Coulton v Holcombe

[1986] HCA 33

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson, Brennan, Deane and Dawson JJ.

COULTON v. HOLCOMBE

(1986) 162 CLR 1

19 June 1986

Appeal

Appeal—Exercise of discretion by appellate court—Ground of appeal added by amendment—Allegation of technical invalidity—Effect of seeking new trial on different issue—Interests of justice—Limited public interest—Supreme Court Act 1970 (N.S.W.),s. 75A(6).

Decisions

GIBBS C.J., WILSON, BRENNAN AND DAWSON JJ.: This is an appeal from an interlocutory judgment of the Court of Appeal of the Supreme Court of New South Wales allowing an issue to be raised for the first time on the hearing of an appeal and further evidence to be received.

2. In the New South Wales Government Gazette No. 101 of 30 July 1982, a Notice under the Water Act 1912 (N.S.W.), as amended, ("the Act") was published. So far as material, the Notice read:

"NOTICE is hereby given that as the Water Resources Commission is satisfied that each water source listed in the Schedule hereto is unlikely to have more water available than is sufficient to meet the water allocations of holders of existing licenses, group licenses and authorities and the requirements of all other users lawfully authorized to take water from each said water source the Commission pursuant to section 20Y(1) of the Water Act, 1912, hereby declares that on and from the thirtieth day of July, 1982, and except as provided in section 20Y(2) no further applications for licenses, group licenses and authorities ... will be granted on or pertaining to each said water source until the revocation of this notice is published".

Among the water sources listed in the Schedule was one described as the "Severn River, from the upper limit of Pindari Dam storage downstream to Macintyre River". We will refer to this water source as "the Severn River Source".

3. Both the appellants and the first respondents are landholders in the Northern Rivers District of New South Wales in the vicinity of the Severn River. The first respondents are members of the Whalan Creek Water Users' Association, drawing water from Whalan Creek. In August 1979 they applied to the Water Resources Commission ("the Commission") for a licence under s.10 of the Act permitting the diversion of water from the Macintyre River to augment the supply of water in Whalan Creek. On 4 February 1983 they made another application dated 26 January 1983, purportedly under s.20 of the Act, for an authority for a joint water supply scheme. This later application was processed by the Commission as an amendment to the original application of August 1979. It was advertised, objections were received from a number of persons including the appellants, and in due course the Local Land Board for the Land District of Warialda commenced a public inquiry into the application. The inquiry was later adjourned pending the outcome of proceedings instituted in the Supreme Court by the appellants. In those proceedings, the appellants sought relief, inter alia, as follows:

1. A declaration that the application dated 26 January 1983 was made contrary to s.20Y of the Act;

2. A declaration that the application was not an amendment of the original application made in 1979;

3. An order restraining the Commission from proceeding further with either application.

It is unnecessary for the purpose of resolving the issues that are now presented in the case to describe in detail the distinction between an application under s.10 of the Act and an application under s.20. It is sufficient to say that s.10 contemplates that an application for a licence may be made by an occupier or occupiers who propose to construct or use any work not being a joint water supply scheme for the purposes of water conservation, irrigation, changing the course of a river and other purposes. Section 20 provides that a number of occupiers may seek an authority to construct and use a joint water supply scheme. Upon an application being made under either section, the Act provides for the Commission to advertise the application and gives objectors the opportunity to come forward. In circumstances which differ slightly in each case, the Commission is required to arrange for an inquiry to be conducted: ss.11, 20A. The application made by the first respondents in 1979 was not advertised and the Commission did not take any formal action in relation to it. However, there were lengthy discussions between the applicants and Commission officers concerning the question whether an application under s.20 in respect of a joint water supply scheme was more appropriate in the circumstances.

4. At the trial before Lusher J., the issues were clearly drawn between the parties. The appellants argued that the applications under ss.10 and 20 respectively were completely different and gave rise to different rights and considerations. The application under s.10, assuming its validity when made, was never proceeded with and had lapsed. In any event, neither application could be dealt with because of the declaration made in accordance with s.20Y and published on 30 July 1982. The first respondents joined issue on these arguments. They conceded that the s.10 application had not been advertised. However, they relied on the fact that the discussions with Commission officers were followed by a s.20 application which was accepted and processed by the Commission to support an argument that the s.20 application was an amendment of or otherwise formed part of the original application. As such it was not affected by the declaration made under s.20Y.

5. There was no suggestion at the trial that the s.20Y declaration was not a valid exercise by the Commission of the powers conferred upon it by the Act. The case put by the first respondents depended entirely in the first instance on the success of their attempt to link the s.20 application with the earlier application under s.10. If that was accepted then the stage was set for an argument that on its proper construction the s.20Y declaration did not preclude the grant of the authority sought, it having been applied for in 1979, long before the operative date of the declaration.

