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. When the notice of appeal was filed it raised, in all, seven grounds of appeal. They were: 1. That the decision of the jury was perverse. 2. The amount of damages awarded was inadequate. 3. His Honour misdirected the jury on the existence and importance of radiological evidence. 4. His Honour misdirected the jury as to the significance and meaning of a discogram. His Honour misdirected the jury as to the evidence of Dr Isaacs. The whole of his Honour's summing up was prejudicial and biased in favour of the Respondent. 7. His Honour erred in directing the jury not to use the Plaintiffs calculation (crib) sheet. nin 2 UNREPORTED JUDGMENTS The appellant was very late in filing the written submissions which are required by the Rules. Indeed they were only received by the Court yesterday afternoon. The written submissions for the first time disclosed that, although the appellant wished to proceed with ground 7 in the grounds of appeal filed, grounds 1-6 were in effect abandoned. A proposal to add two additional grounds is opposed. Instead two additional grounds were proposed. These were: 1. That the trial judge failed to direct the jury to assess past hypothetical and future losses by reference to the chance that the plaintiff might suffer them but imposed upon the plaintiff the higher onus of proving those matters on the probabilities — Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; and 2. That the trial judge failed to direct the jury in accordance with Purkess v Crittenden (1965) 114 CLR 164. The respondent opposes the grant of leave to raise the additional two grounds of appeal. It does so upon the basis that the grounds were not reserved by counsel then appearing at the trial in the interests of the appellant. The right of the appellant to argue the seventh ground of appeal is not in contest, it having been raised in the notice of appeal. In due course the Court will proceed to hear argument on that ground. Applicable principles and rules of court. The principles of law to be applied, in a case of this kind, are not really in doubt: 1. The Court has a full power, under its inherent power and under Part 20 SCR, to grant an amendment to its process in order to permit a new ground of appeal to be raised if that is the proper and lawfulorder that should be made on the application; 2. Where there is an application to amend which raises the point which has not been reserved at a trial before a jury, a very real question arises as to whether the amendment should be provided where the result of so providing will be to undermine the principle of the finality of litigation. It has been said many times that new trials are a great mischief. They are a burden on the parties and on the administration of justice. See Bromley v Tomkin & Others (1987) 11 NSWLR 211 (CA) , 238. See also Eggins v Brooms Head Bowling & Recreational Club Limited (1986) 5 NSWLR 521 (CA) , 5245. 3. The principle which would activate the relief towards which the additional ground of appeals are directed is that which is mentioned in part 51 rule 16 of the Rules of this Court. That rule provides, relevantly, that the Court of Appeal should not order a new trial on the ground of misdirection by the trial judge unless it appears to the Court of Appeal that some 'substantial wrong or miscarriage' has been thereby occasioned. Passage in the judge's charge to the jury objected to. When the matter was tried the essential issue which was left to the jury without objection by the trial judge in the second trial, Barr AJ, relevant to the proposed additional grounds of appeal was that which was put to the jury in the following passage: I do not propose to take you in detail through Mr Bass" evidence. You heard it only yesterday and you heard the arguments based on it yesterday as well, and I also said something about this to you earlier in the summing up in dealing with wage loss. UBYRON v NEWELLS CREEK SAWMILLING COMPANY PTY LIMITED [No 1] (Kirby P) 3 To a very large extent the decision you will come to in the major issues in the case will depend upon the impression the plaintiff has made upon you. His counsel put to you that he is an honest person making an honest claim and doing his best. Mr Shore puts to you that the plaintiff is exaggerating the effect of his injury. The defendant does not 5 Suggest to you that the plaintiff did not suffer injury in June1985 or that fusion was not made necessary in due course by that injury. What the defendant does say is that the Operation was not unsuccessful, despite Dr Isaacs" opinion to that effect, but put the plaintiff in a reasonably good condition and able, after a period of convalescence, to do light duties. In continuing to claim an inability to do any work at all the plaintiff is 10 exaggerating. That is what the defendant says. The argument that has been put to the Court for the appellant is that every person who