Water Board v Moustakas

[1988] HCATrans 10

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll0 of 1987

B e t w e e n -

WATER BOARD (formerly Metropolitan

Water Sewerage and Drainage Board)

Appellant

and

JOHN MOUSTAKAS

Respondent

MASON CJ

WILSON J

BRENNAN J
DAWSON J

GAUDRON J

Moustakas(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 17 FEBRUARY 1988, AT 10.19 AM

Copyright in the High Court of Australia

C2Tl/l/RB 1 17/2/88

MR A.R. ABADEE, QC:  May it please Your Honours, in this

matter I appear with my learned friends,

MR P.R. GARLING and MR J.G. CLARK, for the appellant.

(instructed by R. Guthrie)

MR T. COLE, QC:  May it please the Court, I appear with my

learned friend, MR A. LIDDEN, for the respondent.

(instructed by Reimer, Heenan and Company)

MASON CJ:	Yes, Mr Abadee.
MR ABADEE:	Your Honours, the appellant has prepared copies

of a document incorporating both a chronology and

its outline of submissions. I have already furnished

copies to my friend, Mr Cole. Might I hand to the

Court seven copies.

MASON CJ:	Thank you.
MR COLE:	Your Honour, before my learned friend proceeds,

I would seek leave to file in Court an affidavit by

the solicitor who instructed in the original trial.

The purpose of the affidavit is to disclose the fact

that the issue which was said to be a new issue,

and much debate has occurred as to whether or not the

issue should be allowed to be argued because it is a

new issue, was in fact taken at the original trial

on behalf of the respondent.

MASON CJ:	Yes. What do you say about this, Mr Abadee?
MR ABADEE:	We would oppose that, if the Court pleases.
MASON CJ:	On what grounds?
MR ABADEE:	Your Honours, we would submit to the Court that the issue as to whether the respondent had sought to raise
a new case at the Court of Appeal level was determined by that court on the record, and on the materials, and on argument, and we would submit that the point
is foreclosed.  (Continued on page 3)
C2Tl/2/HS	17/2/88
Moustakas(2)

MR ABADEE (continuing):  No attempt was made to put this

affidavit material before the Court of Appeal and

no attempt was made to put this affidavit material

before this Court when it entertained the appellant's

application for special leave. Your Honours, when

the matter was before this Court it was submitted

on behalf of the appellant that all judges of the

Court of Appeal had agreed that the case that was sought to be put to the Court of Appeal was a new

case.

There was some debate as to whether that was

necessarily so. We would submit that that was

resolved in favour of the appellant and that this

Court accepted, as did the Court of Appeal, that

the new case was raised for the first time before

the Court of Appeal. Mr Robberds, QC who appeared

for the plaintiff/respondent on the special leave application

did not purport to suggest in any way, shape or

form that there was a mistaken assumption or that

the Court of Appeal was in error in holding that

a new case was sought to be debated before them.

We would submit, therefore, that the issue that my friend seeks to tender an affidavit upon

is an issue that is foreclosed and is no longer

open. We would submit that there was extensive

debate before the Court of Appeal, not only as
to the correct principle of law but whether, in

fact, as I have already submitted to this Court

a new case was being sought to be raised for the

very first time. We would submit for those reasons

that this controversial material - I have seen
the affidavit, it was served upon us yesterday -

we do not accept the truth of the matters contained

therein; they are matters, we would submit, in

controversy and they were inter alia matters that

were canvassed or discussed before the Court of

Appeal. They are our submissions on the acceptance

of the affidavit.

(Continued on page 4)

C2T2/l/ND	3	17/2/88
Moustakas(2)
MASON CJ:	Yes.	What do you say, Mr Cole, 1n response

to that?

MR COLE:  Your Honour, we would submit that the matter

was not conceded in the application for special

leave. One of these submissions, as I understand

it, put by Mr Robberds was in these terms - it

is paragraph 6 of the submissions which were

handed uo in that application.

''It was not conceded in the Court of.Appeal

by the present respondent that the ground upon

which he succeeded had not been put at the trial.

The judgment of.Justice Y~ldham at page 11

appears to proceed on the basis that a submission
along the lines of that which found favour with

the Court of Appeal had been made at the trial.