6. The learned trial judge upheld the contentions of the appellants. His Honour stressed the distinction between a licence under s.10 and an authority for a joint water supply scheme under s.20 and found that everyone concerned was aware of the distinction from a very early stage. He held that there was no authority in the Commission to treat the application under s.20 as an amendment of the application under s.10. This conclusion led naturally to the finding that because the s.20 application was made subsequently to the declaration under s.20Y, the terms of that declaration precluded it from being granted.

7. The first respondents appealed to the Court of Appeal on 3 September 1984, listing seventeen grounds upon which it was said the trial judge had erred. The Notice of Appeal was amended pursuant to an order of the learned President on 23 October 1984. When the appeal came on for hearing on 25 June 1985, the first respondents applied to further amend the grounds of appeal by adding an eighteenth ground, which read as follows:

"That the Notice pursuant to s.20Y(1) of the Water Act published in the Government Gazette on 30/7/82 in so far as it related to the water source being the Severn River catchment therein described was invalid and inoperative because the Commission could not have been satisfied that the said water source was unlikely to have more water available than was sufficient to meet the water allocations of holders of existing entitlements and the requirements of all other users lawfully authorised to take water from the said water source".

The reason given for the failure to raise the question of validity at the trial was that the point had been overlooked. The Court of Appeal granted the application. In conjunction with an order allowing the enlargement of the grounds of appeal the Court of Appeal made consequential orders, including an order permitting the tender of further evidence, whether by way of an agreed statement of facts or otherwise. The hearing of the appeal was adjourned and thereafter special leave to appeal to this Court was granted.

8. It is common ground that the subject matter of the appeal is a discretionary judgment of an appellate court. Obviously, it is not to be disturbed lightly. The appellants accept that s.75A of the Supreme Court Act 1970 (N.S.W.), as amended, empowers the Court of Appeal to make the orders that are now under challenge. The provisions of that section correspond with the powers of the Court of Appeal in England and with the appellate powers of the Supreme Courts of other States. So far as material, s.75A reads as follows:

"(5) Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing.

(6) The Court shall have the powers and duties of the court, ... from whom the appeal is brought, including powers and duties concerning -

(a) amendment;

(b) the drawing of inferences and the making of findings of fact;

...

(7) The Court may receive further evidence.

(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.

(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.

(10) The Court may ... make any order, which ought to have been made or which the nature of the case requires".

9. It is submitted for the appellants that, notwithstanding that it is within power, the decision under appeal departs from long-established principles of great importance. It is necessary to recall some of those principles. The provision that "the appeal shall be by way of rehearing" is well understood, as Windeyer J. made clear in Da Costa v. Cockburn Salvage &Trading Pty. Ltd. (1970) 124 CLR 192, at pp 208-209:

"This does not mean that the appeal is a complete re-hearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing in the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred: see Attorney-General v. Birmingham Tame, and Rea District Drainage Board (1912) AC 788, at pp 801-802, and Attorney-General v. Vernazza (1960) A.C. 965".

See, also, Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73, per Dixon J. at pp 107-110. To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case 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, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at p 438; Bloemen v. The Commonwealth (1975) 49 ALJR 219. In O'Brien v. Komesaroff (1982) 150 CLR 310, Mason J., in a judgment in which the other members of the Court concurred, said at p 319:

"In some cases when a question of law is

raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh (1892) AC 473, at p 480; Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at p 438; Green v. Sommerville (1979) 141 CLR 594, at pp 607-608). However, this is not such a case. The facts are not admitted nor are they beyond controversy.

The consequence is that the appellants' case

fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial".

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decison of six Justices of this Court - University of Wollongong v. Metwally (No. 2) (1985) 59 ALJR 481, at p 483; 60 ALR 68, at p 71 - the Court said:

"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so".

10. The Court of Appeal recognized the great importance, in the public interest, of these principles. Their Honours summarized them in the following terms:

"the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court".

The Court then examined three countervailing considerations which it believed to be special to the case. The first was that the new issue touches upon the public law of the State because it involves the interpretation of a public statute, the powers of a statutory commission and the conduct of statutory office holders. The second consideration was that another appeal involving some, but not all of the landholders who are parties to the present action, had been listed for hearing. The appeal involved another water site but the same point might be raised. The principle favouring finality of litigation might therefore, so it was said, dictate an early determination of the issue. The third consideration advanced was that, being a matter of public law, the new issue involved not only the parties, the Commission and the Land Board, but the wider community, other landholders, the Executive Government and the Parliament, all of whom had an interest in the clarification of statutory duties and due observance of the law by statutory office holders. The case therefore differed from one of private litigation inter partes.

