Media Niugini Ltd t/as EMTV v International Management Group of America Pty Ltd

Media Niugini Ltd, trading as EMTV, appealed to the New South Wales Court of Appeal against a decision concerning a dispute with International Management Group of America Pty Ltd. The central issue at trial had been the existence of a contract, rather than its construction. EMTV contended that the trial judge had failed to accord procedural fairness by adopting a construction of the commercial contract that differed from those presented by the parties during the hearing.

The Court of Appeal was required to determine whether the trial judge's conduct, in allegedly adopting an unforeshadowed construction of the contract, constituted a failure to accord procedural fairness to the parties. Furthermore, the Court had to consider whether the trial judge had, in fact, decided the proper construction of the contract. The Court also considered a new point raised on appeal concerning the construction of the contract, which EMTV sought to introduce under the guise of a procedural fairness argument, having not raised it at first instance.

The Court of Appeal held that the trial judge's conduct and findings did not evince any failure to accord procedural fairness. The Court reasoned that the principal issue at trial was the existence of the contract, and the questions of construction were readily apparent and could have been raised at first instance. The Court found no issue of principle in EMTV attempting to raise construction arguments on appeal as a means of avoiding liability, particularly when they had not been raised in response to the respondent's claim for damages for breach of contract.

Leave was granted to the appellant to amend its Notice of Appeal to add a specific ground. However, the appeal itself was dismissed with costs.