Otherwise there was no need for His Honour to

have referred to barricades when it had already

been found that the bus did not move out lane l."

Whether or not the matter was specifically raised

in the Court of Appeal may well depend upon
the way in which the Court of Appeal proceedings

proceeded and the affidavit which I seek to

tender seeks to set out the way in which those

proceedings were heard and to explain why it

was that no evidence was placed before the court

that as a matter of fact the submission was

taken before the trial judge.

The affidavit deposes to the fact of a

precise submission put by my learned junior

to the trial judge and the trial judge was obviously

disinterested in it but if we come to the argument

on the matter we will ask Your Honours to consider

the way in which the original trial proceeded

and it will make clear why it was obvious that

any competent counsel would have put, and in

fact did put, the submission which was said

to be new before the Court of Appeal. Whether

the matter was raised before the Court of Appeal

or before this Court in the leave application,

we would submit if it be the fact, as this affidavit

deposes, that the point was taken it would be quite

wrong for this Court now to say that there should
not be a new trial to allow that point to be

heard because to do so would be to bar the injured party from having litigated an issue of negligence
which, in fact, he raised and which was rejected.

(Continued on page 5)

C2T3/l/AC	17/2/88
Moustak~s(2)

MASON CJ:  Now, can you refer us to the passage in the

transcript on the special leave application

where you say Mr Ibbberds stated to the Court

that the point was taken at the trial?

MR COLE:	I am sorry, Your Honour, I do not have a copy of
the transcript.  I was briefed only with the note .....
submissions .•... I understood were filed· in the Court.
MASON CJ:	My reading of Mr Robberds' submissions indicates
that he was asserting that there was no statement
of new principle on the part of Mr Justice Priestley
and that, on that score, the application for special
leave ought to be refused.
MR COLE:	That would appear to be so, Your Honour, from a
quick look I have had of the transcript.
MASON CJ:	I cannot see anything in the transcript that contains

any assertion by Mr Robberds that this was not a new

point.

MR COLE: Well, Your Honour, as I say, I have only been briefed

with the resnondent's submissions to this Court on

the application for special leave.	I had understood
they were filed and were before the Court.	They may

not have been referred to by Mr Robberds but the 9assage

I read to you was, in fact, paragraph 6 of those

written submissions.

BRENNAN J: There must have been an affidavit in support of the

application for special leave which asserted that the

point was not taken. My recollection is dulled by

the passage of time but I am almost certain that was

so. Well, the reason why my recollection is dulled,

I was not sitting on it. I thought I was.

MASON CJ:  It goes to show how comprehensive

His Honour's knowledge of these cases is.

It seems incredible to me that if your side was

always of the opinion that this point was taken at

point raised by Mr Robberds in response to the	the trial, that this would not have been the first
special leave application and what is more, one would
have expected an affidavit to be filed saying this
application is sheer nonsense.

MR COLE: All of those things are entirely true.

(Continued on page 6)

C2T4/l/SH	5	17/2/88
Moustakas(2)

MR COLE (continuing):  Your Honours will appreciate that the

plaintiff's case before the trial judge,in essence,

was against two defendants, the first and the -

MASON CJ: Yes, I appreciate this fine line about the

particulars of allegation of negligence and how

that was dealt with in the Court of Appeal, I follow

that, but none the less one would have expected,if

Mr Justice Priestley's views about the point and

purpose of that particular of negligence was

being disputed by your side following the Court

of Appeal judgment,that that would have been at

the very forefront of the resistance to the

special leave application and it was not?

MR COLE:	Your Honour, there is nothing I can sav about that
It is obvious that - with great respect, it is obvious
that it ought to have been specifically put to
the Court of Appeal  the point was not a new
point.
MASON CJ:	Now, Justice Brennan now points out to me, and I

think here is on much firmer ground than he was

before, that appearing on the special leave

application was Mr Lidden with Mr Rose and

Mr Lidden, of course, was the counsel who conducted

the case at the trial for the respondent?

MR COLE:  Yes, Your Honour.

MASON CJ: I find it incredible, in those circumstances,

that the submission that you are proposing to

make was not made on the special leave application?

