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other than on the third of these heads without filing a notice of contention, the provisions of that rule having superseded the former practice that a respondent without notice of any sort could seek to sustain the judgment below upon any ground that was fairly available.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. Mr Abadee has indicated that while he opposes the application he does not suggest that there is any prejudice that would be accorded to the appellant if the application were granted, at least no prejudice which could not be compensated by an award of costs. In our view the application has come very late but we feel that the respondent should be given the opportunity to put the whole of any case that might be available to her. We are influenced, of course, by Mr Abadee's frank concession that he cannot point to any serious prejudice which might have led us to reject the application. Accordingly we grant leave to the respondent to file a notice of contention in the general terms to which I have adverted and we order that the document should be filed and available in court by 2.15 today. We order that the respondent shall pay the costs of and incident to the notice of contention which will include of course any costs which arise from the additional time which the appeal might take. The respondent must pay those costs in any event. 2 UNREPORTED JUDGMENTS We will leave open to Mr Abadee should it arise the right to apply for an adjournment if he finds difficulty in meeting what is a new case because, I should add, it is not to be found in the respondent's written submissions. I hope that that necessity will not arise and that we can conclude the appeal by the end of the day. However, the parties must take such time as is reasonably required in order to do their clients' case proper justice.