the application for enrolment to vote and falsely declared that they were the person named on the application to vote (paragraph 5.e of the Petition). The second respondent does not admit those allegations; and (6) A further allegation between 14 October 2022 and 10 November 2022 at least the 73 identified persons; (1) marked their vote on ballot paper not being the person to which the ballot papers had been lawfully sent in contravention of s 64(2) of the Elections Act; and (2) dishonestly exercised a vote at the election to which they are not entitled contrary to s 58(1) of the Elections Act (paragraphs 5.f and 5.g of the Petition). The second respondent does not admit those allegations. 5 Alternatively, the petitioner pleaded that the conduct in paragraph 5 of the Petition (which is set out in paragraphs (1)-(6) above) when taken as a whole, or separately, constituted a coordinated scheme to illegally affect the outcome of the election for the benefit of the second respondent such that the election was not a free and fair election contrary to the common law of elections (paragraph 7 of the Petition). 6 Paragraph 6 of the Petition comprised a plea as to how the alleged illegal practices affected the result of the election. Paragraph 6 does not raise a cause of action or form part of the allegations that there had been illegal practices or breaches of the Elections Act or the common law of elections. 7 In paragraph 6.c.i.vii, it is alleged that the second respondent and his agents (including Mr Keith Jin) distributed election enrolment forms to international students and caused them to be enrolled. In response to this allegation, the second respondent denied that he or his agents caused anyone to be enrolled who did not wish or was not entitled to be enrolled. The second respondent further pleaded that an enquiry into the entitlement of a person to be enrolled cannot be maintained pursuant to s 72 of this Act. In paragraph 6.c.1.viii of the Petition, the petitioner pleads that the second respondent invited members of his election campaign team to partially complete enrolment forms for their local voters other than themselves and directed his team members to sign the enrolment application forms on behalf of those persons. The second respondent denied that allegation. The plea goes on -- 5 of 28 -- [2024] SADC 108 4 to allege in paragraph 6.c.i.viii that the second respondent provided members of his election campaign team with partially completed enrolment forms and directed them to sign the enrolment application forms and that on about 5 June 2022, Robert Zhu, an associate and supporter of the second respondent provided the second respondent with a completed stack of supplementary roll enrolment application forms. The second respondent pleaded in response that Mr Zhu showed him a bundle of supplementary enrolment application forms and that he informed Mr Zhu that such forms were incomplete. 8 In paragraph 6.c.i.x, the petitioner pleads that there was a significant influx in the number of Chinese speaking persons including international students on the supplementary roll for the election and that it could be inferred that the increase in enrolments was influenced in part by illegal practices. Paragraph 6.c.1.xii makes a similar allegation. The second respondent pleaded that he does not know and cannot admit that allegation and said that if there was an increase in the enrolment of Chinese international students for the election, there was no basis for an inference to be drawn that it was as a result of any illegal practice committed by him or any person acting on his behalf. 9 In paragraph 6.c.i.14, the petitioner pleads that on 9 June 2022 a WeChat message was sent to property owners eligible to vote in the election endorsing the second respondent and stating that help can be given in applying for a ballot. 10 In paragraph 6.c.i.17, the petitioner pleaded that given the large number of increased voters and the coordinated efforts of the second respondent and his supporters, there were a number of additional votes that had been completed in favour of the second respondent other than by the person authorised to vote. 11 In paragraph 6.d.i, the petitioner pleaded that 73 persons to whom relevant voting papers had been issued, were international students, citizens of the People’s Republic of China, residents and/or landlords of apartments buildings in the CBD and enrolled on the supplementary roll by way of completion of the application for enrolment on the voter’s roll. The second respondent denied that allegation. Nature of documents sought to be tendered 12 Document 1 (pages 1-926 of the further tender book) comprised documents produced by the City of Adelaide on subpoena. Redacted versions of documents were obtained as a result of a freedom of information request made by a member of parliament, the Honourable Ben Hood. The documents were released to Mr Hood on 14 March 20124 pursuant to a freedom of information request and supplied to the petitioner on 19 March 2024. When released, the documents were redacted such that details of the voter who enrolled and the witness were redacted. 13 Those documents comprise emails communications between the second respondent and the City of Adelaide in relation to enrolment application forms. Attached to the emails are completed enrolment forms. There are over 40 emails sent from the second respondent to the City of Adelaide either enclosing completed -- 6 of 28 -- [2024] SADC 108 5 enrolment forms (primarily for the Central Ward) or posing questions regarding enrolment or the completed or partially completed forms. In total, about 701 completed enrolment applications were sent to the City of Adelaide by the second respondent. 14 Documents 2-7 comprise documents discovered by the second respondent subsequent to the production of the documents by the City of Adelaide. Documents 2 -5 comprise documents that are relevant only to the provenance of the documents numbered 6 and 7 and therefore do not need to be considered as provenance is not in issue. Document 7 is the English translation of Document 6 which comprises a copy of the documents produced in Chinese. The documents in Documents 6 and 7 comprise WeChat communications between the second respondent and various supporters including Mr Jin, Mr Zhang and Mr Zhu in relation to the completion of enrolment forms. 15 Documents 8-10 comprise documents discovered by the second respondent subsequent to the production of the documents by the City of Adelaide. Document 8 is relevant only to the provenance of the documents numbered 9 and 10 and therefore does not need to be considered as provenance is not in issue. Document 10 is the English translation of Document 9 which comprises a copy of the documents produced in Chinese. Documents 9 and 10 comprise some further WeChat communications between the second respondent and Mr Jin, Mr Zhang and Mr Zhu and the Youth Campus Group (which included Mr James Wu) in relation to enrolment forms and the election generally. 