PEARSON v THE DISTRICT COURT OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SHELLER JA 20 May 1996 [1996] NSWCA 424 Sheller JA. This is an application made by notice of motion filed on 16 May 1996 whereby the first and second claimants seek leave to file supplementary written submissions. The application has been supported by an affidavit of their solicitor, Mr Benson, sworn on 16 May 1996, which is taken as read. Mr Benson has submitted that in the course of submissions Mr Healey, who appeared before this Court for the claimants, abandoned any reliance upon error on the face of the record. Mr Benson said that he was concerned that any such abandonment failed to take account of the possibility that the decision ofthe Court of Criminal Appeal handed down on 1 December 1995 and the orders of that Court may not be treated as part of the record. In particular Mr Benson drew my attention to a passage in the President's judgment where his Honour said that the trial Judge, Judge Hosking QC, was perfectly entitled to follow the decision so long as he appreciated that he was not required to do so, and so long as he appreciated the different evidentiary line in which the Federal Court judges reached their conclusions. Mr Benson submitted that if Judge Hosking had acted on this direction in the President's judgment, he must have concluded that there was no evidence on the basis which he could have come to the conclusion that he did. As I indicated to the parties, I have had the opportunity to read the transcript of the argument of this Court of 3 May 1996. I have no particular recollection that Mr Healey abandoned the submission that there was error on the face of the record. My recollection is that argument was put about the effect of the Court of Criminal Appeal's decision upon Judge Hosking's approach to the case. In my opinion, Mr Healey had a full opportunity to put all arguments he wished to put on behalf of the claimant and indeed, as one would expect, made full use of that opportunity. I am not persuaded that it is now appropriate to allow the claimants to put further submissions to the Court. It seems to me that the ground wascompletely covered in open Court on 3 May 1996. For those reasons I propose to refuse this application. Mr Roberts has very fairly drawn my attention to pages 29A, 29B and 30 of the transcript of argument of 3 May 1996. In the course of an interchange between Powell JA and Mr Healey, Powell JA said: Now, here there is no question of jurisdictional error, no question of error on the face of the law — solely denial of procedural fairness, and it really comes down to this, his Honour having a discretion, exercised it upon grounds which you say demonstrate an error of principle. Is that the sole basis upon which you say there was a denial of procedural fairness? So that if we were to conclude there was no evidence in your case your case falls to the ground. Mr Healey responded: 'I think that would be so.' To which Powell JA said: 'That puts it fairly.' 2 UNREPORTED JUDGMENTS Having had my attention drawn to that passage, I do not read that as any formal abandonment of the point that there was an error on the face of the record. It seems to me that what then emerged was something that emerged in the course of the argument that had taken place up to that point of time. However, the transcript of what has taken place today and what I have to say about it will be available to the other members of the Court who sat in this matter, and it can be noted that that point was not abandoned by the claimant. Mr Roberts has made an application that the claimant should be ordered to pay the opponent's costs of this application on an indemnity basis. In my opinion,the best order for costs is that the costs of this application be costs in the appeal. Orders accordingly.