Hunter v State of New South Wales

The applicant, Hunter, sought damages for wrongful arrest and false imprisonment against the respondent, the State of New South Wales. The respondent contended that the arrest was lawful by virtue of section 50 of the *Bail Act 1978* (NSW). The applicant sought to argue, for the first time in supplementary submissions after evidence had been led, that the arrest was unlawful due to the respondent's failure to satisfy the onus of proving an "effectual" exercise of the discretion conferred by section 50. The appeal concerned whether the primary judge erred in disallowing the applicant from relying on this new point.

The central legal issue before the Court of Appeal was whether the primary judge was correct in holding that the applicant was not permitted to raise the submission regarding the "effectual" exercise of discretion under section 50 of the *Bail Act 1978* (NSW) at such a late stage. This involved considering the applicant's obligation to plead matters that might take the other party by surprise, as stipulated by rule 14.14 of the *Uniform Civil Procedure Rules 2005* (NSW), and the overarching principles of civil procedure, including section 56(3) of the *Civil Procedure Act 2010* (NSW).

The Court of Appeal found that the primary judge did not err in disallowing the applicant to rely on the submission concerning the "effectual" exercise of discretion. The Court reasoned that this point was not pleaded and was only raised in supplementary submissions after the evidence had been led, thereby taking the respondent by surprise. The Court emphasised the importance of parties adhering to their pleading obligations to ensure fairness and efficiency in litigation, particularly when new arguments are introduced at a late stage without adequate notice.

Consequently, the application for leave to appeal was refused, and the applicant was ordered to pay the respondent's costs of the application.