11. The Court of Appeal concluded that the interests of finality and justice, as well as due observance of the law by public officials, favoured the granting of the applications of the first respondents. Although in the course of argument in this Court attention was paid to the principles governing the admission of further evidence in a case such as this where the further evidence does not concern matters occurring after the trial, we do not find it necessary to consider those matters. It seems to us that provided the decision to open up the new issue can be supported as being within the ambit of a proper discretionary judgment, then the consequential decisions in relation to the admission of additional material which the parties think it necessary to have in order to determine the new issue could not be open to challenge. Of course, the need to gather further evidence which may give rise to further disputation is a matter which bears directly on the justice of the decision to allow the new issue to be litigated at the appellate stage.

12. It is necessary now to examine the considerations which moved the Court of Appeal. The first and third matters may conveniently be taken together. The Court emphasized the overriding importance of the public law aspects of the case as compared with the more private interests of the landholders actually involved in the case. Reference was made to the interest of the wider community in the clarification of statutory duties and the due observance of the law by statutory office holders. With all respect, it is impossible to reconcile this broad perspective of the matter with the actual ground of appeal. It alleges that the s.20Y Notice was invalid and inoperative in part - that is, in so far as it related to the Severn River Source - because the Commission could not have been satisfied that the water source was unlikely to have more water available than was sufficient to meet existing requirements. The resolution of the point does not call for the interpretation of the statute. It is unlikely to have any impact on the public other than a possible impact on those landholders who occupy land affected by the Severn River Source. The submission, as explained in the course of argument by Mr Ellicott for the first respondents, is that in assessing the total volume of water required to meet existing entitlements the Commission included the amount tentatively reserved for the first respondents. In making this provision the Commission was acting in the belief that an amended application from the first respondents would be made and that when made, it would result in the grant of an authority to the extent of the amount tentatively reserved. However, if the trial judge was correct in his findings, then it followed that the anticipated allocation to the first respondents of water from the Severn River Source could not be taken into account by the Commission in calculating existing entitlements. It follows, so the argument runs, that the Commission could not have been satisfied that the Severn River Source was unlikely to have more water available than was sufficient to meet existing requirements. It is primarily a question of fact whether the Commission made a mistake in determining the volume of water required to meet existing requirements. If that question were to be answered in favour of the first respondents, there would remain to be answered a further question, namely, whether in the result the condition precedent to a valid declaration under s.20Y in respect of the Severn River Source existed.

13. It is true that in the Court of Appeal the Commission conceded that the community interest would be served by an authoritative determination of the question of the validity of the declaration, but it must be said that the tenor of the argument for the Commission in this Court tended against allowing the amendment to the grounds of appeal. Counsel submitted that the extent of the public interest was distinctly limited. It was stated that the Commission neither joined in the application by the first respondents, nor did it positively support it.

14. The second consideration relied upon by the Court of Appeal was the fact that another appeal was listed for hearing which might raise the same point. A difficulty with this aspect of the matter is that the point has not yet been raised in that appeal and indeed may not be capable of being raised because the case is said to concern a different water source. In any event, with all respect, we are unable to see how one secures the public interest in the finality of litigation by denying the principle in one case in order to open up a speculative possibility of observing it in another.

15. If the facts were found to be as Mr Ellicott has suggested, then the first respondents might well feel a sense of extreme disappointment at the outcome of the proceedings - assuming, of course, that the findings of the trial judge are upheld on the appeal. No court finds any satisfaction in causing such disappointment. However, the principles to which we have referred earlier in this judgment have stood the test of time because they have been found to serve effectively the public interest in the fairness and expedition of the administration of justice. So it is in the present case. The first respondents must be bound by the conduct of their case at the trial. It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied.

16. For these reasons, we would allow the appeal, set aside the orders of the Court of Appeal, and remit the matter to that Court in order that the appeal may proceed in accordance with this judgment.

DEANE J: This is an appeal from a decision of the New South Wales Court of Appeal allowing the first respondents in the present appeal ("the first respondents") to amend their notice of appeal to that court so as to raise a point which had not been raised by them at first instance in their defence of proceedings brought by the present appellants as plaintiffs in the Administrative Law Division of the Supreme Court. The defendants in the proceedings at first instance were the first respondents, the Water Resources Commission of New South Wales ("the Commission") and three members of the Local Land Board for the Land District of Warialda, New South Wales ("the Land Board"). The Court of Appeal also indicated that, in due course, the first respondents and other parties would be permitted to lead further evidence in relation to the new point.

