Bremner v Sinclair (No 2)

[1999] NSWCA 407

CITATION:	BREMNER & ANOR v SINCLAIR & ORS (No 2) [1999] NSWCA 407
FILE NUMBER(S):	CA 40615/95
HEARING DATE(S):	18 May 1999
JUDGMENT DATE:	29 October 1999
PARTIES :	BRIAN SEFTON BREMNER & ANOR v SONDRA JEAN SINCLAIR & ORS (NO 2)
JUDGMENT OF:	Mason P at 1; Meagher JA at 66; Powell JA at 67

COUNSEL:	A: B Walker SC 1R: B Rayment QC/D Kell 2R: J E Armfield submitting
SOLICITORS:	A: Corrs Chambers Westgarth 1R: John M Fitzgerald & Associates 2R: Gordon Cavanagh submitting
CATCHWORDS:	APPEAL - application to set aside earlier orders of the Court of Appeal - appeal by way of rehearing - alternative case presented - whether open to Court of Appeal to entertain a fresh point having regard to the way the case was conducted at trial - whether the capacity to raise an alternative point should be precluded where raising the issue below would have meant evidence could have been given which would have prevented the point from succeeding - scope of duty of appellate court to address new questions of law arising upon facts either admitted or proved beyond controversy
ACTS CITED:	Supreme Court Act s75A(10)
CASES CITED:	Bremner & Anor v Sinclair & Ors (Bremner No 1), Court of Appeal, unreported November 1998, Suttor v Gundowda Pty Limited (1950) 81 CLR 418, University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 60 ALR 68, Coulton v Holcombe (1986) 162 CLR 1, Water Board v Moustakas (1988) 180 CLR 491, Gipp v The Queen (1998) 194 CLR 106, Ah Yick v Lehmert (1905) 2 CLR 593, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, Castanho v Brown & Root (UK) Ltd [1981] AC 557, Rogers v The Queen (1994) 181 CLR 251, Council of the Municipality of Woollahra v Sved (24 July 1998, Court of Appeal, unreported), Multicon Engineering Pty Ltd v Federal Airports Corporation (15 October 1997, Court of Appeal, unreported), State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liquidation) (1999) 160 ALR 588, Warren v Coombes (1979) 142 CLR 531, Hanson v Wearmouth Coal Co [1939] 3 All ER 47, Castellan v Electric Power Transmission Pty Ltd (1967) 68 SR (NSW) 159, Helicopter Sales (Australia) Pty Ltd (1974) 48 ALJR 390, Imperial Chemical Industries of Australia Limited v Murphy (1973) 47 ALJR 122, Berkeley Challenge Pty Limited v Potbury (Court of Appeal, 18 December 1997, unreported)
DECISION:	Parties to bring in Short Minutes within 14 days

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40615/95
ED 2980/91

MASON P
MEAGHER JA
POWELL JA

Friday 29 October 1999

BRIAN SEFTON BREMNER & ANOR v SONDRA JEAN SINCLAIR & ORS (No 2)
JUDGMENT

1    MASON P: Mr and Mrs Sinclair (“the vendors”) brought proceedings in the Equity Division against Mr and Mrs Hudson (as first defendants), Mr Bremner (as second defendant) and the corporate proprietor of Elders Real Estate at Armidale (as third defendant). The second defendant was employed by the third. Their interests were the same in the proceedings, and I shall refer to them as “the auctioneers”. 2    The vendors retained the auctioneers to sell their property by auction. It was knocked down to Mr and Mrs Hudson for $960,000.00. The Contract for Sale was completed by adding that figure and it was signed on behalf of Mr and Mrs Hudson as purchasers by Mr Bremner. 3    The 10% deposit was not paid at the auction or afterwards, despite promises emanating from Mr and Mrs Hudson. It remained unpaid on 5 April 1991 when the vendors terminated the contract. 4    In the Equity proceedings the vendors sued the Hudsons under the contract for the unpaid deposit. Alternatively, they sued the auctioneers for damages for breach of warranty of authority. The case against Mr and Mrs Hudson was effectively abandoned during final addresses, and the proceedings against them were dismissed. The vendors were however successful in their alternative claim against the auctioneers. 5    The detailed facts and the reasoning upon which Windeyer J proceeded are recounted in my judgment in Bremner & Anor v Sinclair & Ors Court of Appeal, unreported 3 November 1998 (Bremner No 1). 6    The auction was conducted by Mr Bremner and the bidding referable to Mr and Mrs Hudson was conveyed directly to Mr Bremner by Mr Upjohn, a fellow employee of Elders Real Estate, Armidale. Mr Upjohn was in telephone communication with Mrs Murphy who was the secretary of Mr McAllister, the man who had been authorised to bid at the auction on behalf of the Hudsons. Mrs Murphy’s bid of $960,000 was the highest bid. It was also the reserve price. Accordingly, the property was knocked down to the Hudsons, whom Mrs Murphy purported to represent. Mr Bremner then signed the contract as agent for the Hudsons in reliance upon their written authority for him to do so if they were the successful bidders. 7    Mrs Murphy was found to lack authority to make the winning bid because Mr McAllister, the bidding agent appointed by the Hudsons, had delegated his function to Mrs Murphy without the express or implied authority of his principals and because it could not be said that she had acted as his purely ministerial agent or “mouthpiece”. The submission that the Court should infer from the objective facts that the winning bid was directly instructed by Mr McAllister was rejected at trial. In Bremner No 1 this Court held unanimously that Windeyer J had been correct to do so. We also held that his Honour had correctly rejected the auctioneers’ alternative submission that Mrs Murphy’s conduct had been ratified by the Hudsons after the auction. 8    If matters had stood thus, there would have been unanimity in this Court and in the Court below that the vendors had established against the auctioneers that Mr Bremner lacked authority to sign the contract on behalf of Mr and Mrs Hudson. The auctioneers’ appeal would have failed. 9    Nevertheless, the auctioneers’ appeal was upheld because the majority of the Court (Mason P and Meagher JA) decided that the facts found at trial established Mr Bremner’s actual authority on an alternative basis. I shall describe this as the alternative basis of actual authority. The reasoning is set out at pages 15-18 of my judgment, with which Meagher JA agreed. Powell JA expressed no view on the substance of the point. But he disagreed on the basis that this argument had not been raised in the appeal. His Honour was also of the view that, even if the alternative argument as to Mr Bremner’s actual authority had been raised on appeal, it was not open to this Court to entertain it in the light of the principles established in Suttor v Gundowda Pty Limited (1950) 81 CLR 418 at 438, University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483, 60 ALR 68 at 71, Coulton v Holcombe (1986) 162 CLR 1 at 7-8 and Water Board v Moustakas (1988) 180 CLR 491 at 497. 10 As I indicated in my judgment (at pp18-19), I had considered anxiously whether these principles precluded reliance upon the alternative basis for actual authority. I concluded that I was unable to see any different way in which the case would have been fought below had it been developed there in the way that had led me to reach a different conclusion to that of the trial judge. In reaching this view I was influenced, in part, by the fact that no objection had been raised to the alternative argument during oral submissions in the appeal. 11 In accordance with the view of the majority, the auctioneers’ appeal was allowed. The judgment and orders made against them were set aside and replaced with orders giving them judgment against the plaintiffs (the vendors). Consequential costs orders were made. 12 By their notice of appeal, the auctioneers had also joined as respondents Mr and Mrs Hudson. (Mrs Hudson had in the meantime remarried and changed her name to Mrs Clissold. I shall continue to refer to her by the name she used when the events in question unfolded in 1991.) The first two orders sought in the Notice of Appeal were:

(1) a verdict for the auctioneers on the vendors’ claim; and

(2) a verdict for the vendors against the Hudsons in the amount of $96,000 plus interest.

