Brown Falconer Group Pty Ltd & Anor v South Parklands Hockey and Tennis Centre Inc & Ors

[2006] HCATrans 55

[2006] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A40 of 2005

B e t w e e n -

BROWN FALCONER GROUP PTY LTD

First Applicant

C E SERVICES PTY LTD

Second Applicant

and

SOUTH PARKLANDS HOCKEY AND TENNIS CENTRE INC

First Respondent

PULTENEY GRAMMAR SCHOOL

Second Respondent

ADELAIDE HOCKEY CLUB INC

Third Respondent

THE VETERANS TENNIS ASSOCIATION INC

Fourth Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 FEBRUARY 2006, AT 12.42 PM

Copyright in the High Court of Australia

__________________

MR D.A. TRIM, QC:   May it please the Court, I appear with my learned friend, MR J.E. LUNN, for the applicants.  (instructed by Rowell Forrest & Co)

MR P.A. McNAMARA, QC:   May it please the Court, I appear with my learned friend, MR J.P. DE RUVO, for the respondents.  (instructed by Phillips Fox)

GUMMOW J:   Yes, Mr Trim.

MR TRIM:   The essence of the applicant’s case is that it conducted the trial on the basis of pleaded issues.  The Full Court had proceeded of its own motion to assess damages on a different basis, namely, wasted expenditure, a basis of assessment of damages never adopted by the respondents, even when the topic was raised in the Full Court.  In the applicants’ submission, the approach of the Full Court has produced ‑ ‑ ‑

GUMMOW J:   Is the complaint essentially a denial of procedural fairness by the Full Court?

MR TRIM:   Yes, it is, your Honour.  That is the special leave point.  There is no contest about the fundamental issues that are at the heart of the applicants’ case.  In the applicants’ summary at paragraph 2.6, which is to be found at page 171 of the application book, it is asserted that the respondents did not plead or seek to put at trial a case based on wasted expenditure.  That is admitted in the respondents’ outline at the top of page 183 of the application book, paragraph 26.2.  In particular, in respect of that issue, it is asserted in paragraph 5 of the respondents’ outline that there was a claim for general compensatory damages.

GUMMOW J:   What do you say about the Full Court’s second decision, the one of 4 August 2005, at page 162, paragraph 15 of the application book?

MR TRIM:   Is your Honour in particular directing my attention to the comment that “counsel for the appellant was given a full opportunity” ‑ ‑ ‑

GUMMOW J:   You are complaining about lack of procedural fairness.  What I am putting to you is they seem to have taken those matters on board.  There was an application to reopen.

MR TRIM:   Yes, because it was put to the Full Court that procedural fairness had occurred because the Full Court had relied upon evidence led for quite different and discrete purposes at the trial in respect of an unpleaded issue and during the course of argument before the Full Court the Full Court of its own motion raised the question, was there sufficient evidence to enable an assessment to be made on this unpleaded and unargued basis?  The response was, no, there was not, because if the matter had been properly pleaded and agitated before the trial judge there was other evidence that would have been sought to have been led that was not led and we have identified ‑ ‑ ‑

GUMMOW J:   Let us just be clear about this.  The Full Court caused a letter to be sent on 5 July.  They received further written submissions on the 14th from your side, I guess, is it?  They sat on the 26th and neither party sought to make any further oral submissions on that topic?

MR TRIM:   That is correct.  We were head but, in our submission, whatever occurred at the Full Court level could not undo the injustice that had been done.

GUMMOW J:   So the denial of procedural fairness is not quite the accurate way to put it; it is error by the Full Court in its treatment of the material put before it on the reopening application, is it not?

MR TRIM:   Yes, I accept that is perhaps a more accurate way of putting the proposition.  The material put demonstrated, in our submission, that although there was some evidence that was led in respect of the issue of use of the pitch – and that is what we are talking about, whether the pitch had a useful life in the 10 years or so that it had been used by the three respondents.  Evidence was led – and this is in fact an admitted issue on the applicants’ outline. 