2. While s.75A of the Supreme Court Act 1970 (N.S.W.) does not in terms deal with the amendment of a notice of appeal, it would seem clear that the effect of sub-ss. 5-10 of that section is that the Court of Appeal possesses a discretion both to allow an amendment raising a new ground of appeal and to permit, on special grounds, the leading of further evidence. So much, as I followed the argument, is common ground. The only question involved in the appeal is whether this Court should interfere with the exercise by the Court of Appeal of those discretionary powers in the circumstances of the present case.

3. An appeal to this Court against the exercise by the senior appellate court of a State of a discretion in relation to matters of practice and procedure arising in the course of proceedings before it is rare indeed. Plainly, such an appeal cannot succeed unless an appellant clearly demonstrates that the exercise of discretion has seriously miscarried in the sense that it has, or must have, been substantially affected by wrongful application of principle or misunderstanding or erroneous assessment of factual material. This, in my view, the present appellants have signally failed to do. Ordinarily, on such an appeal, I would have thought it unnecessary to say much more than that. The appeal has, however, been brought by special leave and has been fully argued on behalf of the appellants, the first respondents and the Commission. In these circumstances and in view of the fact that the other members of the Court are of a contrary view, it is necessary that I indicate the reasons which seem to me to compel a rejection of the invitation to interfere in the present case with the exercise by the Court of Appeal of its discretionary powers in relation to practice and procedure.

4. The Court of Appeal (constituted by Kirby P., Hope J.A. and McHugh J.A.) was unanimous. Their Honours did not, as appellate courts commonly do when allowing a new ground to be added to a notice of appeal, merely indicate in general ex tempore terms the reasons for their decision. After consideration overnight, they delivered a carefully reasoned joint judgment referring to the relevant principles of law and explaining why it was that they concluded that they should exercise their discretion in a manner which would permit the amendment of the notice of appeal to raise the new point and the reception of further evidence. Their Honours considered the questions of amendment and of reception of further evidence together. In this they were plainly correct since the two questions were obviously interrelated. Unless further evidence could be received, the argument against allowing an amendment to raise the new point for the first time at the appellate stage would possibly have been unanswerable. If the amendment raising the new point were allowed, that, of itself, could constitute a special ground for allowing further evidence in relation to that point.

5. As their Honours pointed out, the case does not involve an ordinary dispute about directly competing private rights. The main disputants comprise two large groups of landholders - respectively comprising the present appellants and the first respondents - in the Northern Rivers District of New South Wales. The present appellants are landholders who are licensed under the provisions of the Water Act 1912 (N.S.W.) ("the Act") to use limited quantities of the waters of the Macintyre-Dumaresq River system ("the system") for irrigation purposes. The waters of that system are public waters. The "right to the use and flow and to the control" of them is, under the Act and subject to its provisions, vested in the Commission for the benefit of the Crown (s.4A(1)of the Act). No doubt for legitimate reasons of self-interest, the appellants seek to prevent consideration being given by the Land Board or the Commission to the substantive merits of an application by the first respondents, who are members of what is known as the "Whalan Creek Water Users' Association", for the grant of an authority under the Act to construct and use a joint water supply scheme involving limited use of those public waters.

6. The first respondents had been told, as long ago as 13 November 1980, by the Commission that it was "favourably disposed to the granting of a license which would provide for an allocation of 26,000 megalitres per annum (of the waters of the system) to (the) Association". The combined effect of the grounds upon which the appellants succeeded at first instance was that, notwithstanding that the first respondents and the Commission had acted on the contrary basis since 1979, there was no subsisting valid application by the first respondents pursuant to which that limited access to the waters of the system could be allowed. Those grounds were: (i) that an application for a licence which the first respondents had made under s.10 of the Act in 1979 had become "invalid" for the reason that it was not proceeded with - in the words of the learned primary judge, "it was never advertised and it was purported to be replaced and supplanted by the application under s.20"; and (ii) that a second application, which the first respondents had purportedly made in 1983 under s.20 of the Act after correspondence and discussion with the Commission, could not properly be seen, as the Commission itself had regarded it, as an amendment of the 1979 application and was therefore invalid for the reason that it was precluded by a notice which the Commission had, in the meantime (in 1982), published under s.20Y(1) of the Act. That notice was to the effect that no further licences or authorities allowing access to the waters of the system should be granted under the Act.

