Tyson & Anor v Brisbane Market Freight Brokers Pty Ltd

[1993] HCATrans 13

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B43 of 1992

B e t w e e n -

ALLAN GEORGE TYSON and LAWTON

SMASH REPAIRS

Applicants

and

BRISBANE MARKET FREIGHT BROKERS

PTY LTD

Respondent

Application for special leave

to appeal

MASON CJ

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 FEBRUARY 1993, AT 11.33 AM

Copyright in the High Court of Australia

Tyson 1 5/2/93

MR R.A. INGHAM-MYERS:  I appear for the applicant, with my

learned friend MR P.D. BA.KER.	(instructed by Baker
O'Brien & Toll)

MR K.C. FLEMING, QC:  I appear for the respondent, with my

learned friend MR N.F. NUNAN.	(instructed by Biggs
& Biggs)

MR MYERS:  May it please the Court. It is submitted on

behalf of the applicant that this is a strong case

of misleading and deceptive conduct and, in my

submission, one does not have to go past the

observations of this Court in Hornsby Building

Information to arrive at that conclusion. But this

case will be conducted on the basis that the

approach adopted to the Court of Appeal on appeal

from the district court judge at first instance was

an incorrect approach and that that constitutes the

basis upon which this Court would grant special

leave to appeal.

Your Honours the matter arises from a contract

of bailment.

MASON CJ: Yes, we are familiar with the history of the

case, so you can come directly to the point you

want to argue in support of the application.

MR MYERS:  Thank you, Your Honour. The evidence given on

the trial by the applicant before Your Honours is

that no terms of the contract in relation to this

bailment were discussed. He was asked whether

there was any agreement as to price and he said it

was the usual price. The evidence that was given

by the managing director of the respondent company

was that questions of insurance would be discussed

before any contract was entered into.	The case was
really conducted by both parties on the basis that

the issue for determination by His Honour concerned

initially what was said to be the misleading and

deceptive conduct of the managing director in

response to his question in relation to insurance.

The ancillary issue raised on trial, but which is

not raised again now is the question of the application of the Insurance Contracts Act.

The Court, it would appear from the judgment,

and if I could refer Your Honours particularly to

page 22 of the record, were really persuaded, in

our respectful submission, in relation to the
question of misleading and deceptive conduct, the

relevant portion of the reasons for judgment

commence on page 22 at about line 30 and continue

through to line 50. But the Court then considered

the question of whether or not the conduct was pre

or post-contractual.

Tyson 2 5/2/93

TOOHEY J: Just before you get to that, Mr Myers, it is not

quite right, is it, to say that the Court was

persuaded on the question of misleading or

deceptive conduct, but rather that they indicated a

disposition to accept the present applicant's

argument on that point, but found it unnecessary to

determine that matter.

MR MYERS:  Yes, with respect, that is quite so, but,

Your Honours I was not going to endeavour to

persuade Your Honours in relation to section 52, I

would simply mention reliance upon what the Court

said in the Hornsby case.

TOOHEY J:  And if you make good your broader argument, or

your argument related to the way in which the trial

was conducted, or the appeal was conducted, both in

fact, what would be the outcome?

MR MYERS:  I would submit that Your Honours would grant

special leave and that perhaps the section 52

misleading and deceptive conduct argument would

obviously have to be raised once again on appeal,

because, it has to be conceded that the

Court of Appeal found it unnecessary ultimately to

decide that issue. But I would leave this

application on the basis that the Court acknowledge

that it was a persuasive argument and acknowledge

that to cite the court may well have been disposed

to accede to the submission.

GAUDRON J:  Why would not that question, if you were

successful, go back to the Court of Appeal?

MR MYERS: It could well, yes.

MASON CJ:  You have it in mind that it would go back to the

Court of Appeal if you succeeded on your

irregularity point.

MR MYERS: Yes. That, with respect, would be correct. This Court could direct that the Court of Appeal proceed

to hear and determine the matter in the absence of

the issue that the Court effectively raised.

MASON CJ:  You had better come directly to your irregularity

point then.