At paragraph 2.9 of the application book at page 172 we put a series of propositions in a negative.  Evidence was not called at the trial to address whether payment to construct the existing pitch was wasted expenditure or, if so, it should be offset against subsequent use, thus identifying the absence of relevant evidence at the trial and, of course, the absence of relevant evidence that could be taken into account by the Full Court when it decided of its own motion to entertain a claim on an unpleaded basis.  Then, most importantly, we say in that paragraph there was evidence of the use of the existing pitch confined to the pleaded topics of damages for loss of use of the pitch during reconstruction and general loss of enjoyment, and there follow the transcript references. 

That was the sole extent of the evidence, but it was in particular led, as is asserted in that paragraph, for a confined issue, issues relevant on the pleadings.  This is not a contested issue because in respect of this submission in the respondents’ outline they simply take issue with the legal definition of what is wasted expenditure.  So thus we have, it is common ground, that evidence of a limited nature and for a specific purpose taken at the trial was applied by the Full Court for another purpose in circumstances where the Full Court received a submission that this was not all of the evidence, in any event, putting to one side that the evidence was taken for another and limited purpose.

There was a considerable body of further evidence that was identified to the Full Court, and we have attempted to identify in the outline to this Court, that could and would have been led.  The procedural unfairness arises from the conduct of the trial, that is, by the applicants being held out of the opportunity to adduce that evidence and being caught by surprise on appeal by the topic being introduced by the court of its own motion and the Full Court acting on this evidence when it had received a submission that there was a further body of evidence to be led but that was not led.

The point I was attempting to deal with when I turned to deal with your Honour Justice Gummow’s query was that there was – it is a submission, rather, of the respondent that there was a claim for general compensatory damages.  That is not so.  There is no such claim.  So much is plain from the pleadings.  The claim was confined to the cost of rectification of the pitch and several quite specific subheadings of damages which are – and that is to be seen in the pleadings which appear – or, rather, the particular paragraphs of the pleadings, paragraph 61 – I should go back to paragraph 49 at page 38, at the very bottom of the page – I will not read the whole paragraph:

The plaintiffs have suffered loss and damage as a result of the breach of contract . . . Particulars of the loss and damage [are] set out ‑

Then we turn to paragraph 53 which sets out the claim for remedial work.  That plea goes on for all of pages 40 and 41 of the application book on to the next page and finishes part way down page 43 of the application book.  Then the claim for damages is summarised in paragraph 61(1), “it does not provide a true playing surface”.  Then, further, on page 45 the detail of remedial cost which is set out extending over to page 46, but then the only other claim for damages that appears in the pleadings is the claim for costs that would be incurred for hiring alternative facilities for each of the entities appearing in the subparagraphs of 61.3.  There was no claim for general compensatory damages.

CRENNAN J:   Just focusing for a minute on the wasted expenditure head of damage, what was sought to be done, was it not, was to have that amount discounted by reference to the past use of the pitch?

MR TRIM:   Not by the applicants.  We specifically put a case, at trial and on appeal, that the respondents never claimed for wasted expenditure.  We identified that as a matter of law – in the applicants’ contention, that was the proper and legitimate basis of a claim, but we were very keen to point out, both at trial and on appeal, that was not the respondents’ claim.  It has been said in the respondents’ outline that the issue was agitated by the applicants; hence, it was appropriate to consider it.  That is not so.

All that the applicants did, to paraphrase the judgment of the Chief Justice and Justice Heydon in the decision of Suvaal v Cessnock City Council at paragraph 27 – I do not ask the Court to turn it specifically; it is a very short point – is that the applicants were very astute and keen to rule out the issue, both at trial and on appeal.  That does not mean it became an issue, contrary to the assertion in the respondents’ outline.

CRENNAN J:   The Full Court said at application book 162 that they had gone back to the trial transcript in relation to the issue.

MR TRIM:   Yes, they did, but the relevant transcript pages appear in the application book starting at page 69 extending through to page 74 where – and this is the effect of the exchanges that occurred – every time counsel for the respondents sought to agitate a matter that was not raised on the pleadings, objection was taken, repeatedly.  Eventually, if we follow through, in particular some of the items of damage that were sought to be justified by the questions to which objection was taken is a loss of income head.  For example – and I go to it by way of example only – at page 70 of the application book there is a question at line 15:

Q.       Did the club receive match fees for that use.

OBJECTION:  MR TRIM OBJECTS.