13    At the commencement of the hearing in Bremner No 1 senior counsel for the auctioneers was asked whether he could possibly support order 2 in the notice of appeal bearing in mind that Windeyer J had said that the plaintiffs had effectively abandoned their claim against the Hudsons. Mr Walker SC conceded that he could not support order 2 (Tr 28.11.97 p1). 14    The parties had previously exchanged written submissions. These included submissions prepared by counsel briefed respectively for Mr and Mrs Hudson. They supported the vendors, arguing that the Hudsons relied upon Mr McAllister, not his secretary, and that there had been no ratification. On the hearing of the appeal in Bremner No 1, submissions were made by counsel for the auctioneers (Mr Walker SC) and counsel for the vendors. Counsel for Mr Hudson (Mr Smark) commenced his submissions supporting the position advanced on behalf of the vendors (Tr 28.11.97 p16). An enquiry as to the reason for his presence was then raised by Powell JA who drew attention to the absence of a defensive appeal by the vendors. Counsel properly admitted that he had overlooked this. The lunch adjournment then intervened. 15    After the adjournment, counsel for Mr Hudson ceased his submissions on the substantive point. He pressed his clients’ entitlement to costs based upon joinder in the appeal and the (late) abandonment of the claim for order 2 sought in the notice of appeal. He sought to withdraw (p18). The transcript does not reveal whether he did in fact withdraw. My recollection is imperfect, but I think he remained. (The transcript continued for only eleven more pages.) 16    Counsel for Mrs Hudson (Mr Armfield) certainly did not withdraw. He put full submissions as to unauthorised sub-delegation to Mrs Murphy and as to absence of ratification (pp18-23). Nevertheless, for good measure he concluded with reliance upon the abandonment (at trial) of the claim against the Hudsons and the absence of a cross-appeal. Costs were sought, regardless of the outcome of the appeal. 17    The only orders made in Bremner No 1 touching the Hudsons related to their wasted costs. 18    The orders pronounced in Bremner No 1 on 3 November 1998 have not been entered. This is because the vendors moved promptly to set them aside. By Notice of Motion filed on 24 November 1998 (joining all other parties to the appeal) the vendors sought:

(1) an order pursuant to Pt 40 r9 that the orders made on 3 November 1998 be set aside;
(2) (alternatively) an order extending the time within which the vendors may appeal from the dismissal of the proceedings against Mr and Mrs Hudson.

Directions were made for the exchange of written submissions and the matter was listed for hearing. Written submissions were filed by all parties.

19    Separate written submissions were filed on behalf of Mr Hudson and Mrs Clissold (formerly Hudson). Mrs Clissold opposed the vendors’ application for an extension of time to appeal from the dismissal of the proceedings against them. In doing so, she relied upon the fact that the vendors had at trial adopted the position that Mrs Murphy had no authority to bid for the Hudsons. She pointed to the effective abandonment of the claim against them, as noted by Windeyer J. Reliance was also placed upon the evidence of the vendors’ counsel at trial (Mr White) which is referred to below. Mrs Clissold gave examples of the stance which the Hudsons might have adopted at trial had the vendors conducted their case differently below. (I shall return to them after discussing Mr White’s evidence.) 20    Mr Hudson effectively adopted his former wife’s submissions. He did this in a short written submission. His counsel also made arrangements for the Court to be informed by Mrs Clissold’s counsel to similar effect. 21    The vendors filed an affidavit sworn by the counsel who had represented them at trial and in the earlier stage of the appeal (Mr White). It was read without objection and the evidence was unchallenged. 22    Portions of this evidence established that counsel had not perceived that the issue which became critical to the disposition of the appeal had been raised in the appeal. It was not adverted to in the auctioneers’ notice of appeal nor in their written outline of submissions. In the light of this, it is entirely appropriate that the vendors should be given the opportunity to address the new issue on its merits notwithstanding pronouncement of judgment in the appeal. Not every argument that is overlooked would attract such a dispensation. But here the issue was critical, its existence and importance were not perceived by counsel, and (most significantly) there is, I accept, uncertainty as to whether the argument was “in the ring” in the appeal. I remain of the view that the possibility of the issue arising was adumbrated in discussion with counsel during the hearing of Bremner No 1, but the uncertainty on the topic is underscored by the disagreement about this between the members of the Court in Bremner No 1 and the concession made by senior counsel for the auctioneers that he had not in fact put the submission which found favour with the majority. 23    Not all compelling arguments come from the mouth of counsel. Judges have been known to raise good points, especially points within the scope of existing pleadings. In an appeal by way of rehearing, the entire matter is before the appellate court and, unless there is some provision to the contrary, that court “can entertain any matter, however arising, which shows that the decision of the court appealed from is erroneous” (Gipp v The Queen (1998) 194 CLR 106 at 116 per Gaudron J, citing Ah Yick v Lehmert (1905) 2 CLR 593 at 601). 24 Since judgment in Bremner No 1 has not been entered, the correctness of the fresh basis for actual authority and the appropriateness of entertaining that issue on appeal must be addressed afresh. 25    It is just to do so (Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300). No party has submitted that the alternative basis for actual authority which found favour with the majority of the Court in Bremner No 1 was wrong. Nor is there continuing disputation about whether or not that particular issue was “in the ring” at the earlier hearing. In the light of the opportunity to debate the alternative basis of actual authority on its merits afforded to all sides by the current application, the question whether the opportunity to do so was or should have been taken at the earlier hearing in this Court was correctly described by senior counsel for the vendors as “barren”. No party dissented from that proposition. 26    The contention raised by the vendors, Mr Hudson and Mrs Clissold is that it is not properly open to the Court of Appeal to entertain the point, having regard to the course of the trial and the impact of this in the way the vendors conducted their case at trial and on appeal. This was the ground upon which issue was joined in the recent hearing. 27    To understand the issue in context it is necessary to refer in a little detail to the facts touching the auction and the successful bid. 28    Neither Mrs Murphy nor Mr McAllister gave evidence at trial, nor was their absence explained. They were described by Windeyer J as “shadowy figures”. It was however established, or at least accepted, that they existed and that Mrs Murphy was Mr McAllister’s secretary. The evidence of what she said on the telephone during the auction was given by Mr Upjohn without challenge. As indicated in my judgment in Bremner No 1 (at pp5-6), Mrs Murphy remained on the line as the auction proceeded. She made bids, having been told by Mr Upjohn what was going on in the auction room, and those bids were relayed by Mr Upjohn to Mr Bremner. At one stage she said that she had to go to talk to her boss. According to Mr Upjohn, she moved away from the telephone, then came back and continued to bid. She “ultimately” made the successful bid of $960,000. 29    On the fall of the hammer, Mr Upjohn congratulated Mrs Murphy and put Mr Bremner on to talk to her. Mr Bremner went to Mr Upjohn’s telephone intending to congratulate the successful bidder. Mr Upjohn told him that he had Mr McAllister’s secretary Mrs Murphy on the line and that it was she who was bidding on behalf of Mr and Mrs Hudson. Mr Bremner asked her to arrange for the $96,000 deposit to be telegraphically transferred. She told him that she realised that it was urgent that the deposit be forwarded by telegraphic transfer and said that she would get Mr McAllister to arrange it. The issue as to whether she was the mere mouthpiece of Mr McAllister, as distinct from a subdelegate who had exercised independent discretion in deciding which bids to make and when to make them, was advanced as an inference to be drawn from the words which she used. Neither Windeyer J nor the Court of Appeal were prepared to draw this inference. 30    The vendors, Mrs Clissold and Mr Hudson submit that the principle in Suttor v Gundowda Pty Ltd precludes appellate consideration of the alternative basis of actual authority. They submit that, had the proposition been advanced at trial, it is likely the trial would have been conducted differently. They point out that the capacity to raise a fresh point on appeal is precluded “where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding (Suttor at 438 per Latham CJ, Williams J and Fullagar J, emphasis added). The principle extends beyond evidence foregone. It may apply wherever there is an attempt to depart from the basis upon which litigation was conducted or decided at an earlier stage in proceedings (Castanho v Brown & Root (UK) Ltd [1981] AC 557, Rogers v The Queen (1994) 181 CLR 251, Council of the Municipality of Woollahra v Sved (24 July 1998, Court of Appeal, unreported). 31    In Multicon Engineering Pty Ltd v Federal Airports Corporation (15 October 1997, Court of Appeal, unreported) I summarised the principles in the following terms (at 23):