7. Any substantive merits of the appellants' opposition to the first respondents being given access to the waters of the system must be found in the standard riposte of those who seek to deny to others the access to public property, funds or benefits which they themselves have been granted: if the "have nots" are allowed any share at all, there will not be enough for the "haves" with the result that the "haves" will be unfairly deprived of the full benefit of expenditure incurred by them on the faith of the expectation of adequate supplies of water. Whatever may be the force of any such substantive merits, they have little to do with the present proceedings which are aimed at establishing that the Commission's s.20Y(1) notice had the unforeseen and unintended effect of preventing even consideration being given to the comparative merits of the first respondents' claims to access. In the particular circumstances, the present proceedings by the appellants are properly to be seen as based on technicality. That is not said by way of criticism. It is mentioned because it is relevant to an assessment of any injustice to the appellants which would be occasioned by allowing the desired amendment and the reception of further evidence at this late stage (cf. Sanders v. Sanders (1881) 19 ChD 373, at p 381; Blackwood v. The London Chartered Bank of Australia (1870) 9 SCR (N.S.W.) (Eq.) 101, at p 104).

8. One might speculate that, in the absence of formal pleadings, the full effect of the notice under s.20Y(1) upon the first respondents' claim to limited use of the waters may not have been fully appreciated by them until the two-limbed argument that the 1979 application had been "replaced and supplanted" by the 1983 application and that the 1983 application could not properly be regarded as an amendment of the 1979 application was developed at the hearing before the learned primary judge. The need to challenge the validity of the s.20Y(1) notice only arose if and when it appeared that both limbs of that argument were sustained. Indeed, the basis of the foreshadowed challenge to the validity of the s.20Y(1) notice is the proposition that the Commission acted on the false assumption that, in forming the opinion under s.20Y(1) that there was no available excess water in the system, the volume of water for the use of which it had encouraged the first respondents to seek authority under s.20 should be treated as the subject of a pending application by the first respondents. Obviously, the basis of that foreshadowed challenge could only be established if and when it was held that the objections to the subsisting validity of the first respondents' applications for access must otherwise be sustained. Be that as it may, there is no reason to doubt the accuracy of the assurance of the first respondents that the failure to challenge the validity of the s.20Y(1) notice at first instance resulted, as the Court of Appeal assumed, from the genuine inadvertence of counsel who then appeared for them.

9. The members of the Court of Appeal expressly accorded "great importance" to the following considerations which they derived from cases decided in this Court: "the importance of, and public interest in, the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court". Their Honours commented that these considerations, which they described as "principles", "must be kept steadily in mind in determining applications such as the present". It may be arguable that their Honours placed undue importance upon some of these considerations by treating them as principles of law. Their approach cannot, however, in my view, properly be criticized on the grounds of failure to appreciate or to pay regard to the considerations militating against the grant of the application to amend the notice of appeal and to lead further evidence.

10. Most of the cases in this Court in which the above considerations have been stressed did not involve an appeal by way of rehearing such as the appeal to the Court of Appeal in the present matter. The ordinary appeal to this Court is not by way of rehearing and this Court has, from the earliest times, stressed the significance of this fact and consistently refused to hear or take account of further evidence in an appeal to it (see, e.g., New Lambton Land and Coal Co. Ltd. v. London Bank of Australia Ltd. (1904) 1 CLR 524, at p 532; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73, at pp 109-110, 112; Davies and Cody v. The King (1937) 57 CLR 170; Crouch v. Hudson (1970) 44 ALJR 312). It is plainly essential that that distinction between the ordinary appeal to this Court and an appeal by way of rehearing to a court with full discretionary powers to hear and take account of new evidence in resolving the appeal to it be borne firmly in mind when considering statements made in judgments in this Court in the course of refusing to receive further evidence or to allow a new point to be raised on an appeal to it. Ordinarily in this Court, further evidence will only be received and considered for the distinct and limited purpose of supporting an application for a new trial on the ground that the further evidence is fresh or newly discovered. The receipt and consideration of new evidence for that limited purpose is quite different in nature from what is involved in the exercise by an appellate court of a broad statutory discretion to receive further evidence on an appeal to it by way of rehearing. In the Court of Appeal, their Honours referred to this aspect of the matter when they quoted with approval some comments of Moffitt P. concerning s.75A of the Supreme Court Act in Tamas v. Streimer, unreported, 10 July 1981 which are set out in Ritchie's Supreme Court Procedure New South Wales (1984), vol. 2, par. 13,027. Those comments of Moffitt P. (in which Reynolds and Glass JJ.A. concurred), are in point in the present case and are plainly correct. They are as follows:

"It would seem that the exercise of a discretion to admit the evidence on special grounds in aid of the Court of Appeal making its own decisions pursuant to sub-section (5) by way of rehearing may involve different considerations to those which involve the Court receiving fresh evidence, if that is what it does, in aid of ordering a new trial. Where in rehearing the case, the Court of Appeal makes its own decision, drawing inferences and making findings of fact as provided by (sub-section) (6) (Warren v. Coombes (1979) 53 ALJR 293), it may be far less disruptive of the finality of litigation to receive fresh evidence in relation to part of the case, than to 'receive' fresh evidence so the whole case is retried, with the possible consequence, as often occurs, that the factual issues are different and the evidence is called afresh and is different."