Then the basis of the objection is stated:

MR TRIM:      I object to the question for the same reason.  The pleading referred to, in my submission, does not [embrace] –

and then his Honour interrupted.  It goes on and finishes with a passage on page 74 where again, starting at the foot of the previous page, the witness was asked some questions to found an unpleaded head of damage.  Again objection was taken at the top of page 74.  The evidence sought to be led is identified, or the purpose of it is identified at lines 6 and 7:

It is part of . . . a claim for general damages, for loss of enjoyment –

I will not read the rest of the passage out, but that was an unpleaded claim, so that at all materials times – or throughout, rather, and consistently, I should say, the applicant was astute to keep the respondents to their pleaded case.  The respondents sought, against the face of all interjections, throughout the trial, only to put the case on the limited basis identified by his Honour in his judgment – that is the trial judge in his judgment at paragraph 93, page 98 of the application book, where his Honour says:

The plaintiffs do not seek to recover their wasted expenditure.

In our respectful submission, nothing could be clearer.  Indeed, the Full Court at page 153 recite at about line 7:

The respondents’ case for damages was not put forward at trial or on appeal on the basis of wasted expenditure.

We have given the reference to the decision of ‑ ‑ ‑

CRENNAN J:   Then it goes on:

However, the evidence relevant to such a claim was before the court –

and the trial judge seemed to deal with all of those objections based on the pleadings on the basis that it was possible to see wasted expenditure as an item of consequential loss.  That was his basis for overruling the objections, was it not?

MR TRIM:   No, with respect, it was not.  His Honour was perplexed and, if I may say so, unhappy about the evidence that was being sought to be led by ‑ ‑ ‑

GUMMOW J:   How long did this trial go on?

MR TRIM:   About 10 days, give or take a day, your Honour.  I should add that at the beginning of the trial pleas founded on misrepresentation issues were abandoned by counsel for the respondents.  Their plea is to be found at pages 43 and 44 of the application book.  But it was specifically abandoned, and that is recited at the beginning of his Honour’s judgment.  But, with respect, in relation to the query last put to me – and this comes back to the significance of the fact that the submission put in paragraph 2.8 of the applicants’ outline is not disputed – the evidence was led, and it was limited evidence for a specific purpose, and we have identified, I repeat, both to the Full Court and to this Court, broadly speaking, the topics that would have been sought to have been agitated in evidence had the matters that now formed the basis of assessment been pleaded and agitated, in particular in respect of the query raised with me as to the basis on which his Honour dealt with objections. 

Can I go to page74 of the application book at a point where further objections were taken.  His Honour says at line 23:

Well, I think at this stage all I can do is allow the evidence to proceed de bene esse, and see what it involves Mr Trim.  It’s difficult to rule in advance until we hear the nature of the evidence . . . Your attention must be drawn ‑ ‑ ‑

CRENNAN J:   I see, yes.

MR TRIM:   We have, going back to the point I touched on a moment ago, at pages 174 and 175 of the application book, identified the topics that would have been sought to have been agitated, both by oral evidence and by proper discovery, and discovery in respect of the issues flagged in these paragraphs, in particular at paragraphs 4.1.5 to 4.2 on page 175 of the application book.  No discovery was ever given of documents relevant to these issues.  His Honour said, it is true, at trial, the purpose for the building of the pitch was not achieved, but there was no exploration of what the real purpose of the erection of the pitch or the construction of the pitch was.  As we have identified in paragraph 4.2.1 ‑ ‑ ‑

GUMMOW J:   What is the sum of money involved and the difference between the awards?  You lost how much as a result of this?

MR TRIM:   In round figures, with interest, $630,000‑odd.

GUMMOW J:   As against?

MR TRIM:   Nominal damages, as the applicants would have it.  There were some agreed small items of damage, admittedly, some tens of thousands only.  Otherwise it is the applicants’ contention that, given the way in which the respondents elected to conduct their case, no damages other than the nominal damages are allowable, the respondents not having elected to pursue the only legitimate base, consciously electing not to pursue the only available substantive basis of damages available to them, being on full warning that this was the case.

