FAI WORKERS COMPENSATION (NSW) LTD v MMI WORKERS COMPENSATION (NSW) LTD and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and COLE JJA 23 May 1996, 23 May 1996 [1996] NSWCA 180 Priestley JA The court is not disposed to grant leave to amend the notice of appeal. The case is one where there was one ground of appeal in the Notice of Appeal directed to what was at the time when the case was heard at first instance and the appeal was filed, a live issue. That issue subsequently was resolved by decisions in this court having the effect that the ground of appeal was bound to fail. In those circumstances, the appellant has sought the court's leave to amend the Notice of Appeal by adding two further grounds quite distinct from what which was in the original Notice of Appeal. The appellant was quite frank in informing the court that the two matters now sought to be argued here were never the subject of argument in the court below. It is not at all clear to the court that had those matters been raised what took place below may not have been significantly different. It was submitted for the appellant that nothing would have been different but that submission seems to me to have an element of conjecture in it. The court, as events have turned out, does not have the benefit of the consideration of the court below on the matters. The court will, on occasion, allow new grounds of appeal to be raised when there had been no argument concerning them below. Those cases are usually rather special and always involve a situation where quite plainly the question raised is one of law only which could not have been affected by anything that may have happened below had the point then been raised. This court does not usually cast itself in the role of a court at first instance. It seeks to preserve its appellate role. Of course, there is a discretion to be exercised judicially in deciding whether we would grant the amendment to the Notice of Appeal, as requested. The court is of the view that discretion in this case, for reasons already indicated, should be exercised by refusing the application. The result is, since the only ground in the Notice of Appeal is not being pursued, that the appeal must be dismissed with costs, and the court orders accordingly. Counsel for the appellant: DG Nock SC Solicitors for the appellant: Hunt and Hunt Counsel for the respondent: JD Hislop QC Solicitors for the respondent: Sparke Helmore, Newcastle