WILLIAMS v McFARLANE [1996] NSWCA 559

WILLIAMS v McFARLANE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and POWELL, JJA 6 November 1995, 5 February 1996

[1996] NSWCA 559

APPEAL AND NEW TRIAL- application for leave to raise fresh ground of appeal- if leave granted would allow appellant to raise case not relied on at trial, and contradicting the case raised by the appellant at trial — whether leave should be granted — whether demanded by requirements of future to prevent miscarriage — held: Not — Plaintiff held to case at trial — raising alternative case for recovery on appeal, although disclaimed at trial, impermissible — appeal dismissed.

APPEAL and NEW TRIAL — application for leave to raise fresh ground of appeal — if leave granted it would allow the appellant to raise a case not relied on at trial and contradicting the case presented by the appellant at trial — whether leave should be granted — whether leave required in exceptional circumstances to prevent miscarriage of justice — whether forbidden by considerations of finality of litigation and due process to the respondent — principles governing raising of new issues on appeal disclaimed at trial -

HELD: (Powell JA, Clarke JA concurring; Kirby P dissenting): Leave to raise fresh ground of appeal should be refused - as no other ground going to liability was pursued, verdict at trial in favour of respondent affirmed and appeal dismissed.

Mummery v Irvings (1956) 96 CLR 99; Maloney v Commissioner for Railways (NSW) (1928) 52 ALJR 292 (HC) distinguished; Leotta v Public Transport Commission (1976) 50 ALJR 666 (HC); Suttor v Gundowda Pty Ltd (1950) blank CLR 81; Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1; and Water Board v Moustakas (1988) 180 CLR 491 applied; Chouman v Margoules, Court of Appeal (NSW), unreported, 24 June 1993 discussed by Kirby P.