11. In the course of the argument, senior counsel for the appellants placed particular reliance upon the following general statement in the joint judgment of Latham C.J., Williams and Fullagar JJ. in Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at p 438: "Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards". The relevant appeal in that case was the appeal to this Court direct from a single judge exercising the equitable jurisdiction of the Supreme Court of New South Wales. It was an appeal in the strict sense to a court which has resolutely turned its face against the reception of further evidence on such an appeal. Moreover, it was an appeal in a case which had turned at first instance, as would the new point which it was sought to raise for the first time on appeal, on closely disputed questions of fact. Even in the context of such an appeal in such circumstances, the above broad and unqualified statement would seem to require some reconsideration in that circumstances could well arise in which justice would demand that an amendment to raise a new point be allowed notwithstanding that that would involve the matter being sent back for a new trial or the hearing of further evidence in the court of first instance (cf., e.g., McCann v. Parsons (1954) 93 CLR 418, at pp 431-432). It is unnecessary to consider that question here, however, since it is obvious that the above unqualified statement cannot properly be applied to a case, such as the present, where the relevant appeal is "by way of rehearing" (s.75A(5) of the Supreme Court Act) to an appellate court which is entrusted by statute with the general discretionary powers "concerning ... amendment" of "the court ... from whom the appeal is brought" (s.75A(6)(a)) and with a broad discretionary power to "receive further evidence" on unspecified "special grounds" (ss.75A(7) and 75A(8)). Indeed, for this Court to limit those full discretionary powers of the Court of Appeal by the adoption of such a broad unqualified principle would be to do precisely what, as recently as Norbis v. Norbis, unreported, 30 April 1986, it has said in emphatic terms that it is not competent for an appellate court to do.

12. There are two other cases in this Court upon which special reliance was placed in the course of argument and to which specific reference should be made. The first, University of Wollongong v. Metwally (No. 2) (1985) 59 ALJR 481; 60 ALR 68, was cited on behalf of the present appellants. The second, Ellis v. Leeder (1951) 82 CLR 645, was called in aid by the first respondents.

13. Metwally is a prime example of a case where the judgment must be read in the context of the particular circumstances to which it was addressed. There, a party to completed proceedings by way of case stated in this Court sought to vacate a declaratory order which had been made by the Full Court of this Court after it had been perfected by being taken out. The ground upon which that extraordinary relief was claimed was that Mr. Metwally desired to raise a point which had not been raised on the hearing in this Court and which was in direct conflict with the basis of the case presented on his behalf in the completed proceedings in this Court. In that context, the members of the Court commented that "(e)xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which ... he failed to put during the hearing when he had an opportunity to do so" (at p.483, p.71 of A.L.R.). That comment was not directed to defining the circumstances in which a court, which has been entrusted by statute with full discretionary powers to allow amendment to raise a new point and to receive further evidence, should exercise such discretionary powers on an appeal by way of rehearing to it. The case was not concerned with the exercise of such statutory powers. It did not involve an appeal by way of rehearing. Indeed, it did not involve an appeal at all.

14. Ellis v. Leeder is a rare example of a case in which this Court saw fit to interfere with the exercise by the senior appellate court of a State of its discretionary powers in relation to a matter of practice and procedure arising in the course of proceedings before it. The Full Court of the Supreme Court of New South Wales had refused to admit further evidence on an appeal by way of rehearing to it from a single judge sitting in Equity. In this Court, Dixon, Williams and Kitto JJ. held that the Full Court should have received the further evidence and indicated that, if they had not been of the view that the appeal should succeed in any event, they would have remitted the case to the Full Court for rehearing. The reliance which the first respondents sought to place upon their Honours' joint judgment was, however, misplaced in view of the subsequent decision of the Privy Council (Leeder v. Ellis (1952) 86 CLR 64) that the appeal to this Court should have been dismissed and that the refusal of the Full Court of the Supreme Court to receive further evidence should stand. Where Leeder v. Ellis does provide support for the first respondents in the present case is in the importance which the Judicial Committee rightly placed upon the fact that, in refusing to admit further evidence, the Full Court of the Supreme Court had been exercising a statutory discretion vested in it. Thus, their Lordships were at pains to point out that, while this Court was not "justified" in "interfering with the exercise by the Full Court of New South Wales of the discretion vested in it" (at p.71), it may well have been that, if "the Full Court (had) decided to admit the evidence", that decision might have been allowed to stand (see p.70).