MR MYERS:  As the Court pleases. Your Honours will see from

page 24 of the record, commencing at about line 35,

that the evidence, an outline of which I have

already given to the Court, was treated by the

Court of Appeal as being no more than equivocal.

At line 35, the court said:

The evidence, however, suggests that

these acts (inspection, delivery, etc) may

Tyson 3 5/2/93

equally well have been done in performance of

an agreement already made between the parties.

Now, Your Honours, might I interpolate that the

pleadings, that is the respondent's pleadings in this case, allege that the agreement between the

parties was one that was entirely in writing, there

were no oral terms or variations - further and

better particulars were filed and became part of

the record - and it was alleged that agreement

relied upon by the plaintiff was one reached in

writing on 17 October 1986. That is to say, one

week precisely after the date upon which the

applicant had had the initial discussion in

relation to the formation of the contract with the

Mr Gardiner referred to in the evidence, and the

conduct upon which reliance is placed, was conduct
of the managing director, Mr Roles, on Saturday,

11 October, some six days prior to the date upon

which the contract was entered into.

Now, Your Honours, we have acknowledge in the

record, it was never conceded that that was the
date upon which the contract was formed, but the

whole of the litigation was conducted upon the

basis that whenever the contract was formed, the

discussion with Mr Roles was certainly pre-

contractual.

Your Honours have as an exhibit to the

affidavit the written submission - this was a case

where the the learned district court judge requested written submissions, and written

submissions were made by both parties, and the

issues canvassed were simply the issues of the

character of Mr Roles' discussion with Mr Tyson. The question of whether or not it was misleading

and deceptive, or gave rise to an estoppel, or an

implied or an inferred term and, of course, the

insurance contracts issue. It was not a submission

made by either party before the learned district

court judge, that the conversation could in any way

be classified as post-contractual.

MASON CJ: That is right, is it, that the common ground was

that the conversation was pre-contractual rather

than common ground that your client was entitled to

succeed if the representations were made as

alleged?

MR MYERS:  Yes, Your Honour, the latter was the issue on the

trial. Your Honours, I do not want to overstate

that it was common ground because it was a matter

not addressed in submissions, not addressed by

His Honour the trial judge, it was simply not an

issue on the trial, rather than having been

conceded before His Honour, for instance, that the

Tyson 4 5/2/93

conversation was one that should be treated as

being pre-contractual.

GAUDRON J:  And is it a matter that is actually material to

the operation of section 52 of the Trade Practices

Act?

MR MYERS:  No, Your Honour, it was not. But it was as the

matter was pleaded because it was pleaded by the

defendant in his defence that the representations

were made in the course of pre-contractual

negotiations. Mr Lyons, who appeared for the

applicant before the Court of Appeal, argued, and

it seems to have been accepted if one looks at

page 25 of the record in the last paragraph, that

the conduct did not have to be pre-contractual.

The bailment did not commence until after Mr Tyson

had satisfied himself in relation to insurance and,

of course, he could either have refused to have

taken delivery of the truck had the truthful

statement been made; or alternatively, he could

have arranged his own insurance.	The loss did not
occur for many months.	The loss did not occur
until well into 1987.

TOOHEY J:  Mr Myers, could I just ask you how was the

section 52 argument pleaded as a defence?

MR MYERS:  Your Honours, it appears, if I could take you to

page 23 of the record, where the Court of Appeal

set it out in the amended paragraphs lB and lC.

Perhaps I could allow Your Honours to read it

rather than read it out.

TOOHEY J: Yes, I understand that. I am still not clear as

to the way in which it was set up as a defence to
the claim. I can understand it perhaps being the

basis of some sort of cross claim.

MR MYERS:  Yes, it was set up as a defence upon the basis

that Mr Tyson would never have entered into the

contract had it not been for the representation

relating to insurance.

TOOHEY J: But he was sued in negligence, was he not?

MR MYERS:  He was sued in negligence, but the Court of

Appeal really expressed at the outset that it was a

little difficult to understand exactly the basis of
the claim, but ultimately it was not taken as a

point; it did not appear to matter.

