Media Niugini Ltd t/as EMTV v International Management Group of America Pty Ltd [2023] NSWCA 33

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Media Niugini Ltd t/as EMTV v International Management Group of America Pty Ltd [2023] NSWCA 33 Hearing dates: 22 July 2022 Decision date: 02 March 2023 Before: Gleeson JA at [1]; Leeming JA at [7]; White JA at [17] Decision: (1) Grant leave to the appellant to amend its Notice of Appeal to add ground nine, in accordance with its proposed Amended Notice of Appeal; (2) Appeal dismissed with costs. Catchwords: APPEALS – Practice and procedure – Procedural fairness – Duty to inform parties of proposed departure from basis upon which case is conducted – Where trial judge said to have adopted construction of commercial contract different from those proffered by parties during hearing – Where trial judge's conduct said to constitute failure to accord procedural fairness to parties – Where principal issue at trial was existence, rather than construction, of contract in question – Whether trial judge's failure to alert parties to proposed construction was procedurally unfair – Whether trial judge actually decided proper construction of contract – held that trial judge's conduct and findings evince no failure to accord procedural fairness APPEALS – Scope of appeals – New point taken on appeal – Principle of finality – Where appellant did not raise questions of construction at first-instance in answer to respondent's claim for damages for breach of contract – Where construction of contract raised on appeal under guise of procedural fairness as ground for avoiding liability – Where questions of construction readily apparent and able to be raised at first-instance – No issue of principle Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71 Cases Cited: Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 Browne v Dunn (1893) 6 R 67 Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 Meehan v Jones (1982) 149 CLR 571; [1982] HCA 52 Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18 Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305; [1989] HCA 13 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8 Category: Principal judgment Parties: Media Niugini Limited trading as EMTV (Appellant) International Management Group of America Pty Ltd (Respondent) Representation: Counsel: S A Lawrance SC (Appellant) I R Pike SC with T E O'Brien (Respondent)