16 Documents 11-14 also comprise documents discovered by the second respondent subsequent to the production of the documents by the City of Adelaide. Document 11 is relevant only to the provenance of the documents numbered 12- 14 and therefore does not need to be considered as provenance is not in issue. Documents 13 and 14 are the English translations of document 12 which comprises a copy of the documents produced in Chinese. Document 13 comprises further WeChat communications between the second respondent and Mr Jin in relation to the election generally. Document 14 comprises further WeChat communications between the second respondent and Mr Trinity Zhang in relation to the election generally. 17 Documents 15-24 comprise documents that have been returned on subpoena by persons that, the petitioner submits, were supporters of the second respondent. Documents 15 and 16 comprised subpoenas addressed to Mr James Wu and Mr William Bai respectively and the response set out in their affidavits that they had no documents. 18 Documents 17-19 comprises the subpoena to Mr Keith Jin and the documents returned by him. The documents that were returned were in Chinese and are produced in Document 18. Document 19 is the English translation of the documents produced. The documents record communications between Mr Jin and -- 7 of 28 -- [2024] SADC 108 6 the second respondent from about June 2022 to November 2022 relating to the election. 19 Documents 20-21 comprises the subpoena to Mr Robert Zhu and the documents returned by him and the English translation of the documents produced. The documents record communications between Mr Zhu and the second and respondent from about June 2022 to about November 2022 relating to the election. 20 Documents 22-23 comprises the subpoena to Ms Irena Zhang and English translation of the documents produced. The documents record communications between the second and respondent and Ms Zhang from about September 2022 to about November 2022 relating to the election. 21 Document 24 comprises the subpoena addressed to Mr Trinity Zhang. 22 Documents 25-33 comprise public and miscellaneous documents such as ASIC searches, real estate searches, campaign expenditure return of the second respondent, an extract from the Central Ward roll relating to Ms Irena Zhang and a preliminary report from Forensic SA on ballot papers. These are documents which the petitioner wishes to tender because he submits contain relevant evidence which was not apparent until the other documents had been produced. 23 Documents 34-36 comprise documents that were discovered by the first respondent following the production of the documents by the City of Adelaide and the second respondent. They comprise documents relating to the re-issue of ballot papers of four electors to a postal address at 13 East Street, Magill. Legal principles-re-opening 24 There is no dispute that under s 71 of the Elections Act and Uniform Civil Rules 2020 (UCR) 172.1, the Court has the power to reopen the proceedings. The power is discretionary, but exceptional, and is to be exercised according to the public interest in maintaining the finality of litigation.3 The overriding principle is that the Court must consider whether the justice of the case, taken as a whole, favours granting leave to re-open the case.4 25 The caution displayed by the courts in ordering a matter to be re-opened is consistent with the objects of the UCR and maintaining public confidence in the efficiency of the judicial system.5 This point was made by the Victorian Court of Appeal in Spotlight Pty Ltd v NCON Australia Ltd6 where the Court observed that 3 Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 [20]; Mackellar Mining Equipment Pty Ltd v Thornton & Ors (Mackellar) (2019) 367 ALR 171; [2019] QCA 77 [58]; Spotlight Pty Ltd v NCON Australia Ltd (Spotlight) (2012) 46 VR 1;[2012] VSCA 232 [17]. 4 Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 [22]; Mackellar (2019) 367 ALR 171; [2017] QCA 77, [59]. 5 Mackellar, ibid. 6 (2012) 46 VR 1; [2012] VSCA 232, [17]. -- 8 of 28 -- [2024] SADC 108 7 if applications to re-open were regularly allowed, they would add enormously to the inefficiencies in the administration of justice. 26 There are four broad categories where a Court may grant leave to re-open a case.7 They are: (i) where fresh evidence, unavailable or not reasonably discoverable, before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; (iv) where there has been a mistaken apprehension of the law. 27 The parties were not in agreement about the appropriate test that should be applied in an application for a re-opening, particularly as it related to the effect of the evidence which might be admitted on the re-opening. The petitioner submitted that it was sufficient if he could show that the documents which he intends to tender were both relevant and admissible. The respondents on the other hand submitted that the relevant test was that the further evidence, if accepted, must be so material that the interests of justice requires its admission and it would most probably affect the result of the case. The research of the parties did not reveal any cases setting out the test to be applied in cases where the re-opening was based on a failure of one party to make proper discovery. 28 It is therefore necessary to examine in some detail the relevant authorities relating to re-opening. 29 In Smith v New South Wales Bar Association8 (a case involving an application to re-open because of a factual error by the Court of Appeal in its reasons for judgment), Brennan, Dawson, Toohey and Gaudron JJ observed that the power to re-open is discretionary and that although it exists up to the time of entry of judgment, it is to be exercised according to the public interest in maintaining the finality of litigation.9 The plurality held that the court should inquire why the evidence was not led at trial. If there was a deliberate decision not to call the evidence, that will usually be decisive.10 The plurality went on to hold that where judgment had been reserved but not delivered and the case was one in which new or additional evidence was available that was not, for good reason, available at 7 Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 [23]; Inspector- General in Bankruptcy v Bradshaw [2006] FCA 22 [24]; Davies v Davies & Anor (No 1) [2019] QSC 293 [9]. 8 (1992) 176 CLR 256. 9 Ibid, [27]. 10 Ibid, [32]. -- 9 of 28 -- [2024] SADC 108 8 trial, it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.11 30 Sofronoff P in Mackellar Mining Equipment Pty Ltd v Thornton12 held that the circumstances that may allow a case to be re-opened, after the case has been closed and judgment reserved but before judgment is delivered, must be exceptional, but the overriding principle must be whether, taken as a whole, the justice of the case requires the grant of leave to re-open. 31 The considerations by which these matters are assessed include the public interest in the finality of litigation, the public interest (and the interest of the parties) in the efficient conduct of the litigation, the expectation that the parties will advance all their arguments at the time of the hearing and the need to limit re- visiting of issues, the need for fairness in that the party is entitled to know all of the evidence it has to meet before making forensic decisions about cross- examination and the evidence it will lead, the concern that a party will take advantage of a re-opening to develop parts of their case that do not fall within the prescribed limits of the re-opened case, the significance of the new evidence, the reasons for the evidence not being led, any delay in seeking leave to re-open, the character of the matter on which judgment is reserved, the likely prejudice if the application is allowed and the inadequacy of a costs order to cure the element of unfair prejudice occasioned by the delay in the resolution of the litigation. 