Able Door Services Pty Ltd v Lowe - [2005] NSWCA 483

CITATION:
ABLE DOOR SERVICES Pty Ltd v LOWE [2005] NSWCA 483

HEARING DATE(S):
27/05/2005

JUDGMENT DATE:

27 May 2005

JUDGMENT OF:
Bryson JA at 1; Mason P at 25; Rothman J at 27

DECISION:
Appeal allowed - see para [24]

CATCHWORDS:
COURTS and JUDGES - conduct of trial - limiting issues on new trial - trial Judge introduced important new issue when judgment was reserved, amended application and awarded remedies on basis not alleged at hearing and not the subject of evidence. Decision set aside and order for re-hearing before another Judge - consideration of principles on which Court of Appeal limits issues on new trial.

LEGISLATION CITED:
Suitors’ Fund Act 1951 s.6(1) & (2)
Workers Compensation Act 1987 (NSW) ss.40, 60, 66 & 67

CASES CITED:
de Beever v Katsirilos [1971] VR 401
Hutchinson v Piper (1812) 4 Taunton 555 at 557, 128ER 447
Pateman v Higgin (1957) 97 CLR 521
Smith v The NSW Bar Association (1992) 176 CLR 256
Trustees of the Roman Catholic Church v Hogan (2001) 53 NSWLR 343

PARTIES:
Able Door Services P/L - Appellant
David Lowe - Respondent

FILE NUMBER(S):
CA 40627/04

COUNSEL:
G.E. Watson SC & M. Batten - Appellant
Ms E. Walsh - Respondent

SOLICITORS:
Stephen Joseph Lee, Vandervords - Appellant
Deborah Ens, Kells The Lawyers - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
11451/02

LOWER COURT JUDICIAL OFFICER:
Walker DCJ

40627/04

MASON P
BRYSON JA
ROTHMAN J
FRIDAY 27 MAY 2005

ABLE DOOR SERVICES PTY LIMITED v DAVID LOWE

Judgment

1 BRYSON JA: This is an appeal by the employer from the decision and orders of his Honour Judge Walker QC of 6 July 2004.

2 His Honour made orders and an award under the Workers Compensation Act 1987 on the Amended Application for Determination by the worker Mr Lowe, who is now the respondent.

3 His Honour further amended the Application for Determination and the Answer, after judgment was reserved and without notice to the parties: see the judgment at paragraph 9, red book, 21.

4 The employer claims, and the worker concedes, that the judgment and certain of the orders should be set aside. In my view the Court of Appeal should act on the concession. Judge Walker’s decision is to be set aside because it was not reached by fair procedures. The decision was reached by introducing an important new issue after the completion of the hearing and the addresses when judgment was reserved. The Judge amended the application and awarded remedies on the basis of relations between the worker’s psychotic illness and his work injury which the worker did not allege or rely on at the hearing, and to which evidence at the hearing was not directed. The employer had no opportunity to deal with the issue.

5 The employer asks that the Court of Appeal should make directions limiting the conduct of the proceedings in the District Court when remitted. The first such direction is that the matter to be remitted should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Able Door Services Pty Ltd v Lowe

Details

AGLC: Able Door Services Pty Ltd v Lowe [2005] NSWCA 483
Case: [2005] NSWCA 483
Decision Date: 27 May 2005

CaseChat Overview and Summary

Able Door Services Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of a trial judge. The dispute concerned remedies awarded by the trial judge on a basis not pleaded by the respondent, Mr Lowe, nor the subject of evidence presented at the hearing.

The primary legal issue before the Court of Appeal was whether the trial judge had erred by introducing a new issue after judgment had been reserved, amending the respondent's application, and awarding remedies on a basis that had not been litigated by the parties. The Court was also required to consider the principles governing the limitation of issues on a new trial.

The Court of Appeal found that the trial judge had impermissibly introduced a new basis for relief after the close of evidence and submissions, without affording the appellant an opportunity to address it or present evidence in response. This fundamentally altered the case that the appellant had defended. The Court reiterated the principle that parties are generally bound by their pleadings and that a court should not grant relief on a basis not sought or canvassed during the trial.

The appeal was allowed, the decision of the trial judge was set aside, and a re-hearing of the matter before another judge was ordered.

Orders

Orders of the court

Appeal allowed - see para [24]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	ABLE DOOR SERVICES Pty Ltd v LOWE [2005] NSWCA 483
HEARING DATE(S):	27/05/2005
JUDGMENT DATE:	27 May 2005
JUDGMENT OF:	Bryson JA at 1; Mason P at 25; Rothman J at 27
DECISION:	Appeal allowed - see para [24]

CATCHWORDS:	COURTS and JUDGES - conduct of trial - limiting issues on new trial - trial Judge introduced important new issue when judgment was reserved, amended application and awarded remedies on basis not alleged at hearing and not the subject of evidence. Decision set aside and order for re-hearing before another Judge - consideration of principles on which Court of Appeal limits issues on new trial.
LEGISLATION CITED:	Suitors’ Fund Act 1951 s.6(1) & (2) Workers Compensation Act 1987 (NSW) ss.40, 60, 66 & 67
CASES CITED:	de Beever v Katsirilos [1971] VR 401 Hutchinson v Piper (1812) 4 Taunton 555 at 557, 128ER 447 Pateman v Higgin (1957) 97 CLR 521 Smith v The NSW Bar Association (1992) 176 CLR 256 Trustees of the Roman Catholic Church v Hogan (2001) 53 NSWLR 343
PARTIES:	Able Door Services P/L - Appellant David Lowe - Respondent
FILE NUMBER(S):	CA 40627/04
COUNSEL:	G.E. Watson SC & M. Batten - Appellant Ms E. Walsh - Respondent
SOLICITORS:	Stephen Joseph Lee, Vandervords - Appellant Deborah Ens, Kells The Lawyers - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	11451/02
LOWER COURT JUDICIAL OFFICER:	Walker DCJ