DELLA - PIETRA v SUNPAK FRUIT JUICES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, HANDLEY JJA and Hope AJA 23 September 1991, 23 September 1991 [1991] NSWCA 77 APPEAL — application to amend pleadings to raise issues not previously run at trial — application refused and appeal dismissed — Coulton v Holcombe 162 CLR 1 and WATER BOARD v MOUSTAKAS 77 ALR 193 applied. Samuels AP This was an action for wrongful dismissal in which the present appellant was the plaintiff. In the events which have happened it is unnecessary, I think, to traverse the facts in any detail. The defence before his Honour Judge McCredie below was, in substance, that the appellant had not been dismissed but had agreed to resign and a document of resignation was tendered and admitted in evidence. Further, there was material that the agreement to which the appellant and the respondent came in November 1985 was that in consideration of a sum of some $37,000 and payment of what were described as statutory entitlements and other moneys, the appellant would furnish his resignation as he did. Subsequently a further sum of $11,000, approximately, was paid and there is evidence as to how that was made up. It did not, it seems, include any amount for long service leave or for superannuation. The learned judge found that the appellant had not been dismissed but had resigned in the circumstances which I have briefly summarised. There was a cross claim, but no further notice need be taken of that. The appellant then filed a notice of appeal containing 59 grounds. Until a few days ago that stood as the basis for the appeal which, because of the time which it was inferred by the Registrar so many grounds would entail in argument, was set down for today and tomorrow. However, in effect on Friday the appellant changed tack very significantly and indicated that he no longer desired to pursue all these grounds of appeal, but would endeavour to argue that the respondent had failed to pay him his statutory entitlements and, in particular, had failed to pay what was due for accrued long service leave, accrued annual leave, plus holiday loading and superannuation. Written submissions to this effect were provided late on Friday. This morning Mr Robb of counsel for the appellant, with a candour which the Court has found of considerable assistance, has conceded that an appeal in those terms will not run, and that what he needs to do is to seek an amendment to the statement of claim in order to raise the matters he seeks to agitate by way of appeal, which were never the subject of debate before the learned trial judge. Mr Young of counsel for the respondent, has underlined, he having been at the trial, the fact that these matters were not debated and, indeed, the learned judge's judgment which is -if I may say so - complete in all other respects does not mention these matters. 2 UNREPORTED JUDGMENTS The position, therefore, is that the appellant now seeks to amend to raise questions which were never litigated below and which would require evidence both to prove and to rebut them. That evidence is not to be found in the record and a new trial would be the inevitable result, if the application were allowed. The principles which should guide us are quite clear and are to be found in two decisions of the High court, the first Coulton v Holcombe (1986-87) 162 CLR 1, in particular at 7, 8 and 11. At 11 the majority say this: "The first respondents must be bound by the conduct of their case at the trial. It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied." I interpolate that in the present case an actual new trial would be required. The second case is Water Board v Moustakas (1987-88) 77 ALR 193 at 196, which conveniently summarises the law in these words: "More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the tule is strictly applied." In my opinion it is plain that this is not a case in which the circumstances satisfy those criteria. It is not one of the exceptional cases where a party should be permitted at this stage to run a new case and, in particular perhaps, to have a new trial for the purpose. If it is of relevance, then so far as time considerations are concerned it may be that it is still open to the appellant to pursue remedies of the kind to which I have referred. However, it would not be fair or in the interests of justice and would defeat the expectations of the respondent at least, which I take it to be a definition of justice relevant to a case such as this, if we were to permit the amendment with the consequences which would follow. In my opinion, therefore, the application to amend the statement of claim should be refused with costs. It follows, as is agreed, that the appeal should be dismissed with costs. Handley JA I agree. Hope AJA I agree. The appeal is dismissed with costs. Counsel for the Appellant: S ROBB Counsel for the Respondent: M D YOUNG Solicitors for the Appellant: LAURENCE and LAURENCE Solicitors for the Respondent: CLAYTON UTZ