A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial.
I also pointed out (at 23) that:
A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court “may find it expedient and in the interests of justice to entertain the point” ( Water Board v Moustakas (1988) 180 CLR 491 at 497).

32    In its various manifestations, the Suttor principle is an exception to an equally emphatic principle emphasising the duty of an appellate court, in an appeal by way of rehearing, to address new questions of law arising upon facts either admitted or proved beyond controversy (see Suttor at 438, citing Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480). That duty is not confined to new questions of law, but it remains subject to the overarching requirement of fairness in procedure. The scope of the duty is illustrated by cases in which amendments to pleadings have been permitted on appeal. 33 This appeal is by way of rehearing (Supreme Court Act s75A(5)). In these circumstances, this Court “shall have the power and duties of the court … from whom the appeal is brought, including powers and duties concerning … the drawing of inferences and the making of findings of fact” (s75A(6)(b)). The scope of these powers is examined in the recent decision of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liquidation) (1999) 160 ALR 588 where Gaudron J (at [64]) stated that the substance of the matter was that there had not yet been a determination of the SRA’s case “upon a consideration of the real strength of the body of evidence it presented”. See also Gipp v The Queen (passage quoted above, par 23). 34    Subject to the proper application of the Suttor point, these powers and duties amply justify the Court in upholding the alternative case based on actual authority that is now clearly raised in this appeal. The reasons are set out on pp15-18 of my judgment in Bremner No 1. 35 The facts having been found and the argument as to the alternative basis of actual authority being accepted (as indicated above, no party contests its validity), then it is prima facie incumbent upon the Court to translate such conclusions into appropriate orders. Section 75A(10) of the Supreme Court Act states that:

The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.

36    If an appellate court is in as good a position as a trial judge to draw a particular inference, then it should do so when this is necessary to dispose of the issues in the appeal by way of rehearing. In a well known passage in Warren v Coombes (1979) 142 CLR 531, Gibbs ACJ, Jacobs J and Murphy J summed up their review of earlier authorities (at 551):

… the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.

37    The affidavit of the vendors’ counsel to which I have already referred said this in relation to the trial and the manner in which it was conducted on behalf of the plaintiffs (vendors):

After a consideration of the pleadings and the statements filed on behalf of the parties I understood the issues to be as follows:

(i) Whether the bids had been made with the actual authority of the first defendants by Mrs Murphy relaying McAllister’s instructions;

(ii) Whether the first defendants had ratified the contract for sale;
(iii) Whether the second and third defendants were liable for a breach of warranty of authority.
That understanding did not alter during the trial.
The proceedings came on for hearing before Windeyer J on 30 August 1995 and were heard on 31 August and 1 September 1995. Costs were dealt with on or about 14 September 1995. During the hearing of the proceedings I formed the following views:
(i) That it could not be proved on the evidence that Mrs Murphy was the mouthpiece of Mr McAllister and consequently no authority had been given to the second and third defendants to bind the first defendants to the contract for sale;
(ii) That it could not be proved on the evidence that the first defendants had ratified the contract for sale;
(iii) That the first defendants would be released from liability and that the second and third defendants would be held liable for breach of warranty of authority.
In the afternoon of the second day of the hearing evidence was completed and addresses commenced. I completed my closing address that afternoon. I submitted to Windeyer J the following:
(i) That based on the evidence the first defendants did not ratify the contract for sale;
(ii) That based on the evidence it could not be established that Mrs Murphy was the mouthpiece of Mr McAllister;
(iii) That as Mr McAllister was the only person who had authority to bid on behalf of the first defendants and he did not do so the second and third defendants had no authority to enter into the contract on behalf of the first defendants;
(iv) That the second and third defendants were liable for breach of warranty of authority.
I did not formally abandon the plaintiffs’ claim against the first defendants. I did, however, frame my closing address in a way which suggested that the case against the first defendants based on the evidence probably could not succeed. Had the case been conducted in such a way as to cause me to believe that the case against the defendants was not hopeless I would never have framed my closing address in the way that I did.
The closing addresses from counsel for each of the defendants did not raise any new issues. I recall that Mr Reuben, counsel for the second and third defendants, formally abandoned any allegation of fraud against the first defendants but otherwise put the case for the second and third defendants on the basis of ratification, that Mrs Murphy was a mere mouthpiece for Mr McAllister and that the bidding was but a mere mechanical or administrative act.
(emphasis added)