TOOHEY J:  You would put this in the same category as your

main argument, namely that it was not an issue

before the trial judge or before the Court of

Appeal as to the manner in which section 52 might

operate as a defence, but the parties appear to

Tyson 5 5/2/93

have proceeded on the basis that it would if made

good.

MR MYERS:  Exactly, Your Honour. The Court of Appeal seemed

to have treated it in that way at page 21 of the

record.

TOOHEY J:  I do not want to take you into areas that really

do not arise, but there might be a difficulty as to

whether a post-contractual statement gives rise to

a cause of action not because it does not fall

within the language of section 52, but perhaps it
does not fall within the language of section 82.

In other words, the loss or damage may not have

been caused by the misleading or deceptive conduct.

But all these issues seem to have been put to one

side.

MR MYERS:  They do. They were put to one side by the

parties and if they became relevant - and obviously

after the judgment of the Court of Appeal was

delivered, they were relevant - the appellant

before the Court of Appeal should have been

afforded the opportunity under Order 70 rule 10 of

either amending the pleadings - it was conceded on

the state of the pleadings where the pleadings

pleaded that it was pre-contractual, that if the

applicant was going to be tied to that, he had

difficulty in making out his case because there was

simply an absence of evidence. It was not really a

preponderance of evidence that the negotiations

were post-contractual but that the matter had

really been left in limbo because the parties had

treated to do it that way.

MASON CJ:  Mr Myers, was there any reference at all in

argument before the Court of Appeal to the issue of

pre or post-contractual?

MR MYERS:  Yes, it was raised for the first time by the

respondent before the Court of Appeal. It was

never an issue prior to that, but it was raised by

the Court of Appeal. The Court of Appeal really

seized upon the point and having concluded, it

would seem, that the evidence was equivocal, really

came to the conclusion that the -

MASON CJ:  What was the response from your side when it was

raised by the respondent before the Court of

Appeal?

MR MYERS: Initially that it had not been raised. There

were written submissions that were made by Mr Lyons

at the time and they are also an exhibit before

Your Honours, but it was initially said that it was

not raised and it should not be raised for the

first time on appeal. Mr Lyons also - - -

Tyson	6	5/2/93
TOOHEY J:	I do not quite understand that.	Was it raised in

the written submissions tendered to the Court of

Appeal as opposed to the trial judge?

MR MYERS:  Yes, for the first time it was raised in the

written submissions before the Court of Appeal. It

had never been an issue between the parties up

until that time. Mr Lyons in his written

submissions before the Court of Appeal addressed it

upon that basis, that it was never an issue. In

any event the evidence was at best equivocal or

otherwise supported the appellant's case. The

question of whether or not the pleadings should be

amended was simply never canvassed, because of

course the judgment of the Court of Appeal suggests

that the Court of Appeal had no alternative but to

act under Order 70 rule 11.

That was really never raised by them on the

appeal and of course they did not have an

obligation to simply act pursuant to Order 70
rule 11. They could have also acted pursuant to

Order 70 rule 10 and permitted an amendment of the

pleadings which would have resolved the matter,

even if - - -

MASON CJ: Mr Lyons did not put to the Queensland Court of

Appeal that it did not matter whether the misrepresentation was pre- or post-contractual,

that if such a representation was made the

applicant was entitled to recover damages at least.

MR MYERS: With respect, Your Honour, he seems to have put

that. If Your Honours look at page 25 of the

record, line 39, he did submit that it was not

decisive upon the basis that really had Mr Tyson

gone to take delivery of the truck, in accordance

with the terms of the contract, a misleading and	deceptive statement was then made, he could have	(a) either refused to take the truck or (b) taken
it pursuant to the contractual obligation, but immediately arranged his own insurance knowing that
he would not be covered, and the matter could have
been pleaded in that way, and in the submission of
the applicant, exactly the same result would have followed. That is to say the plaintiff's claim
would have been dismissed.

MASON CJ: Yes.

TOOHEY J:  Your complaint is not so much, as I understand

it, that the Court of Appeal disposed of the matter

on an issue that was not argued before it but

rather disposed of the matter on an issue that had

not been an issue in the trial and, indeed, was

quite at odds with the way in which the trial had

been conducted.

