New South Wales Supreme Court CITATION : Maher v Bayview Golf Club (No. 2) [2004] NSWSC 611 HEARING DATE(S) : 7 July 2004 JUDGMENT DATE : 7 July 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : New issue not permitted to be raised CATCHWORDS : PROCEDURE - courts and judges generally - losing party seeks to raise issue not previously litigated on argument about form of orders - whether slip rule can be used to justify such a course - costs (no question of principle) - stay pending appeal (no question of principle) L Shaddock & Associates Proprietary Limited v The Council of the City of Parramatta (No 2) (1982) 151 CLR 590 CASES CITED : Saffron v Societe Miniere Cafrika (1958) 100 CLR 231 Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300 PARTIES : Reginald Bede Maher - Plaintiff Bayview Golf Club Limited - Defendant FILE NUMBER(S) : SC 4626/02 COUNSEL : N Francey - Plaintiff D Roberts - Defendant SOLICITORS : F J Smith & Company - Plaintiff Edgington & Alfonso - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J WEDNESDAY 7 JULY 2004 4626/02 REGINALD BEDE MAHER v BAYVIEW GOLF CLUB LIMITED (No. 2) JUDGMENT – Ex Tempore (Revised 7 July 2004) 1 HIS HONOUR: I delivered reasons for judgment in this matter on 4 June 2004. Those reasons for judgment included, at paragraph [136], a set of draft orders that were ones that seemed appropriate to give effect to the conclusion reached in the judgment. However, those orders had been drafted without input from counsel as to their precise terms. I therefore gave counsel the opportunity to make further submissions concerning the proposed orders. 2 That opportunity has been availed of today. Both parties took my draft orders as the starting point for their submissions. Counsel for Mr Maher submitted that my draft orders should be made in their entirety. Counsel for the Golf Club proposed that there should be two alterations to those draft orders. 3 The first alteration proposed by counsel for the Golf Club arose in the first draft order, where there was a reference to a plan of Paul Keen & Co dated 5 October 2002. The contention of the defendant was that that reference should be replaced by a reference to a plan proposed by Messrs Byrne & Associates Pty Ltd Consulting Surveyors and Engineers dated 29 June 2004. 4 The plan of Paul Keen & Co dated 5 October 2002 is one which shows an easement which is 6.08 metres wide at its northernmost extent. The plan of Byrne & Associates Pty Ltd dated 28 June 2004 is one which shows an easement which is 3 metres wide at its northernmost extent, and which gradually widens as one goes south to the place where the easement takes an obtuse-angled turn. 5 One basis on which the Golf Club submits that the easement should be in the form of the Byrne & Associates plan is that there was clear evidence at the trial that the easement has always been one which goes to, at its northernmost end, to a gap in a stone fence, and that that gap has always been 3 metres wide. I accept that that is so. The Golf Club also draws my attention to paragraph [109] of the reasons for judgment, which states: "The parties have conducted the case on the basis that if a right to only one-way access had been established the site of the easement was that shown in the plan enclosed with the letter of the solicitors for the Club dated 11 November 2002 (para [23] above), while if two-way access had been established the site of the easement was that identified as Proposed Right of Carriageway Variable Width in the plan of Paul Keen & Company dated 5 October 2002". 6 The Golf Club submits that paragraph [109] was an error. It submitted that the plaintiff had run its case on the basis that if there was a two-way right of way the right of way would be in accordance with Mr Keen's plan, that the defendant had run its case on the basis that if only one-way access was established the site of the easement was as shown in a different plan that was in existence in November 2002, but that there had never been any acceptance by the Golf Club that if two-way access had been established, the appropriate plan was the plan of Paul Keen & Co. 7 Let me say quite clearly that, having considered the matter again, there was no unintended statement in paragraph [109] of my earlier reasons for judgment. A case gets conducted, in adversary litigation, within a framework of not only what the parties say explicitly, but also the assumptions that they adopt in the conduct of the case. The Court in deciding a case is deciding the issues which are raised by the parties for decision. At the hearing, the defendant raised no issue that, if the plaintiff had, in broad terms, established an entitlement to two-way use of the easement, then the precise delineation of that easement should be anything other than that set out in the plan of Paul Keen & Co dated 5 October 2002. 8 In Saffron v Societe Miniere Cafrika (1958) 100 CLR 231 at 240, the High Court, comprising Sir Owen Dixon and McTiernan and Menzies JJ, gave a joint judgment concerning an appeal from a commercial cause. Their Honours had been invited to consider an argument which had not been put at the trial. They said: "… To all this there are two answers. The first is that having regard to the way in which the trial was conducted this argument is not open upon appeal; and the second is that in any case it is unsound. The parties at the trial confined themselves to issues which assumed both sale and delivery and left for determination the obligation of the buyer to pay the seller, having regard to the terms of the contract. It would be wrong and would destroy the value of commercial causes procedure if a court upon appeal were to decide a case by reference to matters which were not raised as issues upon trial." 9 Similarly, once a court at first instance has given a judgment on the issues which were raised by the parties at the trial, it would be wrong, and destructive of the Court's procedures for refinement and clarification of issues prior to trial, if parties were then able to raise fresh issues. 10 In the present case, Mr Francey, for the plaintiff, points out that if any such issue had been raised at the trial, then there would have been the potential to call evidence which focused on the precise extent of user which there was, in the portion of the right of way between the gap in the fence, and the obtuse angle in the course of the right of way. As the issue was not raised, the evidence was not called. The defendant, by its conduct of the trial, has let the issue it now seeks to raise go by default. 