38    This affidavit is entirely consonant with Windeyer J’s reasons for judgment. 39    Three matters emerge. 40    First, it is pertinent to observe that the vendors’ case against the auctioneers as pleaded and fought at trial required the vendors as plaintiffs to establish that the auctioneers acted without authority. The onus remained with the plaintiffs throughout, albeit that they had the advantage of having two sets of defendants (the Hudsons on the one hand and the auctioneers on the other) whose several interests lay in contradicting each other on the vital issue of the auctioneers’ authority. It was a classical “cut throat defence” situation. This point as to onus deserves emphasis because the vendors can draw no comfort from the subjective perception of their counsel as to whether or not the evidence at the end of the day favoured pressing the case against one set of defendants (the Hudsons) or the other (the auctioneers). From start to finish, the plaintiffs would win against the Hudsons and lose against the auctioneers if they proved authority; and win against the auctioneers and lose against the Hudsons if they failed to do so. They were entitled to leave the matter to the trial judge, and they did so (albeit that counsel urged the case against the auctioneers and effectively abandoned it against the Hudsons). But the case against the Hudsons was not formally withdrawn at trial. 41    Secondly, the case against the Hudsons was not formally abandoned. 42    Thirdly, the only grounds of Mr White’s understanding of the issues were the pleadings and the “statements” filed on behalf of the parties. The pleadings asserted that the bids had been made with the actual authority of the Hudsons. And the statements included the affidavit of Mr Upjohn. This was the source of the primary material about the conversation with Mrs Murphy that became, by inference, the basis of my conclusions on the alternative basis of actual authority. Mr Upjohn was cross-examined by Mr White (AB266-270) but nothing was put to him to cast any doubt upon the conversation as recounted. Mr White’s sole purpose seems to have been to get Mr Upjohn to acknowledge, as he did, that he merely assumed that Mrs Murphy had proper authority. 43    There was no cross-examination by counsel appearing for Mr and Mrs Hudson (Mr Smark and Mr Armfield). 44    In her written submissions on the recent application, Mrs Clissold (Hudson) submitted that if Mr White had recommended that Mrs Murphy and Mr McAllister should be located and interviewed to ascertain what precisely took place at the time of the auction, this may have led to the vendors calling one or both of them to give evidence. It would then have been open to the Hudsons to cross-examine those witnesses to ascertain whether or not Mrs Murphy was authorised by Mr McAllister to bid up to $960,000 for the purpose of purchasing the property. It was also submitted that there could have been an investigation as to whether there were any restrictions or qualifications in any instructions to Mrs Murphy and whether or not she complied with them. Had that enquiry been carried out at the trial, there would have been submissions as to whether or not Mrs Murphy had actual authority. 45    Mrs Clissold further submitted that, if Mr White had modified his cross-examination, introduced evidence as to whether the vendors may have been prepared to sell the property for a price lower than $960,000 or otherwise altered his presentation of the vendors’ case, it is reasonable to assume that this may have had a consequential effect on the way in which Mrs Clissold’s case was presented. 46    These submissions were adopted by Mr Hudson. 47    These submissions by Mr Hudson and Mrs Clissold really emphasise that the course taken at the trial on their part depended, ultimately, upon the stance taken by Mr White, counsel for the vendors. As indicated, Mr White took the course that he did based upon his perception that the only case established on the evidence was that (against the auctioneers) based upon the auctioneers’ lack of authority. Mr White was entitled to take that position and it was obviously in the interests of the Hudsons to adopt it. Their heads were not being shot at, and they were content to keep their heads down. But that is a long way from establishing that it was the course taken at trial by the auctioneers that induced the vendors (a fortiori the Hudsons) to conduct their respective cases at trial in the way that they did. 48    The argument as to actual authority that was developed at trial by counsel for the auctioneers was the submission that Mrs Murphy had the actual authority of the vendors because she was the “mouthpiece” of Mr McAllister, their duly appointed agent. The “mouthpiece” argument was that each bid relayed by Mrs Murphy on the telephone was the outcome of specific instructions from Mr McAllister (who was presumably either in her presence, or in direct contact with her during the currency of the auction). This submission was rejected. But if the identical facts support the alternative basis of actual authority, then I see no reason why the auctioneers should be prevented from relying upon that argument in an appeal by way of rehearing. To do so involves no unfairness in procedure. 49    This does not mean that Windeyer J erred in failing to consider an argument that was not put to him. But, in an appeal by way of rehearing, it is open to this Court to decide the appeal on the alternative basis, albeit that it arose in dialogue between bench and bar in the hearing of the appeal Bremner No 1. 50    Accordingly, the orders upholding the appeal in Bremner No 1 should stand. 51    It does not follow automatically that judgment should be entered in the vendors’ favour against the alternative defendants, the Hudsons. The justice of now entering a verdict in favour of the vendors against the Hudsons turns on more than the conclusions that the facts support such a result and that the Hudsons have (belatedly) had a proper opportunity to contest the substantive point. 52    Nevertheless, it is pertinent to recall that the vendors never formally abandoned their alternative case against the Hudsons, and that the Hudsons were made parties to an appeal instituted by a notice of appeal that sought the entry of a verdict for the vendors against the Hudsons (par 12 above). 53    The vendors’ response to the judgment in Bremner No 1 was to move this Court to set aside that judgment. Alternatively, they sought to file an appeal out of time against the Hudsons. It should always have been obvious to the vendors and their advisers that, in the event that the auctioneers succeeded in the appeal against the vendors, the vendors would be left without a verdict against anyone in circumstances which showed that someone was liable. The vendors could have filed a defensive appeal against the Hudsons and would have been well advised to have taken this or some other formal step to notify their intent to seek a verdict against the Hudsons in the event that the auctioneers’ appeal were to succeed. Perhaps they were lulled by the fact that the auctioneers addressed the flow-on position in order 2 as sought in their notice of appeal. 54    The Hudsons were made parties to the appeal. They filed written submissions in support of the vendors and their counsel spoke to those written submissions, except that Mr Smark curtailed his submissions when it was pointed out that Mr Walker’s clients (ie the auctioneers) were no longer pressing order 2 in the notice of appeal (see par 13 above). This really was the point at which counsel for the vendors should have sprung to his feet so as to ensure that the vendors maintained the fallback position of seeking a verdict from the Hudsons if the vendors were to be stripped of their verdict against the auctioneers. This did not happen. The reason cannot be that the vendors were under no threat of losing their verdict against the auctioneers. The parties were in the middle of argument in Bremner No 1 and there was no suggestion that Mr Walker SC was abandoning the appeal itself. 55    Once this stage was reached, the Hudsons could not properly have been put in prejudice of having a verdict entered against them without this possibility being raised afresh. It had been raised in the notice of appeal, but Mr Walker SC had on behalf of the auctioneers abandoned the claim for order 2 as sought. Since the vendors said nothing about the matter, it would have been quite unfair for such an order to have been made in disposing of the proceedings in Bremner No 1. 56    But is it unfair to do this now that the vendors have belatedly claimed their right to a verdict against the Hudsons? The Hudsons submit that the vendors should not be given leave to file a notice of appeal out of time in the light of their inaction and silence in the proceedings in this Court down to the time when judgment was given in Bremner No 1. In my view, it was never necessary for a notice of appeal or notice of cross-appeal to be filed so long as the Hudsons were parties to the proceedings in the Court of Appeal and were on notice of the possibility of such an order being made. The Court’s powers, set out in s75A(10), were ample enough to give any judgment or make any order which ought to have been given or made or which the nature of the case required (cfHanson v Wearmouth Coal Co [1939] 3 All ER 47 at 55; Castellan v Electric Power Transmission Pty Ltd (1967) 68 SR (NSW) 159 at 175, 186-7; Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd (1974) 48 ALJR 390). 57 Where do the interests of justice lie? In my view, this Court should strive to give effect to the substantive rights of the parties as it perceives them, so long as no procedural unfairness occurs. Applying this broad principle, I am of the view that the Court should enter a verdict in the vendors’ favour against the Hudsons as foreshadowed in the original notice of appeal. Mr Hudson and Mrs Clissold have had full opportunity to debate the substantive point relating to the alternative basis of actual authority. They have not suggested that the point is bad. In my view, it is good. It means that they gave authority to Mr McAllister which, in the unusual events that occurred, was sufficient actual authority to authorise Mrs Murphy to have made the bid which she did and which was ultimately successful. 58 It is true that that the vendors’ conduct, first at the trial, and secondly on the appeal, would have led the Hudsons to think that the vendors were looking to the auctioneers for vindication for the obvious wrong which someone had done to them. But, on proper reflection, the Hudsons must have realised that the position adopted by the vendors was really contingent upon the vendors succeeding against the auctioneers. The wind having changed, it can hardly surprise Mr Hudson and Mrs Clissold that the vendors want to revert to the position as pleaded by the vendors and the auctioneers at trial and by the auctioneers on appeal. (The pleadings also included several cross-claims which foreshadowed this possibility.) If Mr Hudson and Mrs Clissold were actually present at the time, then they would, for a short period during the trial and the time between hearing and judgment in the appeal in Bremner No 1, have felt they were well and truly off the hook. Nevertheless, litigation ebbs and flows. Parties will be permitted to amend and retrace steps if this can occur without ultimate injustice. A fortiori if the parties seek to return to their pleaded assertions. In my view, there would be no ultimate injustice to Mr Hudson and Mrs Clissold if this Court were to give effect to the legal rights of the parties as it perceives them. Appropriate orders as to costs will provide appropriate assuagement. CfBrady v Brady [1989] AC 755 at 781-3. 59 Sadly this is a case where the burden of costs will loom large. It was already a concern at trial, given the alternative cases pleaded by the vendors, the cross-claims and the separate representation of Mr and Mrs Hudson. In a separate judgment as to costs, delivered on 14 September 1995, Windeyer J decided that a Bullock order was appropriate. Accordingly, he ordered the auctioneers to pay the vendors’ costs; the vendors to pay the Hudsons’ costs; and the auctioneers to pay to the vendors the amount of costs recoverable by the Hudsons from the vendors. 60 I see no reason why the reversal of the substantive result at the trial should not be mirrored in a similar costs order relating to the costs of the trial. I would therefore set aside the judgment and orders made in the proceedings. In lieu thereof, I would make the following orders:

(1) Judgment for the plaintiffs against the first defendants for $147,812.42, such judgment to take effect on 1 September 1995.

(2) Judgment for the second and third defendants against the plaintiffs.

(3) Order the first defendants to pay the plaintiffs’ costs of the proceedings.

(4) Order the plaintiffs to pay the second and third defendants’ costs of the proceedings.

(5) Order the first defendants to pay to the plaintiffs the amount of costs recoverable by the second and third defendants from the plaintiffs.

(6) Dismiss the three cross-claims.

The order for costs is intended to embrace any additional costs relating to the various cross-claims that were propounded.

61    These orders are intended to place the parties in the position in which they would have been had the orders been made which in my view should have been made in the light of the alternative basis for actual authority argument which found favour on the appeal. 62    As to the costs of the appeal, it is, I think, appropriate to distinguish between the substantive costs which were incurred down to the delivery of judgment in Bremner No 1, and the costs referable to the applications being addressed in this judgment. This is a rough and ready way in which to segregate the costs referable to the appeal in its final manifestation and the costs referable to the confusion as to the matters in issue in the appeal. 63    In my view, the additional costs associated with the current application are costs which would have been avoided had the vendors not been so slow taking up the question of the appropriate order touching Mr Hudson and Mrs Clissold in the event of the auctioneers’ appeal succeeding against the vendors. Since, in my view, the alternative basis of actual authority question was “in the ring”, the nettle should have been grasped in the first hearing (at least once Mr Walker SC loosened his grasp). The proper order for the costs of the applications now under consideration is that the costs of Mr Hudson and Mrs Clissold should be borne by the vendors. The auctioneers should bear their own costs of the current application. 64    As to the costs of the appeal proper, I think that the auctioneers’ costs should be borne by the vendors and the Hudsons equally, since each respondent entirely opposed the appeal down to and including the day of hearing. The respondents should have a certificate under the Suitors’ Fund Act 1951, if qualified. 65 It is possible that something has been overlooked in this complex matter. The parties should bring in short minutes within fourteen days. If there is disagreement, each party should within seven days thereafter file and serve his, her or its preferred short minutes together with submissions outlining the points of contention. 66 MEAGHER JA: I agree with Mason P. 67 POWELL JA: I have read, in draft, the judgment which has been prepared by Mason P in this matter. I regret that I am unable to concur with the orders which his Honour has proposed or with his reasons for proposing those orders. On the contrary, I am of the view that the orders which were made by the Court, by majority, on 3 November 1998 should be set aside, and, in lieu thereof, there should be made orders that the appeal be dismissed with costs. In addition there should, in my view, be made orders dismissing the Notice of Motion filed on behalf of the First Respondents on 24 November 1998 and providing for the costs of the motion. 68 I take that view primarily because I remain of the opinion, which I expressed in my judgment on the appeal, that the point upon which Mason P, with whom Meagher JA agreed, founded his judgment was not only not argued at trial, but was not argued on the hearing of the appeal, and that, even if the Appellants had sought to argue the point on the hearing of the appeal, it ought not to have been entertained. The opinion which I then expressed has been strengthened, rather than weakened, by what has occurred in relation to the present Notice of Motion. 69 In my judgment on the appeal I recorded (pp. 1-2) what were the grounds of appeal taken in the Amended Submissions filed on behalf of the Appellants, and, as well (pp. 5-7) the passages in the oral submissions in reply to which Mason P referred as supporting the “alternative basis of actual authority” upon which he founded his judgment, and I see no need to repeat those passages here. 70 The Written Submissions which were filed on behalf of the Appellants in relation to the Notice of Motion contained the following (inter alia):