Tyson 7 5/2/93

MR MYERS:  With respect, exactly, Your Honour. Your Honours,

the other matter, of course, that emerges is that

virtually all of the evidence on the trial was

directed to the misleading intercept of conduct
point, or, alternatively, to the insurance

contracts point. All of the evidence that was led

and cross-examined upon, in relation to the

misleading and deceptive conduct, would have been

inadmissible if, in fact, the contract had been

performed and the misleading and deceptive conduct

was post-contractual. So it is really quite wrong,

and in the applicant's submission it is a matter of

both public importance and in the interests of

administration of justice that parties should not

have imposed upon them some artificial want of

compliance with the rules when they choose to

conduct their litigation on exactly an identical

basis.

They are the applicant's submissions, may it

please the Court.

MASON CJ: Yes, Mr Myers. Mr Fleming?

MR FLEMING: If the Court pleases. If I may go directly to

the issues that were raised at the trial.

Your Honours, the date of the contract was always

an issue at the trial, firstly. And, secondly, the

date of the representation was always an issue at

the trial. On that basis then the Court of Appeal

was in possession of all evidence that could be

called, and as they said under Order 70 rule 11

they were entitled then to draw the inferences that
the trial judge could draw.

Your Honours, the date of the contract and the date of the representation was specifically raised,

as can be seen by the amended defence set out at

page 23 in the reasons of the Court of Appeal.

GAUDRON J: But do they not really, in so far as they raise

the issue of whether it was pre-contractual or

otherwise, simply plead an irrelevant matter which

could have been amended, in any event, but it was

irrelevant.

MR FLEMING:  Yes. No, Your Honour, they chose to run the

case in that way and, indeed, the principles that

my learned friend is espousing, in fact operate

against him. They chose to run the case on the

basis that it was a pre-contractual representation

and they had to establish that. The date,

necessarily, of the contract and the date,

necessarily, of the representation then, became

very important to their case. Now, the Court of

Appeal said that that was so, in the passage

underneath the amended defence:

Tyson 8 5/2/93

From this it is quite clear -

and so on. That passage.

TOOHEY J: Yes, but rather depends upon the way in which the

trial was conducted, Mr Fleming. I mean, it may

have been seized upon by the plaintiff as an

important issue at the trial, but we have been told suggests, not only that it was not, but rather that it was put to one side in the conduct of the trial.

MR FLEMING:  Yes. I should go back a little, Your Honours,

and say that the trial was conducted by the

plaintiff, that is the respondent here, on the

basis that the contract was actually formed by the delivery of a document some ten day, or seven days

later. The trial judge rejected that proposition.

Now, because the plaintiff contended that the

contract was formed on 16 or 17 October, it

obviously was the case that the representation made

on the 11th would have been pre-contractual on that

basis. But, of course, that did not succeed before

the trial judge. The trial judge came back and

found that the contract - well, indeed, he made no

direct finding as to the date of the contract -

said he did not have to, given the fact that the

case was not made out under the Trade Practices Act

in any event - there was no falsity shown in the

statement that was made.

So the Court of Appeal then had possession of

all of the facts before it and it is our submission

that, having all of the facts before it - and

indeed there could be no other facts called - it

was in a position to make the finding that it did.

What other evidence, for example, could be called in respect of the date of the contract? That was

already in contest between the parties, and they

both called evidence in respect of the date of the

contract.

The date of the representation does not appear

to be an issue at all, it was the result of a

conversation that was had on the 11th. So the

Court of Appeal was fully in possession of the fact

there. No other evidence could have been called in

respect of that. So on that basis, then, the Court

of Appeal specifically dealt with the question of

the pre-contractual representation. It had all the

facts there, and facts which were in contest at the

trial. There could be no other facts.

Then the Court of Appeal determined that they could make findings under Order 70 rule 11 of the

Supreme Court Rules. They are in the same

position, in effect, as the trial judge is, when

Tyson 9 5/2/93

all the facts are there. We say, all the facts

were, in fact, there. It was an open contest as to

the date of the trial.

Now, of course, our learned friends also

raised the issue of the date of the contract in

their notice of appeal, before the Court of Appeal.