13 32 In Hines Exports Pty Ltd v Mediterranean Shipping Company SA14 (Hines), a case involving inadvertence of counsel, Bleby J (Doyle CJ and Perry J agreeing), accepted, following a decision of the Court of Appeal of New South Wales in Urban Transport Authority of NSW v Nweiser,15 that the guiding principle was whether the interests of justice were best served by allowing or rejecting the application to re-open.16 As senior counsel for the petitioner observed, Bleby J assessed the case by reference to the interests of justice. Bleby J in Hines also referred to the decision of Murray v Figge17 where Muirhead J held that fresh evidence should only be admitted where: (1) the fresh evidence is so material that the interests of justice require it to be admitted; (2) the evidence if believed would most probably affect the result; (3) the evidence could not by reasonable diligence have been discovered before; and (4) where inadvertence was established, provided the evidence was clearly admissible, it could be admitted on conditions which ensured no prejudice to the other party. Bleby J held that the interests of 11 Ibid, [32]. 12 (2019) 367 ALR 171; [2019] QCA 77, [58]. Approved and followed in Davies v Davies (No 1) [2019] QSC 293, [7]-[8]. 13 Davies v Davies (above) [10] citing FYD Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 [32]; Bendigo and Adelaide Bank v Clout (No 2) [2016] FCA 561 [25], Westgem Investments Pty Ltd v Commonwealth Bank of Australia (No 5) [2019] WASC 310 [94]. 14 (2001) 80 SASR 268 [2001] SASC 311. 15 (1992) 28 NSWLR 471, 478. 16 (2001) 80 SASR 268, [39] and [49]; [2001] SASC 311. 17 (1974) 4 ALR 612. -- 10 of 28 -- [2024] SADC 108 9 justice would require that the respondent be permitted to reopen its case if the appellant was permitted to reopen. 33 The principles set out in Murray v Figge were adopted by Habersberger J in Reid v Brett,18 where he held (citing Re Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (Ferguson)19 The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows: (a) the further evidence is so material that the interests of justice require its admission; (b) the further evidence, if accepted, would most probably affect the result of the case; (c) the further evidence could not by reasonable diligence have been discovered earlier; and (d) no prejudice would ensue to the other party by reason of the late admission of the further evidence. 34 Habersberger J in Reid v Brett, also referred to20 the statement by the High Court in Smith v the New South Wales Bar Association21 that in cases concerning an application to admit further evidence after the hearing had concluded but before judgment had been delivered, it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side. 35 In Ferguson,22 Toohey J referred to the test set out in Murray v Figge but then went on to hold that there were aspects of the matter before him that made the conventional tests not entirely appropriate.23 Toohey J allowed the re-opening because he was satisfied that the proposed evidence bore directly on the issues before the court.24 36 The general rule set out in Reid v Brett has not been inflexibly or mechanically applied in cases of setting aside a perfected judgment. The court must determine what will best serve the interests of justice in a particular case.25 Thus in Commonwealth Bank v Quade, the Court held, in relation to a failure to provide discovery of relevant documents: The application to that category of case of the general rule that a new trial should only be ordered on the ground of fresh evidence if it is "almost certain" (26) or "reasonably clear" (27) that the opposite result would have been produced if the evidence had been available at the first trial would, particularly where the failure was deliberate or remains unexplained, 18 [2005] VSC 18, [41]. 19 (1986) 67 ALR 491, 493-494 per Toohey J; [1986] FCA 259. 20 [2005] VSC 18, [41]. 21 (1992) 176 CLR 256; [1992] HCA 36. 22 (1986) 67 ALR 491;[1986] FCA 259. 23 Ibid, [10]. 24 Ibid, [16]. 25 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, [142]. -- 11 of 28 -- [2024] SADC 108 10 serve neither the demands of justice in the individual case nor the public interest in the administration of justice generally. In so far as the demands of justice in the individual case are concerned, it would cast upon the innocent party an unfairly onerous burden of demonstrating to virtual certainty what would have happened in the hypothetical situation which would have existed but for the other party's misconduct. In so far as the public interest in the administration of justice generally is concerned, it would be likely to ensure to the successful party the spoils of his own default and thereby encourage, rather than to penalize, failure to comply with pre-trial orders and procedural requirements. 37 In Yevad Products Pty Ltd v Brookfield26 (which was also a decision for an appeal of the setting aside of a perfected judgment), the Full Court upheld a finding by Lander J that there was a real possibility that had the documents been available at trial, a different result would have been obtained and therefore the interests of justice were best served by setting aside the perfected orders. 38 That finding by Lander J was approved in Players Pty Ltd (In Liquidation) (Receivers Appointed) v Clone Pty Ltd.27 Hargrave AJ (at first instance), on an application to set aside a perfected judgment where relevant and important material had not been discovered, approved Lander’s J statement that it was sufficient that the undiscovered documents may have led the court to a different conclusion. The Court noted in Players v Clone that the decision by Lander J (first instance) was referred to with approval with Kourakis J in earlier interlocutory proceedings in that case.28 39 While Players v Clone was appealed, both to the Full Court and later to the High Court, there is no suggestion that this principle stated above should not be applied. 40 From this analysis, the principles that govern an application to re-open for a failure by the other party to provide disclosure can be distilled to the following matters. 41 First, the power to re-open is discretionary and the overriding principle is whether, taken as a whole, the justice of the case requires the grant of leave to re- open. This principle come from the terms of s 71 of the Elections Act and the UCR and from cases such as Hines and MacKellar. 42 Secondly, there are four general circumstances in which an application for re-opening may be made. These are: (1) where there is new evidence that was not available at trial; (2) evidence was not adduced through inadvertence: (3) the party proceeded on mistaken apprehension of the law; or (4) proceeded on a mistaken 26 [2005] FCAFC 177. 27 [2015] SASC 133 at [78]. 