“4. The appeal was by way of re-hearing. Subject only to the very familiar principle in Suttor v. Gundowda (1950) CLR 418 at 438, this court was bound to decide the matter according to the findings of fact upheld or made by it, and the conclusions of law to which it came after argument.
5. What is described as the argument ‘ which found favour in the President’s reasons for judgement at pp. 15-18 ’ raised a question how one classified the juristic basis of a conclusion that the purchasers’ conduct in relation to the winning bid rendered the contract purportedly made on their behalf by the auctioneers binding on them in favour of the vendors.
6. Plainly, the attention paid in argument to the amount of the last bid being expressly authorised by the purchasers was in the forensic context of submissions about ratification. It raised consideration of the uncontested evidence of the purchasers’ subsequent express approval of the purchase price, as well as the uncontested evidence of their antecedent conduct in authorising their solicitor (Mr. McAllister) to bid that high, i.e. to that specific sum.
7. The Suttor v. Gundowda principle would never prevent the disposition of an appeal simply because a different juristic basis would thereby be assigned for a conclusion from that argued below.
8. The facts concerning the purchasers’ antecedent and subsequent conduct concerning the amount of the final bid, as established by the evidence served before the trial and tested during the trial, cannot reasonably be supposed to have been approached in any different way, at the trial , depending whether that conduct would be characterised as demonstrating actual authority or a ratification of unauthorised action.
9. Nor could it be argued that anything about those facts could be differently treated in the argument on appeal depending whether they were urged in the context of actual authority or ratification. The gist of the argument was unmistakable; viz. that the purchasers intended beforehand that the bid on their behalf should (if necessary) go as high as the successful bid was in the event, and that they approved its success afterwards. The President’s inference agreed in by Meagher JA of a ministerial delegation by Mr. McAllister to Mrs. Murphy to make that authorised bid was not a conclusion which could by any possibility worth consideration have been prevented by a realistically different course in the evidence below.
10. In any event, the possible inhibition upon this conclusion being reached by this court as a result of the Suttor v. Gundowda principle was expressly considered and rejected.”

71    If I may, with respect, say so, to suggest - as these Written Submissions appear to suggest - that express authorisation - which must, of necessity, antedate the relevant act - and ratification - which, of necessity postdates, and adopts what would otherwise be, an unauthorised act - are merely alternative ways of expressing the same concept, each of which was advanced on the hearing of the appeal, is to indulge in sophistry. 72    That it was not submitted, on the hearing of the appeal, that Mrs. Murphy had been expressly authorised to bid up to $960,000.00 is, I suggest, made abundantly clear by the following passage (T. 9-10) in the transcript of the hearing of the Notice of Motion:

“WALKER
………
Your Honours, the issue of actual authority as well as of ratification by the time argument was entertained in final address below and of course in this Court, were always the issues in relation to authority. They are the ones one would expect where there is a breach of warranty authority (sic) case and where the breach of the warranty is denied, as it was, by reliance upon a pleading that there was actual authority. A pleading of actual authority and a pleading, that is an argument, I should say, of ratification, necessarily involved examination of pre-bid dealings between the purchasers and McAllister, bid dealings McAllister Murphy (sic) and the purchasers, bearing in mind that the evidence revealed, that is the filed evidence revealed, the supposed existence of McAllister Murphy (sic), and finally it involved the post-bid dealings between vendors, purchasers and auctioneers. All of those matters were addressed in the evidence below and all of them were ventilated in some detail in the factual argument in this Court.
MEAGHER JA: One thing I am a little unclear about is in your submissions in the appeal, did you embrace the arguments which found favour with the majority of this Court?
WALKER: Not as such.
POWELL JA: Not at all I would have thought, with great respect, Mr. Walker.
WALKER: I think that’s really what I mean, your Honour, when I say not as such. The way in which the conclusion is expressed does not appear at all, that is, in the terms of that conclusion. The facts of course upon which that conclusion is expressed are very much taken from the argument, not just of me but of all counsel in the case.
POWELL JA: I must say that both at the time and again last night I went through the written submissions of all parties for the purposes of the Court of Appeal. Everybody thought there were two submissions. One, Mrs. Murphy was the messenger and not the sender of the message, and two, ratification.
WALKER: Yes, your Honour.
POWELL JA: And that’s how I interpreted the submissions both written and oral that you had advanced.
WALKER: Correctly, your Honour.
POWELL JA: That appears to have been the way Mr. Reuben ran it at the trial, certainly the way I interpreted Windeyer J’s judgment except that the additional issue at trial was estoppel, which was not pressed for the purpose of the appeal.
WALKER: Yes.
POWELL JA: Why, I ask, should we now entertain a submission that was not advanced at trial or at least in terms not advanced on the hearing of the appeal?
WALKER: The short answer is because that which identifies it as a submission not put is merely a different way of expressing the juristic basis for a conclusion in the same area of general legal discourse, namely authority and liability for unauthorised acts by way of ratification or estoppel or whatever, and --
POWELL JA: But the case that Mr. Reuben was running was to say the evidence establishes she was the messenger, not the evidence establishes that she was given express authority by McAllister to bid up to 960,000, which is the argument you now seek to rely on. That’s the way the case is put at trial, and if I may say so, I find it monstrous.
WALKER: At the trial, what my friend Mr. Rayment says is right, with respect.
POWELL JA: Put here as well.
WALKER: Could I take it one by one. At trial, the evidence by which it was supposed to prove that Mr. McAllister had authorised Mrs. Murphy to be the ministerial bidder was evidence which was frankly impossible hearsay and rejected.
POWELL JA: The evidence to support that she in fact had express authority is even worse.”

