AUSTRALIAN POSTAL COMMISSION v ABALOS [1989] NSWCA 12

AUSTRALIAN POSTAL COMMISSION v ABALOS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS and MAHONEY and MEAGHER JJA 12 July 1989

[1989] NSWCA 12

Samuels and Mahoney and Meagher JJA It appears from the judgment that there were three heads of negligence in substance litigated at the trial. The first concemed the initial devising and designing of the coding system and its component parts, the second the maintenance of the coding equipment and the third asserted the defendant's failure to devise a proper system for the training and supervision of the coders. Mathews J rejected the first two heads of negligence and found for the plaintiff on the third. Accordingly, having regard to the terms of Pt51 114, it was not open to the respondent to seek to support the judgment other than on the third of these heads without filing a notice of contention, the provisions of that rule having superseded the former practice that a respondent without notice of any sort could seek to sustain the judgment below upon any ground that was fairly available.

We drew to Mr Murray's attention yesterday the view that this limitation applied to the way in which the respondent's case was presented and we did so again this morning when it appeared that he was seeking to move beyond the issues presented by questions of the defendant's failure to ensure the proper training and supervision of the coders. After some debate as to the application of 114 he sought leave, which of course we have power to grant, to file a notice of contention which would seek to support the judgment below, that is judgment for the plaintiff in the sum of damages awarded, on the grounds firstly that the defendant was negligent in the initial devising and design of the coding system and its component parts and secondly that it was negligent in failing adequately to maintain the coding equipment. There remains of course the third head which does not need to be covered by any notice.