28 Ibid, [79]. -- 12 of 28 -- [2024] SADC 108 11 apprehension of facts. These principles are well accepted and have been reaffirmed on many occasions.29 43 Thirdly, the discretion to order that a case be re-opened must be exercised according to the public interest in the finality of litigation. Other discretionary matters for the court to consider are the matters set out in Davies v Davies to which reference is made above including the efficient conduct of litigation, fairness to the other party in knowing the case it is to meet and making forensic decisions accordingly, the party seeking to re-open its case not taking advantage of a re- opening by developing other parts of its case that were not part of the re-opening. These principles again are not controversial and are derived from cases such as Smith v New South Wales Bar Association and Davies v Davies. 44 Fourthly, where new evidence is sought to be tendered which could not have been reasonably discoverable during the course of the trial and judgment has not been delivered, the primary consideration is whether the other party will be prejudiced if the court grants the application to re-open. This principle comes from Smith v New South Wales Bar Association. 45 Fifthly, in case of perfected judgments, an application to re-open based on the failure of a party to make proper discovery requires something less than a determination that the new evidence will probably affect the result of the case. It will be sufficient if the party seeking to re-open establishes that the new documents may have led to a different result or there is a real possibility that the outcome may be affected. This principle comes from cases such as Quade and Brookfield. 46 Sixthly, the criteria that have been expressed in cases such as Reid v Brett, Murray v Fegge and Hines that the further evidence must be so material that the interests of justice requires its admission and the further evidence, if accepted would most probably affect the result of the case are not jurisdictional matters that must be established in every case before an application to re-open is granted. There are a number of reasons that lead to this conclusion. They are: (a) the overriding principle is the interests of justice and in cases involving new evidence ascertained after trial that could not reasonably be discoverable at trial, the primary consideration is the prejudice to the other party. These principles are inconsistent with a rigid criteria that the party seeking to re-open must establish that the evidence would probably affect the outcome of the case; (b) Cases such as Reid v Brett, Murray v Fegge and Hines were not cases involving the failure of a party to make proper discovery leading to the discovery of new evidence. Given a breach of an obligation that is essential to a fair hearing, the court should not impose such a high 29 E.g. see Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 [23]; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, [24]; Davies v Davies & Anor (No 1) [2019] QSC 293, [9]. -- 13 of 28 -- [2024] SADC 108 12 standard before re-opening, particularly where any prejudice to the party who failed to make proper discovery has been self-induced; (c) In cases of re-opening after a perfected judgment where there has been a failure to make proper discovery, the test is that the new evidence may affect the result or there is a real possibility that it may affect the result. There is no logical reason why there should be a lesser test in the case of re-opening after a perfected judgment than where the application to re-open is made before the judgment has been delivered; (d) The criteria expressed in Reid v Brett include a requirement that the evidence could not have been ascertained at an earlier time with reasonable diligence. In cases involving inadvertence of counsel, that criteria could never be established. That suggests that the criteria are not rigidly applied; (e) In a case involving some 1954 pages of further documents that the petitioner seeks to tender, it is not practicable to determine whether that evidence would probably affect the result of the proceedings. That is particularly the case involving a circumstantial case as propounded by the petitioner. Such an exercise would involve almost writing a draft judgment and then considering how the further documents may affect that draft decision. To be able to make such a determination would require, for the parties to be able to make submissions, notice of the preliminary findings; (f) This case involves a challenge to an election under the Elections Act. The rules of evidence do not apply and the court must act according to good conscience and the substantial merits of the case without regard to legal technicalities.30 The Court of Disputed Returns seeks to ensure a fair election has taken place but also to provide public confidence that such an outcome has been achieved. Consistent with such an objective, the Court should not prevent a party from re-opening and adducing evidence which had been ascertained as a result of a party failing to make proper discovery by requiring the high standard of the evidence probably affecting the result of the election to be achieved before a case can be re-opened. 47 Seventhly, prejudice to the party who is resisting an application for re- opening can often be cured by giving that party the right to re-open and adduce evidence relating to the evidence adduced by the other party on the re-opening. That was the approach taken in Hines. 30 Section 71(3) and 71(4) of the Elections Act. -- 14 of 28 -- [2024] SADC 108 13 Exercise of discretion 48 The task of the Court is to exercise its discretion in accordance with the principles that have been discussed. Three preliminary points should be made. 49 First, this is a case where the application to re-open was first made because of new evidence that was first obtained through documents that were produced as a result of a request made by a third party under the Freedom of Information Act. The documents were initially produced in a redacted form in response to that request but have as a result of the subpoena addressed to the City of Adelaide now have been produced in an unredacted form. I am satisfied that this evidence could not reasonably have been discovered at trial. The petitioner was entitled to rely upon the second respondent having provided proper discovery. That failure remains unexplained. There is no affidavit filed by the second respondent explaining why the documents were not discovered. I am also satisfied that the further documents that are sought to be tendered on the re-opening that have either been discovered by the respondents or have been produced on subpoena by third parties were not reasonably discoverable at trial. There are a small number of public and miscellaneous documents where there may be some issue relating to whether the documents could have been discoverable earlier and I will address that issue later in these reasons. 50 Secondly, there is no relevant prejudice to the second respondent (or the first respondent) if there is a re-opening and documents tended. The time and cost associated with the reopening has been caused by the second respondent’s failure to make proper discovery. There was no evidence advanced by the respondents alleging any particular prejudice. 