Canale v G W & R Mould Pty Ltd

In the case of Canale v G W & R Mould Pty Ltd, the dispute revolved around whether the applicant had successfully raised a new argument on appeal that could be considered under the principles established by the High Court in Coulton v Holcombe and the Victorian Court of Appeal in Harplex Pty Ltd v Konstandellos. The applicant sought to introduce a new argument on appeal, and the primary issue before the court was whether there were exceptional circumstances that would allow this new argument to be heard. Additionally, the court had to determine if the new point could possibly have been met with evidence that was available during the trial.

The court, in considering whether the new argument could be raised on appeal, assessed whether there were exceptional circumstances as per the precedents set in Coulton v Holcombe and Harplex Pty Ltd v Konstandellos. The court examined whether the new argument had a reasonable prospect of success and if the failure to raise it earlier was due to circumstances beyond the applicant's control. Furthermore, the court assessed whether the new argument could have been supported by evidence that was available at the time of the trial. The applicant needed to demonstrate that the argument was both meritorious and could have been met with evidence presented during the original proceedings.

The court concluded that the applicant did not establish the exceptional circumstances necessary to permit the introduction of the new argument on appeal. The court found that the new argument did not have a reasonable prospect of success and could not be met with evidence that was available at the time of the trial. The court held that the applicant's failure to raise the argument earlier was not due to exceptional circumstances but rather a tactical decision. Consequently, the court dismissed the appeal, upholding the original decision.

The court's final orders were to dismiss the appeal, with each party to bear their own costs of the appeal. The court emphasized that the exceptional circumstances required to permit a new argument on appeal must be clearly demonstrated and that such arguments cannot be based on speculative or retrospective evidence.