Page 111 - Judge Manual 2017

improper procedures or misapplication of a rule. The protest committee might
decide that a key conclusion was not supported by the facts. More often, a
hearing is reopened when a mistake was made in the interpretation of a rule.
For a hearing to be reopened to consider new evidence, the evidence must be
both new and significant. Rule M4 and World Sailing Case 115 provide an
Interpretation of the word ‘new’ as used in rule 66. The criteria provided by this
Case states:
Evidence is ‘new’

• if it was not reasonably possible for the party asking for the reopening to
have discovered the evidence before the original hearing

• if the protest committee is satisfied that before the original hearing the
evidence was diligently but unsuccessfully sought by the party asking for
the reopening, or

• if the protest committee learns from any source that the evidence was not
available to the parties at the time of the original hearing
Significant evidence means evidence that bears directly and substantially upon
the specific matter under consideration and which is neither cumulative nor
redundant. Cumulative evidence is additional evidence of the same character
as existing evidence and that supports a fact established in the previous
hearing, especially a fact that does not need further support. Significant
evidence must be relevant to the decision and which leads to a reasonable
possibility that, when viewed in the context of all the evidence, the outcome of
the case will change.

A party to a hearing has an obligation under the rules to prepare for the hearing,
to locate witnesses, to collect evidence in advance of the hearing, and to
request a postponement if it is needed, as described in rule 63.2. If a witness
or other evidence is known to exist but cannot be obtained in time for the
hearing, it is the responsibility of the party to ask for additional time. The scribe
will record any such request. For example, a new witness presented after the
hearing is closed, is rarely considered “new evidence” unless the party made
the protest committee aware of the witness before or during the original hearing,
or unless the witness and his testimony were unknown to the party. When a
party does not search for witnesses or does not ask the protest committee for
a postponement, any later request to reopen to hear a “new” witness will rarely
be granted.

If, however, the party attended the hearing and requested a postponement or
extension of time to locate a witness, a subsequent request to reopen may meet
the test of rule 66 and the protest committee will likely want to reopen the
hearing.
Photographic and video graphic evidence that is claimed to be new can and
should undergo a preview by some or all of the members to establish that the
evidence is new, material and not cumulative. The chairman will usually assign
two or three members to view the evidence and report back to the protest
committee. If the evidence is appropriate and pertinent, or if there is any doubt,
the members will refer the evidence to the full protest committee.
The protest committee could also learn itself of significant new evidence, and