Bremner v Sinclair (No 2)

Bremner (the appellant) sought to set aside earlier orders of the Court of Appeal. The dispute concerned the extent to which an appellate court could entertain a fresh point of law not raised at trial, particularly where its consideration might have led to the adduction of evidence that would have defeated the point. The appeal was heard by Mason P, Meagher and Powell JJA.

The central legal issue before the Court of Appeal was the scope of an appellate court's duty to address new questions of law that arise upon facts which are either admitted or proved beyond controversy. This involved determining whether the appellant should be precluded from raising an alternative point on appeal, given that its introduction at trial might have allowed the opposing party to present evidence to counter it.

The Court considered the principles governing the introduction of new arguments on appeal. It acknowledged that while appellate courts have a broad discretion to entertain new points, this discretion is not unfettered. The Court reasoned that where the introduction of a new point at trial would have fundamentally altered the nature of the proceedings and allowed for the presentation of evidence that could have resolved the issue differently, an appellate court should be cautious in entertaining such a point on appeal. The Court emphasised that the capacity to raise an alternative point should be limited where its consideration would be unfair to the other party, particularly if that party was denied the opportunity to present relevant evidence at the original hearing.

The Court ordered that the parties were to bring in Short Minutes within 14 days.