South Australian Superannuation Board (Super SA) v McIntyre

The South Australian Superannuation Board (Super SA) appealed a decision concerning Mr. McIntyre's entitlement to an invalidity insurance benefit. The dispute centred on whether Mr. McIntyre's employment had been terminated by his employer in accordance with the relevant superannuation legislation, a prerequisite for receiving the benefit. The Full Court of the Supreme Court of South Australia considered the appeal.

The primary legal issue before the Full Court was whether the appellant, Super SA, should be permitted to raise for the first time on appeal the argument that Mr. McIntyre's employment had not been terminated by his employer, a point not pursued at trial. This question required the Court to consider the principles governing when an appellate court may entertain arguments not advanced in the court of first instance, particularly in light of the High Court's decisions in cases such as *The University of Wollongong v Metwally (No 2)*, *Coulton v Holcombe*, and *Water Board v Moustakas*.

The Court reasoned that ordinarily, a party is bound by the conduct of their case at trial, and new arguments are only permitted on appeal in exceptional circumstances. The High Court has consistently held that if a point could have been met by calling evidence at trial, it generally cannot be raised on appeal. While appellate courts have discretion to entertain new points of law or construction where all facts are established, this discretion is exercised cautiously, balancing the interests of justice with the public interest in the finality of litigation. The Court noted that the threshold for raising a new argument on appeal is high, and the circumstances must be truly exceptional, such as those involving public law or the liberty of the individual, to justify departing from the general rule.

The Court concluded that the appellant should not be permitted to raise the question of whether Mr. McIntyre's employment was terminated by the employer for the first time on appeal. This was because the issue could have been addressed with evidence at trial, and the circumstances did not meet the high threshold for exceptionality required to allow a new argument. Consequently, the appeal was allowed on the basis that the requirement for termination of employment by the employer had not been made out.