51 Thirdly, for the reasons that I have already expressed, in the circumstances of this case, the interests of justice in this case does not require the petitioner to show that the further evidence, if accepted, would probably have affected the result of the case. However, I do not accept that the submission of the petitioner that it is sufficient that he shows that the documents are merely admissible and relevant. As the authorities have shown, the re-opening of a case is exceptional, given the public interest in the finality of litigation and the efficient conduct of proceedings. In my opinion, the evidence must be capable of affecting the result of the petition. This is similar to the test formulated in Yevad Products and confirmed in Players v Clone that the undiscovered documents may lead the court to a different conclusion. I therefore approach the matter by considering whether the documents may affect the outcome of the proceedings. 52 The application of the test in this case must be undertaken in the context of the petitioner’s case, in part at least, being a circumstantial case. Therefore, a document might constitute circumstantial evidence because it, along with other evidence, may permit the trier of fact to infer the existence of a fact in issue.31 31 J D Heydon “Cross on Evidence” 11th Australian edition, LexisNexis Butterworths, 2017, [1100]. -- 15 of 28 -- [2024] SADC 108 14 53 I will now address the documents which the petitioner wishes to tender on a re-opening. Document 1 54 Document 1 comprises emails between the second respondent and the City of Adelaide enclosing enrolment forms of persons to be included in the supplementary roll. The emails also provide information or pose questions to the electoral commissioner to which the officers of the commissioner have responded. The second respondent did not discover Document 1. The petitioner was entitled to rely on the discovery of the second respondent. It follows that I reject the submission of the second respondent that the documents could reasonably have been discovered earlier if the petitioner had issued a freedom of information request. There was no reason to contemplate the issue of such a request before the documents were received by the petitioner. The enrolment forms themselves are already in evidence, being exhibit P57. 55 The relevant inquiry must therefore be to analyse the effect of those emails enclosing the enrolment forms and how they might assist in proof of the matters set out in the Petition. The documents are directly relevant for discovery purposes as pursuant to paragraph 6.c.1.7 of the Petition, it is in issue whether the second respondent or his agents distributed enrolment forms to international students and caused them to be enrolled. The documents which have been produced are directly relevant to that issue as they suggest that there has been a distribution of enrolment forms to international students and that the second respondent has caused those students to be enrolled, by distributing enrolment forms and sending them back to the City of Adelaide. Further, the documents are directly relevant to the plea in paragraph 6.c.i.10 of the petition that there was a significant influx in the number of Chinese-speaking persons including international students enrolled on the supplementary roll. 56 However, for the purposes of re-opening, one of the matters that the court will consider in exercise of its discretion is whether the petitioner can show that the documents which will be tendered may affect the outcome of the proceedings. If the petitioner is not able to establish this matter, there will be little utility in granting leave to re-open and even if other discretionary matters might favour re- opening, the Court is unlikely to grant leave to re-open to tender those documents. The emails contained in Document 1 to which the enrolment forms were attached permit the following inferences to be drawn: (1) the second respondent encouraged and assisted many persons to be enrolled and was actively engaged in that process; (2) many of those persons were students of Chinese nationality; (3) some other persons assisted him in enrolling electors; (4) the second respondent engaged with the electoral commissioner in relation to the enrolment process and (5) the second respondent wished to be successful in the election and took steps to maximise the number of persons who might support him to be included in the supplementary voters roll. -- 16 of 28 -- [2024] SADC 108 15 57 There is no prohibition against assisting persons to be enrolled on the voter’s roll and the second respondent committed no illegal conduct by doing so. It is not alleged that he did. Further, under s 72 of the Elections Act, the entitlement to vote of a person whose name appears on the voters roll as an elector cannot be called in question by the Court. Paragraph 6.c of the petition pleads how the alleged illegal practices are said to have affected the result of the election. 58 The conduct of the second respondent in relation to the enrolment of voters does not, in my opinion, have any rational connection to the question whether illegal practices that were alleged to have been committed affected the result of the election. The inferences that can be drawn from the emails contained in Document 1 do not relate to the outcome of the election or assist in the proof of that allegation. The documents (with the exceptions described below) also do not have any rational connection to the issue as to whether the second respondent or those acting on his behalf committed the illegal practices pleaded in paragraph 5 of the petition. It is not circumstantial evidence, which even in combination with other facts, would tend to prove the allegations. It follows that Document 1 (except as set out below) could not affect the outcome. It follows that in the exercise of my discretion, I do not grant leave to the petitioner to re-open for the purpose of tendering Document 1 as a whole. 59 The petitioner submitted that the inference could be drawn that a finding should be made that the second respondent always intended to gain possession of unopened voter packs. The petitioner submitted that an inference could be drawn from the enrolment forms sent by the second respondent specifying a postal address different to the enrolment’s residential address. I do not consider that this issue is open on the pleadings. There is no plea in paragraph 5 of the Petition that the illegal practice included exercising a vote for persons who had inserted a different postal address from their residential address (except in relation to the 25 May 2022 message which I discuss below). There is no plea in paragraph 6 that that this was a matter relied upon in support of the allegation that the illegal practices affected the result of the election. 