CRENNAN J:   When the Full Court gave the opportunity for further submissions to be heard – written submissions to be received and oral argument to be heard – in relation to raising the matter, was the question of the need for further evidence raised with the Full Court?

MR TRIM:   Yes, it was raised by us before the Full Court on each occasion when the matter came back on the reopening application.  I identified, in broad terms, much as we have here on page 175, the type of evidence that would have been relevant that was not adduced and not adduced because of the way in which the respondents conducted their case.  In the face of that submission, and contrary to it, or placing, with respect, no appropriate weight on it, the Full Court said, “Well, we think all the evidence was there”, when, in our submission, it was plainly not.

The unfairness arises, in our submission, from what occurred at the trial.  It is the conduct of the trial that must bind, in our submission, the respondents.  For the Full Court to come along, as it did, of its own motion, and to select some evidence, which is now admittedly led for a specific and limited purpose, and to apply that across the board to an unpleaded head of damage has resulted in the injustice of which we complain.

CRENNAN J:   But it is more the omission of evidence that has not been led to supplement the evidence that was already there for another purpose is the real gravamen of your complaint, is it not?

MR TRIM:   It would not have simply supplemented it, with respect, your Honour.  It would have been additional and quite discrete different evidence.  The evidence that was led, as far as it went, did touch upon loss of use but it only went a limited way and was led primarily to establish the claim for inconvenience due to erratic ball bounce, which is an entirely different issue to addressing the question, “What value did you get for your expenditure of some $600,000 on this pitch, bearing in mind that it has been in use for some 10 years?”  There was limited evidence as to its use.  But that was all and it would have been much more explored, as we have identified, and will identify most importantly to the Full Court had the opportunity arisen if the case had been conducted by the respondents on the

only legitimate basis available to them.  I see I am out of time.  If the Court pleases.

GUMMOW J:   Yes, Mr McNamara.

MR McNAMARA:   Thank you, your Honour.  Your Honours are aware that the applicants propose to raise only one special leave question and that, as your Honour Justice Gummow identified, is the question of procedural fairness or natural justice.  Your Honours would, however, have noticed a paradox in the applicants’ case, that they were given an opportunity by the Full Court on the second hearing to remedy the lack of procedural fairness agitated by the applicants.

The Full Court heard the applicants at the second hearing.  They were given an opportunity to describe to the Full Court at the second hearing what evidence they wished to adduce.  The Full Court held that in the circumstances ‑ ‑ ‑

GUMMOW J:   Where do we actually see that chance to adduce this further evidence?

MR McNAMARA:   I am not sure that your Honours have all the material in the application book, but if your Honours start at page 122 there is in fact a submission of Mr Trim to the Full Court which torpedoes his own application today.  Do your Honours have page 122?

GUMMOW J:   Yes.

MR McNAMARA:   At the beginning of the page your Honours have the tail end of a submission put to Mr Trim.  If your Honours begin at line 3, your Honours see that Mr Trim is putting to the Full Court – and this is the second Full Court:

The school uses it continually for both tennis and hockey including competition in both sports.  The hockey club has used it for competitive purposes continually, so has the tennis club –

Your Honour, that submission was borne out by the evidence at the trial, although there is no express finding by the trial judge to that effect.  Your Honours will see that the applicants are blowing hot and cold but they blew hot and cold in the Full Court on the second hearing.  In the one breath they put to the Full Court that the pitch was used continually by my clients.  In the other breath they want to say they want to adduce more evidence of use by the respondents.  Given that the material adduced before the trial judge shows continual use by all three respondents, the evidence cannot go any further.

The second point, your Honours, is this, that the purpose for which this evidence is sought to be adduced is, as your Honour Justice Crennan identified a few minutes ago, for the purpose of persuading the Full Court that there should be a discount from the damages.  The underlying contention, as we would describe it a misconception, of the applicants is that if the respondents made any use of this pitch then their damages are to be abated.  If your Honours would just keep 123 open, your Honours will have seen from the applicants’ summary of argument that the proposition that underpins the application for special leave – if it please the Court, page 174 in the application book, paragraph 4 – the proposition that underpins the application for special leave is that for the purposes of the rules as to compensatory damages, wasted expenditure has a particular narrow meaning.  I will just wait for your Honours to read paragraph 4.