comes to the courts of this state is entitled to have a trial according to law. The law, so it is said, is that which has been laid down by the High Court of Australia in Malec v J C Hutton Pty Ltd and Purkess v Crittenden. Because no 15 direction was given to the jury along the lines of Malec and Purkess the appellant has been deprived of a trial according to law. Accordingly, the Court should now permit the matter to be raised, although not reserved at the hearing. In support of the argument that this was the proper course the Court was taken to a number of authorities including Burchett v Kane [1980] 2 NSWLR 266 (CA) 20 and a decision of the High Court of Australia in The Municipal Council of Willoughby v Halstead (1916) 22-CLR 352. Whatever may have been the position at common law this Court is bound now to exercise its discretionary power to provide amendment of grounds of appeal by reference to the Rules of Court which govern the conduct of an appeal such as 25 the present. Those Rules direct our attention to whether or not it appears that a substantial wrong or miscarriage has been occasioned. The Rule recognises that slips are almost inevitable in human endeavour. To attack the serious step of an order for retrial, they must be substantial or they must occasion an apparent injustice. 30 Reasons for refusing the amendments. Increasingly in recent times, in considering applications for procedural orders, appellate courts have taken into account the consequences of such orders, for the efficient administration of justice. Nowadays courts consider fairness to the parties and they include other parties who are awaiting a hearing in the court. By 35 procedural orders courts will not encourage procedures under which parties raisefor the first time in an appeal matters which were not raised at trial but which involve points quite different from those involved in the trial and presented for decision there. In effect, there is now a strong reluctance to permit entirely new issues to be raised which were not litigated at trial. If this were to be permitted 40 it would involve the first litigation of matters in appeal courts rather than at trial — in this case in a trial before a jury. There is an additional reason in the present case why, in my view, the amendment should not be permitted. Even in the case of points of law which were not litigated at trial, it is a common place that parties will not be permitted 45 to raise them on appeal if to do so would involve procedural unfairness to the opponent. See Coulton & Ors v Holcombe & Ors (1986) 162 CLR 1 at 7. In this case there were, as has been argued for the respondent, quite possibly tactical reasons why the issue was left to the jury in the way in which it was at the second trial. Yet, however that may be, there are facts or questions which the 50 respondent may have wished to raise if the points now pressed in the additional grounds of appeal had been raised at the trial. It would involve procedural 4 UNREPORTED JUDGMENTS unfairness to the respondent to permit the case to be so substantially changed in the appeal. Such a change should not be permitted. It should not be permitted where the first time that the change has been signalled is on the afternoon before the hearing of the appeal when the submissions for the appellant were first received by the respondent and by the Court. Order. For these reasons I would not permit the appellant to raise now for the first time the two additional grounds of appeal. The appellant should be heard on the seventh ground of appeal, which he presses, being the sole remaining ground that it raised in the appeal which was filed after the verdict and judgment. Gleeson CJ. I agree. In the course of his summing up to the jury the trial judge said: To a very large extent the decision you will come to in the major issues in the case will depend upon the impression the plaintiff has made upon you.""Senior counsel for the appellant acknowledges that if this appeal is successful there would have to be a third trial. No question arises in the present circumstances of this court reassessing the damages awarded to the appellant. In the result the appellant is seeking a third trial on the basis of arguments which were not raised at the second trial, which, if they had been raised, might well have required evidence additional to that which was adduced at the second trial and which might well have been left without being raised for tactical reasons. I agree with the orders proposed by the President. Cole JA. I agree with the views expressed by the President and with the remarks of each of the Chief Justice and the President. Gleeson CJ. The application to enlarge the grounds of appeal is refused. Application to enlarge the grounds of appeal refused. Counsel for the appellant: J E Maconachie QC Solicitors for the appellant: Firths Counsel for the respondent: H G Shore Solicitors for the respondent: Hunt and Hunt