15. The traditional requirement that the power to receive further evidence on an appeal by way of rehearing be exercised "on special grounds" does not preclude the power from being properly described and treated as a "full discretionary" one (see, e.g., Barham v. Inder (1925) 42 N.S.W.WN 146, at p 147). It must, of course, be exercised with due regard to the considerations which make it generally undesirable that the admission of further evidence be permitted at the appellate stage and to the requirement that there exist "special grounds" which must, at the least, be sufficiently cogent to outweigh the weight to be given to those considerations in the circumstances of the case. As has been seen, the members of the Court of Appeal identified and stressed the importance of those considerations. At the same time, however, their Honours were properly conscious of the impossibility of laying down a priori what will be a sufficiently special ground to justify the reception of further evidence (see Sir George Jessel M.R. (Cotton and Thesiger L.JJ. concurring), in In re Chennell (1878) 8 ChD 492, at p 505) or what circumstances will warrant permitting amendment of a notice of appeal to raise a new point at the appellate stage. Rigid judge-made rules should not be permitted to override the effect of a statutory conferral of general discretionary powers (see, generally, Norbis v. Norbis). In a case where there are countervailing considerations or special grounds favouring the exercise of such a full statutory discretion in a way which will allow the amendment of a notice of appeal to raise a new point or the receipt of further evidence, the question whether the discretion should be so exercised "is largely a matter of degree, and there is no precise formula which gives a ready answer" (per Lord Pearson in Murphy v. Stone-Wallwork (Charlton) Ltd. (1969) 1 WLR 1023, at p 1036; see also Mulholland v. Mitchell (1971) AC 666, at pp 676, 679; Martin v. Abbott Australasia Pty. Ltd. (1981) 2 NSWLR 430, at p 436). Where, notwithstanding the general undesirability of admitting further evidence on appeal because there ought to be finality in litigation, the scales are finely balanced, the guiding principle must be the search for justice in the particular circumstances of the individual case (see Burston v. Melbourne and Metropolitan Tramways Board (1948) 78 CLR 143, at p 167).

16. Some or all of the general considerations militating against allowing a new point to be raised by an appellant and receiving further evidence in relation to it are negatived or muted by the particular circumstances of the present case. The case is not one in which there was a tactical decision not to raise the new point at first instance and to keep it in reserve for the appeal. As has been seen, the reason why the point was not raised at first instance was that it was overlooked by counsel. I have already indicated that I do not find that oversight beyond understanding.

17. Nor is there any real danger of injustice to the appellants of a type that could not be covered by an order for costs. The appellants' action is a group one brought by more than a hundred plaintiffs against more than thirty defendants. As has been seen, it is essentially based on technicality: that, while the second application grew out of - "replaced and supplanted" - the first in the course of correspondence and discussion between the first respondents and the Commission, it must be seen as a new application and not, as the Commission itself saw it, as but an amendment of the first. It involves the proposition that the Commission's s.20Y(1) notice had an effect which the Commission itself neither intended nor foresaw and is aimed at preventing the first respondents' claim to access to the waters of the system from being even considered by the Land Board and the Commission on its substantive merits. The proceedings at first instance were determined - as would, one would think, be the new point if further evidence is ultimately found to be necessary - on affidavit evidence and other written material. While, of its nature, the new point only arises in the event that the appellants' attack on the subsisting validity of the first respondents' applications under ss.10 and 20 of the Act would otherwise be sustained, it is not inconsistent with the case advanced on behalf of the first respondents on the trial and, if it had been raised on the hearing at first instance, would not have made the issues decided by the learned primary judge either irrelevant or secondary. In these circumstances, it is difficult to identify any substantial injustice which would be sustained by the appellants or any other party by reason of the failure to raise the new point at first instance. It is true that, if the appeal to the Court of Appeal were upheld by reason of the new point, the present appellants would be deprived of the fruits of their forensic victory, on technical grounds, in the trial. If the point had been raised at first instance and held to be valid, however, that forensic victory would never have been enjoyed or would, in any event, have been lost on appeal. Even if one makes the somewhat unlikely assumption that, if the new point had been raised and had prevailed at first instance, there would have been no appeal, the only substantial disadvantage, apart from the expense and inconvenience of litigation, which would have resulted from the failure to raise it would be that suffered by the first respondents by reason of the delay in having their claim to access to the waters of the system considered on the merits and, if that claim were subsequently to prevail, in obtaining such access. It would seem plain enough that, to put the matter in neutral terms, any delay sustained by the first respondents in obtaining access to the waters of the system would not be seen by the appellants as disadvantageous or displeasing to them.

