A ROYALE AND CO (AUST) PTY LIMITED v HAROLD SCRUBY CONSULTANCIES PTY LIMITED [1988] NSWCA 1

A ROYALE & CO (AUST) PTY LIMITED v HAROLD SCRUBY CONSULTANCIES PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and PRIESTLEY JJA 8 April 1988 [1988] NSWCA 1

APPEALS — practice — application to amend grounds of appeal — leave to amend granted in part only.

Hope, Samuels and Priestley JJA At the opening of the hearing of this appeal Senior Counsel for the appellant sought leave to amend the notice of appeal by adding two grounds Ground 3, the first of the grounds sought to be added, is not opposed by the respondent, and leave is accordingly given to amend the notice of appeal to add that ground

The proposed ground 4 is in these terms:-

"His Honour denied natural justice to the appellant when omitting, before judgment, to provide to counsel an opportunity to argue that Exhibit F Should not be excluded from consideration under the principle expressed in Browne v Dunn, particularly after indicating during the respondents closing address a disinclination to apply Browne v Dunn adversely to the appellant.

To Support this ground reference has been made to affidavit evidence as to what took place during the trial, including a reference to the notes of the learned trial judge.

Having regard to the circumstances of the case and the evidence upon which it is Sought to rely to base that grounds, the Court is of the opinion that leave should not be given to amend the notice of appeal to include ground 4 and that application is refused.