GUMMOW J:   Yes.

MR McNAMARA:   It culminates, as your Honours see, in paragraph 4.1.6, that the expenditure was not altogether wasted.  Now, the proposition of law which the applicants must make good before there can be said to be any procedural unfairness is that where the aggrieved plaintiff makes any use of the asset which is impaired as a result of the negligent advice, that use is somehow to be valued and the damages reduced.  There is not a single ‑ ‑ ‑

GUMMOW J:   To nil.

MR McNAMARA:   Nil, because, as Mr Trim put to the Full Court time and time again, beginning at 122, if your Honours please, to go back to that, there was continual use.  Now, if there is continual use, your Honour Justice Gummow is absolutely right to say there can be no damages, because there has been no waste in the grammatical meaning of the word.  But your Honours know that when, in the law of damages, for example, in Amann Aviation, this Court spoke about wasted expenditure, it simply means the moneys outlaid by the aggrieved party on the basis of the negligent advice. 

Now, in this case your Honours have concurrent findings of fact below to the effect that the pitch was specified to international standard.  It was not suitable for that purpose.  Your Honours have the very explicit findings of Justice Debelle about ball bouncing.  None of that is challenged now and, indeed, it was not challenged before the Full Court.  But can I at that point digress, because the very specific findings which his Honour the trial judge made about ball bounce derived from the very evidence that Mr Trim was talking about at 122 of continual use, because it was only by continual use and the evidence of it that his Honour found that it was wholly unsuited for its purpose. 

So, your Honours, the two answers that we make in essence to Mr Trim’s underlying point is that on his own submission to the Full Court, and it is true, the evidence showed continual use.  There is no point in adducing any more evidence because use cannot be any more than continual.  Secondly, the evidence which he wishes to adduce is to be elicited for a misconceived purpose.  So they are the two short submissions, your Honours, we put in answer to the application.

GUMMOW J:   Thank you.

MR McNAMARA:   Both the trial judge and the Full Court held that the respondents were entitled to substantial damages.  His Honour the trial judge gave us damages on the basis which we now accept was wrong.  It was too favourable.  That was the rectification basis.

GUMMOW J:   There was some change, was there not?

MR McNAMARA:   I will have Mr De Ruvo check it, your Honour.  I was not involved below, but my understanding is that damages were reduced by about $200,000 in favour of Mr Trim.

GUMMOW J:   Yes, that is what I thought.

MR McNAMARA:   Thank you, your Honour.  Now, we accept that, but the simple fact is, as his Honour Justice Duggan said in the Full Court, that in a case like this the assessment of damages for wasted expenditure is a relatively simple exercise.  Your Honours will have seen that the Full Court started with, if I might call it the debit item, the contract price to build the pitch – about 601,000.  The first of Mr Trim’s clients had admitted that contract price in its defence, so that was not a fact in issue.  That was the gross amount of our damages. 

As your Honours have seen from that gross amount, their Honours in the Full Court reduced the claim to reflect the fact that part of what we paid for, pursuant to the construction contract, was useful and we got value for our money.  So that we ended up with a little over $400,000 of a contract price of 600,000.  But, your Honours, the Full Court was absolutely right to say…..of this kind, negligent advice, the assessment of wasted damages was a simple matter.  All the material was there.  There is no complaint in the application book about the substantive assessment. 

Now, your Honours, in my submission, the application for special leave is completely misconceived.  On the rehearing application – your Honours have the second supplementary application book?  This goes back to the question that your Honours posed a few minutes ago.

GUMMOW J:   Yes.

MR McNAMARA:   It is the thinner book.

GUMMOW J:   Yes, we have.

MR McNAMARA:   Beginning at page 195.  This is the transcript, if it please the Court, of the second hearing before the Full Court on the application of the present applicants in August last year.  The presiding judge, Justice Duggan, at 195, line 6, put to my learned friend:

You have to explain to us the circumstances in which you say you were treated unfairly in the sense that you would have conducted your case in a different way and called other evidence.