60 There are three exceptions to my conclusion about Document 1. The first exception is where the emails refer to or include persons who are one of the 73 persons identified in appendix A to the Petition and are referred to in paragraphs 5.e, 5.f and 5.g of the Petition. Those paragraphs plead that the signatures on the enrolment form and the declarations on the voting envelope were different such that there was a false declaration on the voting envelope. If it is established, for example, that there was a false declaration by a particular voter and that voter’s enrolment form was sent by the second respondent to the electoral commissioner, there may be an inference that voter cast their vote in favour of the second respondent. In that way, such emails may establish that the conduct alleged in paragraph 5,e-5.g of the Petition, if it is found to have occurred, affected the result of the election. Annexure A to these reasons sets out in table form where there is reference to these 73 identified persons within Document 1 and the application forms relevant to those persons. -- 17 of 28 -- [2024] SADC 108 16 61 The second exception concerns paragraph 5.c.v.1 where an allegation is made that by a WeChat message sent on about 25 May 2022, the second respondent directed supporters to use a postal address in his control (which in fact was 1/176 Franklin Street Adelaide). The communication dated 10 July 2024 (proposed tender book, page 868) refers to enrolments specifying that address. That email and the enrolment forms that relate to that address may affect the outcome as it a fact, with other facts, which might permit an inference to be drawn that the second respondent took or attempted to take possession of voting packs where that address had been specified. 62 The third exception concerns the enrolment forms of electors whose ballots were found by the electoral commissioner to be affected by illegal practices and were excluded from the count. These are at pages 266, 466-469, 350 and 727 of the proposed tender book. I address later in these reasons why I come to this conclusion in respect of those documents. 63 In the exercise of my discretion, I permit the petitioner to re-open and tender the documents that come within the three exceptions. I have come to this conclusion because I consider that the documents may affect the outcome of the proceedings and the other discretionary matters favour the re-opening for that purpose. Documents 7, 10, 19, 13, 17-19 and 24 64 The issues raised by the Petition include whether a person on behalf of the second respondent (with or without his authority): (1) acted as an assistant to a person voting at the election contrary to s 61(1) of the Elections Act; (2) had in their possession or attempted to gain possession of postal voting papers for that election (other than papers issued to that person as an elector). One of the particulars of those allegations was that Mr Keith Jin was given by Mr William Bai on or about 27 October 2022 a large stack of opened voting packs. The second respondent only admitted that Mr Jin was a supporter of his campaign but otherwise denied the allegation. The petitioner must therefore establish that Mr Jin was acting on behalf of the second respondent if it is found that he had in his possession the voter packs. Neither Mr Jin nor the second respondent gave evidence. 65 In those circumstances, the question of whether Mr Jin was acting on behalf of the second respondent can only be determined by inferences that might be drawn from all of the documents and other evidence. Communications between Mr Jin and the second respondent relating to the election and including the enrolment applications provide the basis for the drawing of such an inference. The communications provide evidence of the nature of the relationship between Mr Jim and the second respondent. Such communications therefore are material and may affect the outcome of the Petition. The communications that comprise Documents 7, 10 and 13 were only ascertained by the petitioner following further discovery by the second respondent after trial. Documents 17-19 were only ascertained after -- 18 of 28 -- [2024] SADC 108 17 the return of the subpoena. All of these documents could not have been ascertained prior to the completion of the trial. 66 Given the materiality of the documents, the fact that they could not have been reasonably obtained prior to the completion of the trial, the fact that they have been ascertained following the inadequate discovery by the petitioner and the lack of any relevant prejudice to the respondents, it follows that in the exercise of the discretion, the petitioner should be permitted to re-open and tender the communications between the second respondent and Mr Jin that form part of Document 7 and Document 10, the WeChat communications between Mr Jin and the second respondent that are comprised in Document 13 and Documents 17-19. 67 The petitioner also pleads that Mr Trinity Zhang, as a person acting on behalf of the second respondent, took possession of unopened voter packs and in doing so contravened s 61(4) of the Elections Act. The second respondent denied that Mr Zhang acted on his behalf in doing so. Mr Zhang also did not give evidence. In these circumstances, for the same reasons as set in relation to Mr Jin, communications between Mr Zhang and the second respondent relating to the election and including the enrolment applications provide a basis for drawing of an inference as to whether Mr Zhang was acting on behalf of the second respondent. It follows, for the same reasons that have been expressed in relation to the documents concerning Mr Jin, that the petitioner should be permitted to re- open and tender the communications between the second respondent and Mr Zhang that form part of Document 7 and Document 10, and the WeChat communications between Mr Zhang and the second respondent that are comprised in Document 14. Document 24, being the subpoena issued to Mr Zhang could not affect the outcome as no documents were returned on that subpoena. It follows that the petitioner should not be permitted to re-open for the purpose of tendering Document 24. 68 The petitioner has made submissions as to further uses that might be made of the communications between the second respondent and Mr Jin and Mr Zhang. As I have permitted the re-opening and the tender of these documents, I do not need to consider for the purposes of this application whether the further uses would also have provided a basis for re-opening. 69 Document 7 also contains WeChat communications between the second respondent and various supporters in relation to the completion of enrolment forms. I have already found that the email or WeChat communications that involve Mr Jin and Mr Zhang may affect the outcome and that the petitioner should be permitted to re-open to tender those documents. For the reasons which I have expressed above in relation to Document 1, I do not consider that the petitioner should be permitted to re-open and tender the WeChat communications with the other supporters (as those communications relate only to enrolment applications) except in relation to Mr Bai (pages 1259-1261 of the proposed tender book) and in relation to three specific communications to which I refer below. -- 19 of 28 -- [2024] SADC 108 18 70 The communications with Mr Bai are in a different category as Mr Bai is named in paragraph 5.c.iv.2 of the Petition as being the person who handed open voter packs to Mr Jin. In these circumstances, I consider that Mr Bai’s relationship with the second respondent may affect the outcome of the proceedings as it is part of the factual matrix concerning the matters alleged in paragraph 5.c.iv.2 of the Petition. 