Can I take Your Honours back to pages 17 and 18. I

do not say directly, but I say as a necessary

consequence of law, they raised the date of the

contract.

Page 17, paragraph 5 of the notice of appeal

to Court of Appeal says specifically:

given his findings in relation to the

conversation between Mr Tyson and Mr Roles on

11th October, 1986 that the learned trial
judge should have found that it was an agreed

term of the bailment between the Appellant and

the Respondent that the Respondent would
maintain a contract of insurance.

If it is an agreed turn, it could only be an

agreed turn if it was pre-contractual firstly, or
secondly if there was some relevant amendment in

relation to it. Paragraph 7 on the same page our

learned friends raised the issue:

that the learned trial judge should have found
that the conversation between Mr Tyson and

Mr Roles gave rise to an express term of the

contract of bailment pursuant to which the

Respondent was obliged to arrange a policy of insurance -

Again, Your Honours, we say that either it had to

be pre-contractual for it to be an express term or

alternatively there was a variation to the contract

to that effect.

TOOHEY J: Would it have been appropriate for the present

respondent to have filed some sort of notice of

contention before the Court of Appeal to the effect

that, even if the trail judge had erred in his

construction of the conversation, that the

defendant had failed to make good the allegations

in the amended paragraphs of the defence?

MR FLEMING:  Your Honours, I am not able to answer that

question, but I can say, in fact, that it was

raised directly in the written submissions put by

the respondent before the Court. of Appeal, that it

was post-contractual.

TOOHEY J: Yes, that is not quite the same thing, is it? I

mean, the notice of contention really presupposes

Tyson 10 5/2/93

that there had been an issue at the-trial.	An
argument put to the Court of Appeal by the
respondent might be simply inviting the been previously raised.

MR FLEMING:  Yes. Your Honour, whether or not that was

done, the issue was raised at the appeal, it was in

fact ventilated by our learned friends at the

appeal, and there was no request for there then to

be an adjournment, an amendment to the pleadings,

leave to call fresh evidence. There was no

amendment whatsoever to the notice of appeal, even

to refer it back, for example, to the trial judge

for the purposes of determining the date of the
contract. Again, we would be submitting that the
very propositions that our learned friends are

contending for, in fact, bind their behaviour in relation to their conduct of both the trial and,

more importantly, the appeal.

MASON CJ:  Mr Fleming, if the applicant had in the

Court of Appeal sought leave to amend the defence

by deleting the words "pre-contractual", what would

your attitude have been?

MR FLEMING: Probably to oppose it firstly, because

the - - -

MASON CJ:	On what ground?
MR FLEMING:	- - - trial in fact had been conducted on the

basis that it was pre-contractual, and they, on the

principles espoused by this Court - - -

GAUDRON J: But both of you conducted it on that basis, both

of you.

MR FLEMING: Equally then, Your Honour, our learned friends

have not raised some novel principle of law,
because they are bound by their conduct.	If we are

bound by our conduct, they are bound by their

conduct as well, and there is no new point of law

for this Court to consider in that respect.

TOOHEY J: Well, there is the administration of justice in

the particular case.

MR FLEMING: That can be the -

GAUDRON J:  And there is the question of the extent to which

a Court of Appeal may decide an appeal on a basis

which really was not an issue at first instance.

MR FLEMING:  Yes, but those principles

Tyson 11 5/2/93

GAUDRON J: And an issue of fact which has been adopted as

the conventional basis almost for the conduct of

the litigation.

MR FLEMING:  Your Honour, we would resist saying that it was

adopted for the purpose of the conduct of the case.

The reason why it did not emerge as an issue is, as

I have said before, the plaintiff contended for a

later date of the contract. It comes back then to

the factual basis upon which the Court of Appeal

could work.

GAUDRON J: 

It was an issue that really is not material to

the operation of section 52 of the Trade Practices
Act.