Mr Trim at line 10 said he would come to that.  Now, the transcript is relatively lengthy, but your Honours will see that from that point on Mr Trim identified categories of documents that he would want to seek on further discovery, but the underlying thrust of the submission emerges in two places.   I take your Honours forward first to 196 at line 33 where your Honours see a sentence referring to some evidence before Justice Debelle:

the thrust of this passage is the club had used it for its inter‑club activities continually since 1995.

Again, the Full Court is being told there was continual use.  At 198 ‑ ‑ ‑

GUMMOW J:   Yes, but just read on, 196.

MR McNAMARA:   Yes, indeed, your Honour.

GUMMOW J:   It said it was for one purpose, not another, and the trouble is once it is in, it is in.

MR McNAMARA:   Indeed, that is so.  That is so, your Honour, and there is no complaint, as your Honours have seen, about the use to which the trial judge put any of this evidence and there is no substantive complaint about the use to which the Full Court put it.  Now, I was taking your Honour to 198 at line 2 where Mr Trim puts to the Full Court that the purpose of his cross‑examination, which I accept:

was to establish that notwithstanding the unsatisfactory nature of the surface, it was in fact usable, [and] had been used –

Now, Mr Trim was then taken by his Honour the presiding judge, at 199, line 11 to what might be called the critical issue for the purpose of his present complaint.  The presiding judge, Justice Duggan, put this to Mr Trim at line 11 on 199:

But it was an issue at the trial, wasn’t it, Mr Trim, the question of whether they had use, what use they had, the quality of that use?  The trial judge dealt with it in his judgement.  I seem to recall that you spent some time on that issue before us on appeal as being relevant to the question of the damages as assessed by his Honour.

Mr Trim’s answer is a long one but it starts with the two sentences:

Only the quality of the use.  The quality of the use –

There is one more passage before I take your Honours to a question put by Justice White.  If your Honours would go to 203, your Honours have at line 16 a long answer from Mr Trim:

Not when it is not and never has been . . . But the evidence insofar as it went, showed, [led] as I’ve tried to explain for another purpose, showed that the pitch was in regular use.  That’s not to say or that does not found a claim for wasted expenditure.

But that’s all well and good, the fundamental point is, in our submission, the plaintiffs made their choice, elected to lead no evidence to establish wasted expense –

Then their Honours in the Full Court, going forward to page 206 – page 206 his Honour Justice White at line 22 put this to my learned friend:

During the course of the argument on the appeal, you were asked specifically that if the case had been presented on the basis of wasted expenditure, is there anything else that might have been pursued and you didn’t nominate these things which you are now nominating?

Now, your Honours in fact have a transcript of that question in the original Full Court hearing at 134 in the other book, but your Honours do not need to go back to that.  His Honour Justice White taxed Mr Trim with that question and with the further question at line 33:

The question was this in relation to the topic of wasted expenditure, is there any difficulty about an assessment on this basis, is there

really anything else that might have been pursued.  Not on the opportunity of going elsewhere but the opportunity of spending money or not spending it.  I won’t go to the answer –

his Honour then changed his mind –

or your answer was if the advice had been non‑negligent, that is appropriate advice, money wouldn’t have been spent and then it went on.

Now, having been taxed with that question, my learned friend could not point the Full Court to any specific evidence or information that he wished to adduce or any specific fact that he wished to prove and would prove on a further assessment.  What your Honours do know is that the applicants do not want a fresh assessment.  The applicants want an award of nominal damages and their position – your Honours will have seen from the reasons of the Full Court that the applicants admitted liability.  They admitted liability on the eve of the trial.  When they admitted liability, their clear position was, “You, the respondents, the present respondents, are entitled only to nominal damages”, and that remains their position.

It was the applicants’ position before the trial judge from the very outset that the plaintiffs were proceeding on the wrong basis.  It was the present applicants who put before the trial judge that the proper measure was the wasted expenditure method.  The applicants were alive to that point when the trial started.  The applicants knew that general compensatory damages are, up to a point, at large.  They ran the risk of not adducing specific evidence in support of the contention which they now wish to advance. 