71 There are also three documents that fall into a different category and which were relied upon by the petitioner in his written submissions. The communications with Wenqing He at 1246 and with Wilson Espinosa (page 946, in Document 3) may support an inference that the second respondent had knowledge of, or was involved in, the enrolment of persons who were not entitled to be enrolled on the supplementary roll. The petitioner might seek to use that fact to draw an inference as to the conduct of the second respondent which may, in conjunction with other facts, be used to prove the extent of the alleged breaches of s 61 or that the alleged breaches of s 64, if established, may affect the result of the election. The email and enrolment forms at pages 1106-1110 (also in Document 3) which includes enrolment forms of voters who the electoral commissioner found to be affected by illegal practices also falls into the same category. 72 The petitioner is permitted to re-open for the purpose of tendering those documents. 73 Document 10 comprises WeChat communications between the second respondent and Mr Jin, Mr Zhang and the Youth campus group including Mr James Wu. I have already I have already found that the WeChat communications that involve Mr Jin and Mr Zhang may affect the outcome of these proceedings and that the petitioner should be permitted to re-open to tender those documents. For the reasons which I have expressed above in relation to Document 1, I do not consider that the petitioner should be permitted to re-open and tender the WeChat communications with Mr Zhu in relation to enrolment forms being the communications at the further tender book page 1356. 74 The WeChat communications at pages 1359 (2nd and third columns) to 1365 relate to WeChat communications involving Mr James Wu and other Chinese student leaders in relation to the holding of the dinner at the Ancient Oriental restaurant on 27 May 2022 at which the petition alleges a bribe was offered by the second respondent to the person who managed to obtain the most enrolments and votes for him. 75 The proof of the bribe depends on the evidence of Mr Ong who attended at the dinner. The holding of the dinner and the attendance of the student leaders is admitted on the pleadings. However, the WeChat messages provide a context and background to the dinner and the attendance of the other student leaders at the dinner. That background and context is material to the assessment of the evidence of Mr Ong and is therefore a matter which may affect the outcome of the -- 20 of 28 -- [2024] SADC 108 19 proceedings. As other discretionary matters favour the application of the petitioner, the petitioner is permitted to re-open and tender pages 1359-1365. Documents 15 and 16 76 Documents 15 and 16 comprise the subpoena issued to Mr Wu and Mr Bai and their responses in affidavits that they have no documents. The only possible use to which the affidavit of Mr Wu (Document 15) could be used would be to rebut any submission made by the second respondent that it might be expected that those persons would have produced documents had they been involved in the conduct alleged in the Petition. The second respondent has not made any such submission in the proceedings. Such a submission, if made on the re-opening would not be in response to the documents admitted on the re-opening and would be afforded no weight. The affidavit could not affect the outcome and the petitioner should not be permitted to re-open for the purpose of tendering that document. 77 The position in relation to Document 16 (Mr Bai) is in a different category. In the affidavit, Mr Bai refers to having some brief communications with the second respondent regarding enrolment. Mr Bai is named in paragraph 5.c.iv.2 of the Petition as being the person who handed open voter packs to Mr Jin. In these circumstances, I consider that Mr Bai’s relationship with the second respondent may affect the outcome of the proceedings as it is part of the factual matrix concerning the matters alleged in paragraph 5.c.iv.2 of the Petition. The petitioner is permitted to re-open for the purpose of tendering that document. Documents 20 and 21 78 Documents 20 and 21 comprise the subpoena to Mr Robert Zhu and the WeChat communications produced by him in response to that subpoena. The communications fall into two categories: those dealing with the enrolment of persons on the supplementary roll and Mr Zhu’s involvement in that process and communications relating to the election. For the reasons which I have previously expressed in relation to Document 1, the communications relating to the enrolment do not have any rational connection to the issue as to whether the second respondent or those acting on his behalf committed the illegal practices pleaded in paragraph 5 of the petition. It is not a fact, which even in combination with other facts, would tend to prove the allegations. 79 The communications relating to the election do not relate to the allegations pleaded in paragraph 5 of the Petition. At their highest, they provide evidence of the second respondent engaging agents to contact persons on the electoral roll. They also do not have any rational connection with the proof that the alleged illegal practices affected the result of the election. 80 It follows that Documents 20-21 could not affect the outcome of the proceedings. It follows that in the exercise of my discretion, the petitioner should not be permitted to re-open for the purpose of tendering Documents 20 and 21. -- 21 of 28 -- [2024] SADC 108 20 Documents 22 and 23 81 Documents 22-23 comprise the subpoena to Ms Irena Zhang and the WeChat communications produced by her in response to that subpoena. The communications show Ms Zhang’s assistance to the second respondent in the election campaign. I do not consider that the fact of engaging agents either for the purpose of enrolment of voters or for the election, by itself, might be a matter that could be a fact, even with other facts, permit an inference to be drawn that illegal practices have been committed or that those illegal activities affected the outcome of the election. 82 The petitioner has submitted that these communications are tendered for the purpose of making submissions on the completeness of the discovery by the second respondent. I do not consider that the communications, tendered for this purpose, might affect the outcome and the petitioner should not be permitted to re-open for the purpose of tendering documents for that purpose. The second respondent did not give evidence at the trial and therefore the Court will not be asked to make credit findings about his evidence. The Court has already made orders that the second respondent failed to make specified discovery and ordered that further discovery be made. Ultimately, the second respondent has made further discovery by providing further lists of documents. No application for still further discovery been made or that the second respondent be cross-examined on that discovery. In these circumstances, even if some lack of discovery were established, it does not tend to prove, even with other facts, the matters pleaded in paragraph 5 of the Petition or that they affected the result of the election. 83 The petitioner should not be permitted to re-open for the purpose of tendering Documents 22 and 23. Documents 25-33 84 Documents 25-33 comprise public documents. 