73    This passage from the transcript, in my view, makes it clear that the Appellants did not, on the hearing of the appeal, advance any submission to the effect of that which formed the basis upon which Mason P founded his judgment, a fact which his Honour’s observation, in his judgment on this Notice of Motion (para. 23), that “not all compelling arguments come from counsel. Judges have been known to raise good points” would seem to confirm. 74    Let it be accepted that it is open to a judge, whether at trial or on the hearing of an appeal, to raise for discussion an argument which had not previously been raised, what I have recorded will, I suggest, demonstrate that that was not what happened in the present case - on the contrary, the point upon which Mason P founded his judgment was not formulated until after the conclusion of the hearing of the appeal, and the parties were not thereafter informed that the point was being considered as a possible basis for judgment, nor were their submissions upon the point invited. That this occurred, in my view, caused the appeal to miscarry, and it is no answer to this to say that “in any appeal by way of rehearing, the entire matter is before the appellate court and, unless there is some provision to the contrary, that court ‘can entertain any matter, however, arising, which shows that the decision of the court appealed from is erroneous’” 75    Before I part from that question, I think it appropriate to note the following in relation to the extract from the judgment of Gaudron J in Gipp v. The Queen (1998) 194 CLR 100, 116 to which Mason P has referred in his Judgment:

1. that passage might be compared with the following passage in the joint Judgment of Toohey and Gaudron JJ in Mickelberg v. The Queen (1988-1989) 167 CLR 259, 298) :

“Ordinarily, an appeal raises the correctness or otherwise of the decision under appeal in the light of the evidence and issues as they were before the court whose decision is in question .”
(my emphasis).


2. in any event, the point upon which the appeal in Gipp v. The Queen supra succeeded, although not raised at trial or on the appeal to the Court of Appeal was raised in the Notice of Appeal to the High Court, and had been argued on the appeal to the High Court.

3. the extract to which Mason P has referred appears in the following context:

“Before leaving this matter it is appropriate to note two other matters. First, were I of the opinion that, given the limited nature of the argument in the Court of Appeal, it could not be said that it adopted an incorrect approach in considering whether the convictions were unsafe and unsatisfactory, I would, nonetheless, grant leave to the appellant to amend his grounds of appeal and allow the appeal. In this respect, it is sufficient to note that when an appeal is lodged, the entire matter is before the court to which the appeal is brought and, unless there is some statutory provision to the contrary, that court ‘can entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous.’
The effect of s.668E(1) of the Criminal Code Act 1899 (Q) is to require the Court of Appeal, in an appeal against conviction, to determine whether there is any defect in the trial process occasioning a miscarriage of justice. Although in its reasons in this case, the Court of Appeal dealt only with the question whether the convictions were unsafe and unsatisfactory, in the sense that the jury should have entertained a reasonable doubt as to guilt, the actual decision was that there was no defect in the trial process occasioning a miscarriage of justice. That decision was wrong. And an appeal having been lodged, it is the duty of this Court so to hold, notwithstanding the limited nature of the matters argued in the Court of Appeal. It is because a court of criminal appeal must decide whether there has been an error occasioning a miscarriage of justice and, on this appeal, this Court must decide whether that decision was right or wrong, that an appeal may succeed in this Court on a point neither taken at trial nor in the subsequent appeal to a court of criminal appeal.”

76    In the circumstances, it seems to me, with respect, that the observations of Gaudron J in Gipp v. The Queen supra have little to say as to the question with which this Court is now concerned to deal. 77    The mere fact that this Court has now heard argument on the question whether the orders made by this Court on 3 November 1998 ought to stand does not, in my view, cure what I regard as having been a miscarriage. Unless those orders be set aside - even if the consequence of their being set aside is not, as I suggest is the appropriate course, an order that the appeal be dismissed, but an order that the appeal be reheard by a court differently constituted - the Respondents will, in my view, be entitled to hold a justifiable grievance that judgment was given, and those orders made, against them without their being given an opportunity to be heard. 78    But even if those orders not be set aside, it does not follow that the First Respondents ought now to be given leave to appeal out of time or that Judgment ought not to be given in their favour against the Second Respondents. 79    The bases upon which, in his Judgment, Mason P appears to found his view that that leave should now be given to, and that judgment should now be granted in favour of, the First Respondents, appear to be:

1. that the Second Respondents were - albeit at the instance of the Appellants - made parties to the appeal and relief was - albeit by the Appellants - sought against them;

2. although not filing an appeal, the First Respondents did not abandon their claim against the Second Respondents;

3. the powers of this Court on appeal are such as to have enabled it on the hearing of the appeal to have entered Judgment in favour of the First Respondents against the Second Respondents even though the Appellants no longer sought, and the First Respondents did not then seek, that that be done.

80    I regret that I am unable to share what appear to be his Honour’s views in this respect. 81    In their Notice of Appeal, the Appellants - albeit that they, in my view, did not have the locus to entitle them to do so - sought (inter alia):

“2. Verdict for the Plaintiffs/First Respondents against the First Defendants/Second Respondents in the amount of $96,000.00 plus interest.”

82    That being so, and SCR Pt 51 r 6(1) (now SCR Pt 51 AA r 6(1)) requiring that “each party to the proceedings in the court below who is affected” - which means “detrimentally affected” (Gillooly v. Gillooly [1950] 2 AER 1118n; Danny Kidron & Andrew Spaile Architects Pty. Limited v. Garrett (1994) 35 NSWLR 572) - “by the relief sought in the notice of appeal … shall be joined as a party … respondent to the appeal”, it was necessary for the Second Respondents to be joined as parties-respondents to the appeal. However, as, at the commencement of the hearing of the appeal, counsel for the Appellants accepted that the Appellants could not support a claim for that order, and as no application was then, or at any time prior to the delivery of judgment on the appeal, made on behalf of the First Respondents for leave to appeal out of time, the Second Respondents should then have been removed as parties to the appeal (SCR Pt 51AA r 6(2)). Although, because of the comparative brevity of the hearing of the appeal, that was not done at the time, the Court did - as it was, in the circumstances, appropriate for it to do - order that the Appellants pay the costs of the Second Respondents of the appeal. 83 Although it may be that, at trial, the First Respondents did not formally abandon their claim against the Second Respondents, it is clear that, in substance, they did so. That this was so is made clear by the following passage in Windeyer J’s Judgment:

“I turn to the legal questions. I should say at the outset that the case of the first defendants was that there was no contract binding on them because Mrs. Murphy had no authority to bid for them at the auction as Mr. McAllister had no authority to delegate that task to her. As the authority to execute the contract was clearly conditional upon a valid authorised bid being received, that authority was never activated. The plaintiffs adopted this position, in effect abandoning their claim against the first defendants.”