11 My attention was drawn to cases concerning the use of the slip rule. I was reminded of the decision in L Shaddock & Associates Proprietary Limited v The Council of the City of Parramatta (No 2) (1982) 151 CLR 590, where the High Court permitted a question to be raised concerning interest on a judgment, which had been overlooked by counsel arguing the case in the High Court. To similar effect is the decision in Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300. The implicit suggestion is that it must have been by oversight that counsel for the Golf Club at the trial failed to raise this matter. There is no evidence to that effect, and I am not prepared to assume it is so. My attention was also drawn to the decision in Expo Aluminium (NSW) Pty Limited v Pateman Pty Ltd (No. 2) (unreported, NSWCA, Kirby P, Samuels and Meagher JJA, 29 April 1991,) where Meagher JA permitted the slip rule to be used to correct an arithmetical error in a judgment. None of these cases are ones which bear upon the factual situation which I have just outlined, where a party does not litigate a factual issue at a trial. 12 Indeed, the newness of this point is demonstrated by the fact that the plan which the defendant propounds is one dated 28 June 2004, well after my reasons for judgment were delivered. 13 For these reasons, I decline to alter the draft orders, so far as the reference to the plan of Paul Keen & Co dated 5 October 2002 is concerned. 14 The next matter concerning the draft orders which was argued related to the second draft order, where I declared that the benefit of the right of way would enure for the benefit of any lots into which lot one might be subdivided. The submission was put on behalf of the defendant that this was unnecessary, as the law to that effect was quite clear. The law did not seem so clear to the defendant when the trial was being run. An issue was raised concerning it, and I decided it. It is appropriate to make the declaration to decide the issue which was presented for trial. I do not accept that making the declaration might cause confusion if the easement were, in the future, to be abandoned. 15 A third matter which was argued before me concerned costs. The defendant submitted that the plaintiff had taken quite some time, after the case was first started, to clarify the relief that was actually sought. The defendant also pointed out that the defendant had made various offers to negotiate, and had at all times been willing to grant an easement to the plaintiff. 16 The fact that the defendant had at all times been willing to grant an easement to the plaintiff was expressly recognised in the first two paragraphs of my judgment. Those paragraphs pointed out that the issue in the case was one which concerned the extent of the right of way to which Mr Maher was entitled by prescription - it was part of the common background of assumption against which the parties ran the case that Mr Maher had an entitlement, of some sort, to an easement by prescription. The issues which were presented for trial concerned the extent of the easement, in those respects which I identified in paragraph 2 of the reasons for judgment. 17 The plaintiff won on all the issues he raised, save for a matter relating to the extent to which commercial vehicles were able to use the easement. The issue concerning the extent to which, and circumstances in which, commercial vehicles could use the easement was one which was more than a matter of detail at the trial. 18 In my view, the starting point for an order concerning costs is that costs should follow the event. I would not regard the delay that there was in the plaintiff formulating the precise relief which he sought as one which was sufficiently serious to make the rule that costs should follow the event inappropriate. However, it seems to me that the issue concerning commercial use was a separate issue which was litigated, and on which the plaintiff lost, in the respect I have mentioned. 19 In all the circumstances, the appropriate order is that the defendant should pay 90 percent of the plaintiff's costs. 20 I make orders in accordance with short minutes of order which I initial and date today's date and shall place with the papers. 21 Counsel for the defendant requested that I make a stay of orders. The basis for that is that a holding appeal has been lodged, and there is, as things seem at the moment, a fair likelihood that that holding appeal will be pressed on with. 22 It is not appropriate to grant a stay of paragraphs 1 and 2 of the orders, because they are declarations. 23 Paragraph 3 of the orders is an injunction restraining the defendant from interfering with the exercise of right of way the subject of the foregoing declarations. That order should remain on foot, unless and until the Court of Appeal decides that my decision is wrong in a way which affects that order. 24 Paragraph 4 of the order is a mandatory order, requiring the defendant to provide the plaintiff with a key to enable him to use the right of way. That order likewise should remain on foot, unless and until the Court of Appeal decides that my reasons for judgment are wrong in a way which makes that order inappropriate. 25 Paragraph 5 of the orders is an order that the defendant take no steps to cause the qualified title to become unqualified prior to registration of the right of way. Again, that order ought remain in force, unless and until the Court of Appeal decides that my judgment is wrong in a way which affects that order. 26 The 6th order, that the defendant do all things necessary to execute all documents required to enable the plaintiff to secure registration of the right of way, is an order which might possibility be stayed, pending an appeal. There is some doubt as to whether the defendant actually needs to execute any documents to enable the plaintiff to secure registration of the right of way, but, if any such action on the part of the defendant is needed, it would be appropriate for it not to be required to be taken until the question of whether the appeal will proceed has been determined. 27 The plaintiff offers an undertaking to the Court not to register the right of way for 28 days. That undertaking, if accepted, will adequately preserve the subject matter of the appeal. The 28 days period will enable the defendant to refine its advice about what it wants to do concerning the appeal, and (if it is not agreed to) make application for an injunction pending determination of the appeal, in terms of the undertaking, and possibly an extension of a stay of order 6. 28 I therefore order that order 6 which I have just made be stayed for a period of 28 days. I note the undertaking of the plaintiff to the Court not to register the right of way for 28 days. These orders maybe entered forthwith. ********** Last Modified: 07/12/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.