MR FLEMING: 

Yes, that is a different proposition, with

respect, Your Honour, because that issue has never

been ventilated, either before the judge at first

instance, nor before the Court of Appeal and

indeed, if it was raised it was expressly denied by

our learned friends at the trial. As my learned

friend who has already referred you to, almost the

last words on page 25 in the judgment of the Court

of Appeal. The last full paragraph:

initially submitted that it was not decisive
against the first defendant's reliance on the

Trade Practices Act, that the representation

may have followed rather than preceded, the

making of the contract. However, in the face

of the allegations in paragraphs 1B and lC of the amended defence, he candidly acknowledged

that it was not possible to advance such a

proposition.

What our learned friend in fact did at that point

is candidly acknowledge that he was estopped from

raising it because the basis upon which he had run

that they had always said it was a pre-contractual the trial, or at least the trial had been run, was representation.

TOOHEY J: It is a bit bizarre, is it not? If the plaintiff

sets up a case in that way and the trial is

conducted on that basis by both sides, to then, as

it were, hold it against the plaintiff, in this

case the defendant, that had done so. If issue had

been taken at the trial, no doubt these matters

would have resolved themselves.

MR FLEMING:  Your Honours, can I come specifically to the

principles involved then in the Court of Appeal,

and those principles appear to be, as has been

espoused by this Court over a long period of time,

if all of the facts are before the court, or before

an appeal court, they are at liberty to make

Tyson 12 5/2/93

findings. There may be an estoppel arising as to the conduct of the case. We say that if there is an estoppel arising it in fact arises against the

applicant here because they have chosen to conduct

their case in a particular way and before the
ultimate court of appeal raise the issue for the
first time, when they had the opportunity to do so

before the Court of Appeal as well.

All the facts were before the Court. The

Court of Appeal did not need any further facts.	It
gave an opportunity to the applicant here to be
heard in respect of the basis upon which they were
finding.	The applicant here did not ask for any

relief, either in respect of the pleadings at first

instance or the appeals and now they complain for

the first time, not having ventilated it in the

Court of Appeal, that there is something wrong with

that.

Your Honours, we would submit under those circumstances as well, our learned friends should

not be granted leave. There is no, in fact,

intermediate consideration even of the point for

this Court of Appeal. We go back further as well

and say there is no demonstrable wrong in any event

in the trial judge's judgment - we are so bold as

to say that. The situation arose in this way:

there was a discussion about pulling the trailer,

there was a discussion about rates that would apply

to the pulling of the pantechnicon. On the 11th

when the trailer was collected by the owner of the

prime mover, he said simply "Is it insured?" and

the owner of the pantechnicon, through its agent,

said "Yes".

MASON CJ: There is no need to take us through the facts, we

are familiar with the facts.

MR FLEMING:  Your Honours, we say there is no demonstrable

error shown in any event in respect of section 52

because what our learned friends are seeking to

imply into that is that something like this: in

the event that your comprehensive insurer pays out

a claim for damages which might arise from my

negligence, am I protected from a claim against me

by your insurer according to the principles of

subrogation. That is what our learned friends must

imply into that question, "Is it insured?"

TOOHEY J: Yes, but so far as we are concerned, in addition

to that we have before us a view, at least

tentatively expressed by the Court of Appeal, that

the trial judge may have been wrong.

MR FLEMING:  Your Honour, we would go so far as to say that

the Court of Appeal has not gone that far because

Tyson 13 5/2/93

they say in their judgment that even if that is

accepted, then there are problems.	They say it was
a persuasive argument by Mr Lyons.	They say they

may have been inclined to accept it, but even if -

the exact words were:

We might well have been disposed to accede to

this submission on behalf of the appellant.

However, even if accepted, there is another

obstacle -

so there is no intermediate finding of fact either.

What our learned friends are wanting to do as well

is to overturn findings of fact which have not been

considered by a court of appeal, or at least a conclusion has not been reached upon them by a

court of appeal, and it is asking this ultimate

court of appeal to make findings of fact as well.We

would be submitting that for all of those reasons

leave should not be granted.

Finally, and this has probably been gleaned

from what I have already said before, there is no

new point that should be before this Court. There

is no new principle except perhaps, as Your Honour

Mr Justice Toohey has already said, the

administration of justice in this particular case,

and that must be a very rare event in any event,

especially given the way that this case has been

conducted and given the fact that our learned

friends, we would submit, are estopped from the way

in which they have conducted the case, not taking

the opportunities that were presented to them.

