NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v WEBSTER [1996] NSWCA 395

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v WEBSTER

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, ABADEE AJ and SANTOW AJ 14 November 1996

[1996] NSWCA 395

Clarke JA. (On leave to amend Grounds of Appeal see page 10 of transcript).

During the course of argument, counsel for the appellant has sought to raise an additional ground of appeal which, because of the timing of the application, is not phrased as felicitously as counsel might otherwise phrase it. The ground of appeal seems to have been foreshadowed in the written submissions for the appellant and is phrased, by counsel for the appellant, as follows: It was not open to his Honour to find for the plaintiff on the basis that he did because that case was not pleaded by the plaintiff and that case was never presented by the plaintiff but was in fact disavowed by her in her evidence.

During debate on the application the Court sought guidance as to whether there could be found any support for the proposition that the case on which his Honour relied in finding for the plaintiff — and by 'case' I mean the nature of the case — had in fact been the subject of the litigation. Counsel are bound to say that there was nothing in the appeal book which indicated whether the plaintiff had sought to rely on that point.

The fact that the Judge made his finding would tend to suggest that the point had been run, but of course that is not conclusive. In addition, the first Notice of Appeal as filed by the appellant, raised a large number of grounds of appeal challenging his Honour's approach to the fact-finding process, but in none of those grounds did the appellant suggest that his Honour had decided the case on the basis which had not been the subject of discussion before him.

Counsel for the respondent has opposed the application. He has pointed out that the fourth particular of negligence asserted that the defendant had driven without any, or any proper control and he also argued that, as this ground of appeal had never been suggested before today, or perhaps before the written submission, the respondent was in no position to meet the contention that the point had not been run at the trial.