18. There remains the primary consideration militating against allowing the amendment and receiving further evidence, namely, the need, in the interests of both the public and particular litigants, that there be finality in litigation. That consideration sounds somewhat strangely in the present case where it is advanced in support of an appeal to this Court challenging a discretionary decision about a matter of practice and procedure made by a superior appellate court in the course of proceedings before it. That aside, the consideration is of but muted significance in a group action such as the present where the new point concerns the validity of a general notification issued by a public authority in the purported exercise of its statutory powers and where the question of the validity of that notification could be raised in other proceedings. In such a case, there is much to be said for the view that it is in the interests of the public and conducive to the overall finality of litigation between the competing groups that a genuine challenge to the validity of such a general notification be resolved as expeditiously as possible.

19. Their Honours specifically identified "three considerations special to this case" which they saw as supporting the grant of leave to amend and to lead further evidence. Those three considerations are related. The first was that the issue which the first respondents sought to raise "touches upon the public law of the State". It involves the validity of a public notification by a statutory authority precluding further applications for licences to use the public waters of the system. The second was that there was another appeal listed before the Court of Appeal "involving another water site in which the same point may be raised". The third was that, a matter of public law being involved, the wider community had a legitimate interest in it. There is, of course, obvious room for differences of opinion as to the precise weight of those three related matters. It seems to me, however, that they were plainly relevant and of importance.

20. It was submitted on behalf of the appellants that the question of the validity of the s.20Y(1) notice would only arise if the first respondents were permitted to raise it in the present case. I do not agree that that is so. The notice is a public notification by a statutory authority purportedly having statutory effect. If valid, it will preclude even consideration being given to any new applicant seeking access to the waters of the system for irrigation purposes. A genuine challenge to its validity has been raised in a public forum. The point of law underlying that challenge could well be relevant in other cases. That this is so is demonstrated by the fact that, as has been mentioned, the second of the above three special matters was that the point "may be raised" in another appeal already pending in the Court of Appeal presumably in relation to another s.20Y(1) notice. True it is that leave to raise the point for the first time in that other appeal would need to be sought and obtained from the Court of Appeal. Even if it could be assumed that leave to raise the point would not be granted in that other case, however, it is not suggested that it will not be open to others to raise the point of law or to attack the validity of the particular s.20Y(1) notice in subsequent proceedings. In that regard, the Court was informed that proceedings aimed at attacking the validity of the particular notice have already been initiated by a person associated with one of the first respondents. Indeed, if the appellants' contention that the first respondents would themselves be estopped from challenging the validity of the notice in subsequent proceedings is correct and if the challenge to the validity of the notice be soundly based, the result of a refusal to allow the first respondents to raise the point would be that they alone were excluded from being considered for access to the public waters of the system. And that by reason of the unforeseen and unintended effect of an invalid public notification by a statutory authority which they had sought to challenge on their appeal in circumstances where their failure to raise such a challenge in their defence at first instance was caused by the genuine inadvertence of their counsel and where any real prejudice sustained by other parties could have been adequately covered by an order for costs. Such a result would be unjust and regrettable. In the context of proceedings brought by a group of more than a hundred plaintiffs to establish, on technical grounds, that that public notification had had the quite unintended effect of precluding the first respondents' application for access from being even considered on its true merits, it appears to me that such a result would expose the legal system to justifiable ridicule.

21. In referring to the "public" importance of the challenge to the validity of the s.20Y(1) notice, the members of the Court of Appeal commented that the "Commission itself desires clarification of the point, it having been raised". It was suggested on behalf of the appellants that that overstated the Commission's attitude. It does not appear to me that their Honours placed any great importance on this reference to the attitude of the Commission or that anything would turn on an inadvertent overstatement of the Commission's approach. In any event, the material before this Court does not warrant a conclusion that the Court of Appeal misstated or overstated the attitude adopted by the Commission before it. To the contrary, the written outline of submissions of the Commission in this Court expressly states that, even though it did not join in or positively support the application, the Commission "conceded that it was in the community interest that the validity of the proclamation under (s.)20Y be determined authoritatively".

22. At the end of the day, the question whether the first respondents should be given leave to challenge the validity of the s.20Y(1) notice and to lead further evidence was one in respect of which there was possibly room for legitimate differences of opinion. The members of the Court of Appeal recognized that that was so. In the exercise of their discretion in relation to matters of practice and procedure in proceedings before them, they themselves reached the conclusion that such leave should be granted. For my part, I unreservedly agree with their conclusion in that regard. That is not, however, really in point. What is in point is that there are no proper grounds for concluding that the exercise of their discretion by the members of the Court of Appeal miscarried.

23. The appeal should be dismissed.

Orders

Appeal allowed.

Set aside the judgment and order of the Court of Appeal of the Supreme Court of New South Wales and order that the matter be remitted to that Court to proceed in accordance with the reasons for judgment of the majority of this Court.

Order that the first respondents pay the costs of this appeal and of the hearing in the Court of Appeal.