84    The same may be said of the First Respondents’ conduct of the appeal for, quite apart from the fact that the First Respondents did not file a Notice of Appeal, neither in the written submissions which were filed, nor in the oral submissions which were made, on their behalf, did the First Respondents contend that the Second Respondents were bound by the contract. Thus, the written submissions contain the following (inter alia):

“ C. REPLY TO APPELLANTS’ SUBMISSIONS
C1 The Appellants’ submission that the evidence strongly supports the inference that Mrs. Murphy was consulting Mr McAllister during part of the telephone bidding is erroneous and in any event irrelevant. This is for the following reasons:
(a) The only evidence that Mr. McAllister was in a position to physically direct Mrs Murphy during the course of the bidding was an assumption made by Mr. Upjohn that Mr. McAllister was nearby Mrs. Murphy during the bidding (AB 172.S-173H; AB 268.22);
(b) The fact that Mrs. Murphy was required to leave the telephone and come back at some later time suggests that in fact Mr. McAllister was not in the vicinity of Mrs. Murphy and was not in a position to direct her during the course of the auction;
(c) The statement of Mrs Murphy ‘ I have to go and talk with the boss ’ does not permit the Court to draw the inference that Mrs. Murphy was consulting Mr. McAllister in relation to the progress of the auction. Mr. Upjohn in his affidavit at AB 173.H states that during the course of the auction Mrs. Murphy was using a typewriter or calculator and told him ‘ I’m just adding up figures while I’m waiting ’. It is equally plausible that Mrs. Murphy sought the advice of her ‘ boss ’ in relation to a matter unrelated in the progress of the auction;
(d) In any event the evidence at its highest in favour of the Appellant is that at some stage during the course of the auction Mrs. Murphy discussed a matter with her boss. If it is assumed that her boss was Mr. McAllister and it can be inferred that such matter was related to the auction, it is apparent from the transcript of the auction (AB 55-64) that Mrs. Murphy made numerous bids without any evidence of having consulted Mr. McAllister.
C2. By reason of the foregoing the evidence does not support the submission that Mrs. Murphy simply acted as a conduit for Mr. McAllister.
C3. The comparison made by the Appellants between the roles of Mr. Upjohn and that of the bidder authorised by Mr. and Mrs. Hudson is superficial. In the case of Mr. Upjohn he is indeed a conduit - passing on the bidding price to the telephone caller and then passing on the telephone caller’s bid to the auctioneer. The role of the person entrusted with the bidding on behalf of Mr. and Mrs. Hudson is very different. He was required to exercise discretion, judgment and commonsense gained from his experience as a solicitor in respect of which Mr. and Mrs. Hudson were entitled to place reliance. It was never put to Mr. and Mrs. Hudson in cross-examination that they did not response confidence in the expertise and experience of Mr. McAllister. Nor was it put to Mr. and Mrs. Hudson that they would have been content in the knowledge that Mrs. Murphy was carrying out the bidding. Mr. Bremner recognised that the failure to ensure Mr. McAllister was the bidder was unsatisfactory (AB 253.20-45) and that he should have inquired whether Mrs. Murphy had authority from Mr. and Mrs. Hudson on bid on their behalf (AB 255.25.31). Mr. Upjohn held similar sentiments (AB 270.1-20).
C4. There was not ratification of the contract for sale. Ratification cannot unless and until Mr. and Mrs. Hudson became aware of Mrs. Murphy’s involvement in the bidding at the Glenburnie auction. This was a material circumstance: see Bowstead on Agency page 64.
C5. The Appellants allege in their pleading that the acts of ratification occurred between 22 March 1991 - 26 March 1991 (in the case of Mr. Hudson) and 20 March 1991 - 21 March 1991 (in the case of Mrs. Hudson). Yet the evidence disclosed that Mrs. Hudson never became aware of the involvement of Mrs. Murphy prior to 5 April 199 and that Mr. Hudson only became aware on or before 28-29 March 1991 (AB 200.3.30) and possibly not until 4 April 1991 (AB 201.5). There were no acts of ratification pleaded by the Appellants subsequent to Mr. Hudson becoming aware of the role of Mrs. Murphy and prior to termination of the contract.”

85 In the circumstances, it seems to me that, the First Respondents having consciously adopted a stance of supporting the case which had successfully been raised by the Second Respondents at trial, it would be wrong now - almost 4 years from the date on which Windeyer J delivered judgment and over 3 years since the Appellants’ Notice of Appeal was filed - to relieve them of the consequences which flow from that decision. 86 So far as Mason P’s observations as to the extent of the Court’s powers under s.75A(10) of the Supreme Court Act 1970 are concerned, I would take leave to doubt whether they are as extensive as his Honour suggests, as also do I doubt whether the authorities to which he refers establish that that is so. Quite apart from the fact that the relevant passage in the Judgment in Hanson v. Wearmouth Coal Co. Limited [1939] 3 AER 47,55 is obiter, each of that case and Castellan v. Electric Power Transmission Pty. Limited (1967) 69 SA 159 was a case in which a plaintiff, who had sued as concurrent tortfeasors several defendants - who had sought to recover contribution from each other - and who, having recovered a verdict against one only did not appeal against the verdict for the other; this fact notwithstanding, it was held that it was open to the unsuccessful defendant to seek to prosecute, on appeal, its claim for contribution from the successful defendant. Helicopter Sales (Australia) Pty. Limited v. Rotor-Work Pty. Limited (1974) 48 ALJR 390, while not involving several defendants, involved a third party claim by the repairer of a helicopter, which had been sued for breach of contract, against the supplier to it of a defective part, for indemnity against any damage for which it might be held - as it was at trial held - liable to the helicopter owner. Quite apart from the fact that no objection was taken to the competency of the third party’s appeal against the plaintiffs verdict against the defendant, an order had earlier been made pursuant to the provisions of the Supreme Court Rules (Q) granting to the third party leave to defend the plaintiff’s action, which fact entitled the third party to appeal against the judgment in favour of the plaintiff against the defendant (cf In re Salmon; Priest v. Uppleby (1889) LR 42 Ch D 351; Asphalt and Public Works Limited v. Indemnity Guarantee Trust Limited [1969] 1 QB 465, 471 as to the position of a third party in a case in which he has not been given leave to defend the plaintiff’s action against the defendant). Lest my reservations as to the extent of this Court’s powers under s.75A of the Supreme Court Act 1970 be thought unjustified, I would merely refer to the decision of the Court of Appeal in The Millwall [1905] P 155, to the views expressed by Taylor J CLR 94, and the orders made CLR 95 by the High Court, in Unsworth v. Commissioner of Railways (1958) 101 CLR 73Imperial Chemical Industries of Australia and New Zealand Limited v. Murphy (1973) 47 ALJR 122, 123 as to the procedural regularity of the course which had earlier been taken by the Court of Appeal in that case, and to the Judgment of this Court in Berkeley Challenge Pty. Limited v. Potbury 18 December 1997 (unreported). 87    However, it will be apparent from what I have earlier written, that it is my view that, even if the powers of the Court are as extensive as Mason P would have them to be, it would, in the circumstances of this case, be unjust now to exercise them in favour of the First Respondents in the way which his Honour proposes.

*****