| IN THE COURT OF APPEAL | [1992] QCA 148 |
| SUPREME COURT OF QUEENSLAND | No. 115 of 1991 |
| BETWEEN: |
ROGER CLEVELAND TOOLE
(Plaintiff) Respondent
AND:
FLEXIHIRE PTY LTD
(Defendant) Appellant
REASONS FOR JUDGMENT OF THE COURT
Delivered the 17th day of June 1992
The appellant is the unsuccessful defendant in an action for moneys due under a contract of service between it as employer and the respondent as its employee manager. The appellant seeks to argue as its only substantive grounds of appeal:
1. that the trial judge erred in law and in fact in failing to find that that contract was procured by the respondent in circumstances which made it inequitable and unconscionable on the part of the respondent to seek to enforce it; and
2. that the trial judge erred in law and in fact in failing to find that, as a result of the actions of the respondent in preferring his own interests over those of the appellant in procuring the execution of that contract, the contract was not enforceable against the appellant.
There are some consequential grounds which follow only if the appellant succeeds on these grounds. Unless it succeeds on those grounds, its counsel conceded before us that it was not entitled to succeed at all on appeal. He also conceded that these grounds were not pleaded in the action and were not argued in the action. The action, and consequently the judgment from which the appeal is brought, concern alleged invalidity, on other grounds, of resolutions passed at meetings of the board of directors of the appellant on 15 and 19 November 1990.
The appellant also sought before us for the first time to amend its defence to raise the grounds referred to above. Its counsel acknowledged the difficulty which faced the appellant in seeking to so amend and argue the grounds which it sought to argue. He accepted as correct, as he was bound to, the following statement of principle from Coulton v. Holcombe (1986) 162 C.L.R. 1 at 7:
"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.; Bloemen v. The Commonwealth."
The appellant therefore undertook the onerous task of showing that, had the point raised in the grounds referred to above…
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- AGLC
- Toole v Flexihire Pty Ltd [1992] QCA 148
- Case
- [1992] QCA 148
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the appellant should be permitted to introduce a new ground of appeal that had not been previously raised or objected to in the lower court. Specifically, the court needed to consider whether such an amendment to the pleadings was permissible and whether the respondent could have effectively countered the new argument with evidence had it been raised during the initial proceedings. The court was tasked with determining the appropriateness of allowing the amendment and whether the respondent had a reasonable opportunity to address the new point.
In delivering the judgment, the court emphasised the importance of adhering to the principle that amendments to pleadings should generally not be allowed if they introduce new issues that were not previously raised. The court found that the appellant's attempt to introduce a new ground of appeal was not permissible, as it would have fundamentally altered the scope of the original dispute. Furthermore, the court determined that had the issue been raised during the initial proceedings, the respondent would have had the opportunity to present evidence to counter the appellant's argument. Consequently, the appeal was dismissed, and the original decision of the County Court of Victoria was upheld.
The court did not make any further orders beyond upholding the decision of the County Court of Victoria. The appellant's attempt to introduce a new argument on appeal was deemed inappropriate, and the appeal was dismissed without any additional costs or orders.
Orders
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Background
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Evidence
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Decision
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