85 Documents 25 and 26 comprise a certificate of title and ASIC extract for Inatex Pty Ltd respectively which together show or at least provide a basis for a submission that Ms Irena Zhang was the director of the company that owned the property at 117A Gouger Street. That property was used by the second respondent as his campaign headquarters. It has not been established by the petitioner either how this may affect the outcome the proceedings or why it was not ascertainable prior to the completion of the trial. It follows that in the exercise of the discretion, the petitioner should not be permitted to re-open for the purpose of tendering Documents 25 and 26. I reach the same conclusion in relation to documents 27 and 28. 86 Document 29 relates to the campaign expenditure report of the second respondent which records that the second respondent engaged Adelaide Eye Media firm for the campaign. The submissions of the second respondent accepted that the document showed that Mr Jin had a close relationship with the second respondent. -- 22 of 28 -- [2024] SADC 108 21 There is no evidence as to why that document was not available prior to the completion of the trial. I agree with the submission of the second respondent that the petitioner has not established how this document may affect the outcome of the proceedings. The campaign return refers to photograph and design work being undertaken by Adelaide Eye Media. The evidentiary value of this evidence is slight particularly in the circumstances where I have ruled that the petitioner be permitted to re-open to tender the communications between Mr Jin and the second respondent. 87 Document 30 relates to an extract from the central ward roll extract which shows that Zisa Pty Ltd, a company associated with Ms Irena Zhang, had as its registered address Regency Apartments, 188 Morphett Street Adelaide. There is no evidence as to why that document was not available prior to the completion of the trial. The petitioner has not established how this document may affect the outcome of the proceedings. The petitioner should not be permitted to re-open to tender this document. 88 Document 32 relates to some sales information relating to 2/31 Henley Beach Road, Mile End. It is not apparent from the submissions of the petitioner why this document may affect the outcome of the proceedings or why it was not available prior to the completion of trial. The petitioner should not be permitted to re-open to tender this document. 89 Document 33 is a preliminary forensic report dated 27 March 2023. The report records “results pending”. The petitioner seeks to tender the report for the limited purpose of ascertaining how the votes had been cast in the 16 ballot papers that the electoral commissioner had ruled to be affected by illegal practices and excluded from voting. In fact, the majority of those votes were cast in favour of the second respondent. The identity of the voters in the report have been redacted. There was a broad submission from the petitioner that the fresh evidence of a close nexus between the second respondent and those ballots that were found to be affected by illegal practices caused the need to review the illegal declarations and ballots that were completed. Counsel for the second respondent submitted that the report was included in the tender book at trial and was therefore clearly available to tender at trial. In my opinion, the report was available at trial. There is nothing new in the material that has been ascertained since trial that provides any justification for forming some different view about the evidentiary value of the report. In paragraph 6.c.1.5 of the Petition, the petitioner relies upon the further scrutiny and the exclusion of some ballots to support its contention that the illegal practices alleged in paragraph 5 of the Petition affected the result of the election. There was no evidence adduced or submission by the petitioner that the report was not tendered because of inadvertence. The only inference is that the petitioner made a conscious decision not to tender the report. The petitioner should not be permitted to re-open to tender this document. 90 Documents 34-36 comprise documents discovered by the first respondent and relate to the re-issue of ballot papers to four electors at 13 East Street Magill. -- 23 of 28 -- [2024] SADC 108 22 Document 31 is a public document relating to that address. Two of the electors, Chnag Cai and Jia Peng Li were persons who were part of the 73 voters in respect of whom it is alleged in paragraphs 5.e-5.g of the Petition false or forged declarations were made. Document 1 establishes that the second respondent had sent the enrolment forms of those persons to the City of Adelaide. In these circumstances, I consider that the petitioner has established that there was good reason why the documents were not obtained prior to the completion of the trial. The documents may affect the outcome of the proceedings in that if it is established that the declarations were false or misleading, the documents, when coupled with other evidence, may permit the inference to be drawn that the votes would have favoured the second respondent. In the exercise of the discretion, the petitioner is permitted to re-open and tender Documents 31 and 34-36. Conclusion 91 For the reasons that I have expressed I make the following orders: 92 The petitioner be granted leave to re-open and on the re-opening tender the documents set out below. • Document 1 insofar as it includes (1) emails relating to the 73 persons referred to in paragraphs 5.e-5.g of the Petition and the enrolments applications relating to those persons. Those emails and application forms are set out in annexure A to these reasons; (2) the WeChat message dated 10 July 2024 and the enrolments forms referred to in that email; and (3) the enrolment applications at pages 266, 350, 466-469 and 727 but not otherwise. • Pages 946 and 1106-1110 of Document 3 but not otherwise. • Documents 6 and Document 7 insofar they record communications between the second respondent and Mr Jin, the second respondent and Mr Trinity Zhang and the second respondent and Mr Bai and page 1246 but not otherwise. • Documents 9 and 10 insofar they record communications between the second respondent and Mr Jin and the second respondent and Mr Trinity Zhang and pages 1359-1365 but not otherwise. • Documents 12-14. • Document 16. • Documents 17-19. • Documents 31 and 34-36. -- 24 of 28 -- [2024] SADC 108 23 93 Provenance of the documents is not in issue and therefore the tender of documents 2, 4, 5, 8 and 11 was not pressed. Document 3 mainly goes to provenance except in respect to the documents which I have described above. 94 The petitioner is not granted leave to re-open for the purpose of tendering the documents listed below. • The balance of Documents 1, 6, 7, 9 and 10. • Document 15. • Documents 20-24. • Documents 25-30. • Documents 32-33. 95 The respondents are also permitted to re-open for the purpose of tendering documents or adducing evidence in response to the material tendered by the petitioner. The respondents are also permitted on the re-opening to cross-examine, as has been foreshadowed, the interpreter in relation to the translation of the documents that have been tendered which were initially in Chinese. 96 The petitioner should prepare draft minutes reflecting these reasons. -- 25 of 28 -- [2024] SADC 108 24 ANNEXURE A -- 26 of 28 -- [2024] SADC 108 25 -- 27 of 28 -- [2024] SADC 108 26 -- 28 of 28 --