In my submission, your Honours, given that there is no substantive challenge to the award that the Full Court has made – indeed, it is the very award the applicants sought – given that there is no specific challenge to the method of rehearing by the Full Court, there is simply no substance in the applicants’ submissions and the application for special leave should be refused.  Those are my submissions.

GUMMOW J:   Yes, thank you, Mr McNamara.  Yes, Mr Trim.

MR TRIM:   Your Honours, it is not, as is being contended by my learned friend, the applicants’ position that as a general proposition if an asset of this nature is used then damages should be reduced to a negligible or nominal amount.  It is only the consequence of the failure that has the consequence here, as the applicants contend, of the manner in which these respondents elected to conduct their case and it is not a broad proposition that has been asserted. 

It has been said that when taxed by a question by Justice White, at page 208, I did not respond by identifying to the Full Court the types of evidence, the categories of evidence that would have been sought to be led by my client.  Not so.  I had done it some pages earlier, starting at the foot of page 204 at about line 27 continuing for all of page 205 and on to page 206.  I will not read the passage – it is too long and time does not permit – but I identified before the Full Court the sort of evidence that would have been led had it been appropriate – had, rather, the claim been articulated, as it never was, as a claim for wasted expenditure. 

Can I take the Court to two passages in the cases that appear in the applicants’ book of authorities, firstly, in the decision of Whisprun v Dixon which appears under tab No 4.  I will just read the relevant part in paragraph 51 in the judgment of the Chief Justice, Justice McHugh and your Honour Justice Gummow, four lines into the paragraph:

Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly –

and I emphasise the words “might possibly” –

have been met by rebutting evidence or cross‑examination. 

That is the case here.  Further, in respect of the last point made by my learned friend as to the ability of the applicants to indeed raise the issue, if I can take, by way of response to that, your Honours to the passage in a judgment of Justice Callinan in the decision of Suvaal v Cessnock Council which appears under tab 3 in the book of authorities.  At the last page in the section of the judgment that is repeated or copied in the book, paragraph 150:

A further submission that the appellant made was that it was not his fault that the respondent did not explore at the trial the ramifications of a finding of loss of concentration by the appellant.  The submission must be rejected.  It was precisely because the appellant did not claim, indeed because he asserted the contrary of, a loss of concentration, that these were not explored.

That is precisely why there was no obligation upon the applicants to explore the issue that they had identified as being the proper basis of assessment.  Finally, if I can take your Honours in the same judgment to the passage in the judgment of Justices McHugh and Kirby at page 34, paragraph 102, which is entirely, in our submission, apposite to what has occurred in this case.  At the foot of the page:

If a party participates in a trial to meet a particular case which that party has pleaded and presented in only one way, it would be unfair to the other party to decide the case on a different basis of which the losing party had no fair notice and which it had no proper opportunity to defend.

That is this case.

Although rigid adherence to pleadings is no longer uniformly practised and not a few cases stray from the pleadings without consequential amendment, such practices cannot excuse procedural injustice.  It is elementary that a party is entitled to know the issues of fact that are to be decided in a trial where these are determinative of its success or failure.

Finally, in respect of a matter that was raised at the opening of my learned friend’s submissions, there was never an opportunity given by the Full Court to call further evidence at a trial level.  It was only the opportunity given to identify passages of evidence that were led at the trial and no more, and taken on a different basis.  In respect of the comment made by your Honour Justice Gummow, of course, that evidence is in, it is in for all purposes, it was in here because of the specific terms of the pleadings.  It is the pleadings that govern the conduct of the trial, in our submission.  May it please the Court.

GUMMOW J:   The issues the applicants seek to raise in this Court turn upon the conduct by the parties of the trial and of the Full Court appeal.  There are insufficient prospects of success in demonstrating error by the Full Court in its treatment of the applicants’ application to reopen to warrant a grant of special leave by this Court.  Accordingly, special leave is refused with costs.

AT 1.26 PM THE MATTER WAS CONCLUDED