If the Court pleases, they are our

submissions.

MASON CJ: Thank you, Mr Fleming. Yes, Mr Myers.

MR MYERS:  May it please the Court, it has to be conceded

that the date of the contract in this case was

always in issue, but it was always pre-contractual

as far as both sides were concerned.

Your Honours, it is submitted that the court

should have been slow before exercising the power

that they had under Order 70 rule 11. Could I

refer to Baird v Magripilis, (1925) 37 CLR 321, and

could I take Your Honours to the bottom of page 334

where this Court said that the -

authority -

that is, to make a finding of the sort that the

Court made in this case -

Tyson 14 5/2/93

will only be exerted where the evidence is
such that only one possible verdict could
reasonably be given upon the evidence: it is
a strong power and must be exercised with

considerable caution.

The court acknowledged that the evidence was

equivocal, it was not all one way, and the court
should have at least intimated to the appellant in

the court below that it intended to exercise the

power that it had pursuant to Order 70 rule 11 or

raised the question of Order 70 rule 10 which gave

the court power to receive evidence where the court itself acknowledged that the evidence was equivocal

and which also gave the court power to permit an

amendment where, as Your Honour the Chief Justice

has raised, if an amendment was permitted, the

problem that we now have would simply never have

arisen.

MASON CJ:  Mr Myers, can I direct your attention to the

draft notice of appeal. It seems to raise a

miscellany of points, including a reversal of

various findings of the trial judge.

MR MYERS:  Yes, it certainly does. The notice of appeal was

widely drawn but, as Your Honours will see from the

reasons of judgment of the Court of Appeal, the

appeal was argued only, as Their Honours say, on

the very limited ground, if I might locate that.

MASON CJ:  It seems to me that you have presented an

application for special leave to appeal which, if

it is to be granted, should be granted on the

ground on which it has been put forward, namely

that there was some irregularity in the proceedings

in the Court of Appeal.	You cannot really expect
this Court to engage on an exercise in which it is

going to review all the findings made by the

primary judge.

MR MYERS:  I do not seek to have this Court do that,

Your Honour.

GAUDRON J: 

Am I right in understanding that there was in

fact no application to the Court of Appeal for
leave to amend the pleading?

MR MYERS: 

I was not before the court, but as far as I am

aware, it was never raised.

MASON CJ:	You did say that earlier, I think.
MR MYERS:	Yes, that has always been my understanding.
GAUDRON J:	Was it clear that the Court of Appeal was going

to rule on this issue or only that it would - did

Tyson 15 5/2/93

it rule on the submission of Mr Lyons that this

matter should not be advanced?

MR MYERS:  Your Honours, again I am at a loss to say. The

Court of Appeal certainly took up the point when it

was raised by Mr Nunan on the Court of Appeal.	It
was certainly raised in his submissions that the

conduct was pre-contractual and as I understand it,

Mr Justice Davies really developed the argument

arising from that contention that it was

pre-contractual, that there was an onus effectively

upon the respondent to have led evidence at the

trial to prove that that was the case and having

failed to elicit evidence, it failed on its

defence.	They are my submissions, if it please the
Court.

MASON CJ:  The Court will take a short adjournment to

consider what course it will take in this matter.

AT 12.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.14 PM:

MASON CJ: There will be a grant of special leave to appeal

in this case. The grounds in the notice of appeal

to be filed must be confined to the point of

irregularity on the part of the Court of Appeal in

Queensland, that is, the point of irregularity that

you have argued. Mr Myers?

MR MYERS:  As the Court pleases. And, Your Honours, we

would, it would seem, have to raise the section 52

matter as being the principal point.

MASON CJ: Yes, that can be raised, certainly, but in the

light of the argument that has taken place, that is

a matter that if you succeeded in the appeal, would

be remitted.

MR MYERS:  As the Court pleases.

AT 12.15 PM THE MATTER WAS ADJOURNED SINE DIE

Tyson 16 5/2/93