SYRON v NEWELLS CREEK SAWMILLING COMPANY PTY LIMITED [No 1] [1995] NSWCA 464

SYRON v NEWELLS CREEK SAWMILLING COMPANY PTY LIMITED [No 1]

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, KIRBY P and COLE JA 8 September 1995

[1995] NSWCA 464

PRACTICE & PROCEDURE — appeal — amendment of grounds of — abandonment of original grounds of appeal — late notification prior to hearing of appeal of legal objection to the judge's summing-up — such objections not noted or reserved at the trial — held: (1) The Court had the power to permit the amendment, but should only do so to cure a "substantial wrong or miscarriage". Eggins v Brooms Head Bowling & Recreational Club Limited (1986) 5 NSWLR 521 (CA); Bromley v Tomkin & Ors (1987) 11 NSWLR 211 (CA) appld; (2) The Court will deny amendment where, to permit it would involve procedural unfairness to the other party by reason of questions it may have asked or evidence it may have called at trial if the matter had been raised there. Coulton & Ors v Holcombe & Ors (1986) 162 CLR 1 appld.

APPEAL — notice of — grounds of — late application to amend — alleged misdirection of trial judge in charge to jury — points not reserved — whether "substantial wrong or miscarriage" — held: Not — amendment denied.

Supreme Court Rules Pt 20, Pt 51 r 16. Gleeson I shall ask the President to give the first judgment on this matter..

Kirby P. This is the second time that these proceedings have been before this Court.

Original grounds of appeal in second appeal.

The first was following a judgment by Loveday J after a verdict of a jury of four. On that occasion the jury returned a verdict of $715,000. The appeal to this Court resulted in that judgment being set aside. On 26 July 1994 this Court ordered a new trial limited to damages. That new trial was conducted before Barr AJ and a jury. It resulted in a verdict of $265,000. Allowing for workers" compensation payments, Judgment was entered on 27th April 1995 in the sum of $198,652. It is against that judgment that the appellant now comes, for the second time to this Court.