MR COLE:	Your Honour, all I can say is that the transcript does not disclose that it was. Paragraph 6 of
the written submissions, which I had understood
were placed before the Court, but that doPs not
appear from the transcript but which, no doubt, were
filed in the Registry on that application, made it
clear that it was not conceded that the point had
makes it clear that the point was specifically not been taken and the evidence we wish to put on taken. ·
BRENNAN J:	Was there an affidavit saying that the point was

not taken, filed by your opponent. in the

application for special leave or raising that as

the point for argument?

(Continued on page 7)

C2T5/l/SR 6 17/2/88

Moustakas(2)
MR COLE: Implicitly, paragraph 13 of the affidavit 1n support

says:

The questions of law involved in the case

which it is desired to argue before this Honourable Court

on behalf of the applicant are: (a) whether

the respondent was entitled to appeal to rely

upon an issue not argued at the trial of the

matter.

So it is implicit although not specifically stated

that the matter was not raised.

MASON CJ:  Now, I do not know anything about the written

outline of argument.	The transcript does not record
that such a written outline was handed in.	I have

no recollection of such a written outline. It

is unusual to say the least that on a special leave

application, particularly in a case of limited

compass like this one, for counsel to hand up a

written outline. Mr Abadee, do you - - -

MR ABADEE:  My recollection is that there was no written outline lodged on behalf of the respondent. Nor

was there any affidavit, to my recollection, filed

on behalf of the respondent. And, of course, as

my friend, Mr Cole, has quite properly done, he

has referred to paragraph 13 in the affidavit in

support of the appellant's leave application.

MASON CJ:	Yes, well you cannot improve on what was said.
MR COLE:	No, I cannot.
MASON CJ:	Do you want to say anymore, Mr Cole?
MR COLE:	No, Your Honour, only that if it be that the point was taken then, we would submit that it would be
quite un~ust if the argument were to proceed upon the basis that the point had not been taken.

MASON CJ:  But when you say that, you have got to recognize

that appellate courts, particularly an ultimate

appellate court, must deal with cases on the basis

of the record as it finds it. The court cannot

be exposed to a situation where it is, in effect,

conducting a trial within an appeal to determine

what actually happened at a trial at first instance.

It is the duty of the parties to ensure that the

record is in an appropriate condition when matters

go on appeal and in particular when they come to

this Court.

(Continued on page 8)

C2T6/l/MG	7	17/2/88
Moustakas(2)

MR COLE:	Your Honour, I have put the submissions that I
wish to put in relation to the matter.
MASON CJ:	By majority, the Court declines to receive the

affidavit which the respondent seeks to tender.

Yes, Mr Abadee.

MR ABADEE:  If Your Honours please. Mr friend,Mr Cole, has

not yet handed up the submissions on behalf of the submission which, no doubt, he will hand to the Court, do not arise in consequence of
the respondent. I have been in receipt of them.

Your Honours' ruling. There are two matters - - -

MASON CJ:  I mean, we have not got his submission. What is

the point of making this submission on to - - -

MR ABADEE:  Your Honour, the point is that my friend has

got, in the appeal book, a cross appeal which he

would need the leave of the Court, at the outset
when the matter is called on under Order 70

rule 6, to argue and that is the reason why I have

mentioned it at the moment, Your Honour. There

are two matters in the submission which we submit

just cannot, in any event, arise either. Might

I just take Your Honours to Order -

MASON CJ: That will arise in due course when Mr Cole is

called upon, Mr Abadee, and if he, as it were,

makes ground with us you will have the opportunity

of responding then.

MR ABADEE:  Your Honour, I only have regard to the explicit

language of Order 70 rule 6 and I will say no more.

May it please Your Honours, the chronology sets

out the background to this case. Proceedings were

commenced by a statement of claim on 23 August 1979.

That appears at page 1 of the appeal book. The

plaintiff claimed that he received injuries on

26 August when struck by a bus and sued the Public
Transport Commissionerand the Water Board.	The
trial took place on 19 June 1984.

Mr Justice Yeldham gave judgment in favour of both

the bus operator and the employer on that date.

(Continued on page 9)

C2T7/l/ND	8	17/2/88
Moustakas(2)

MASON CJ:  I think we can relieve you of an account in

chronology of what occurred. The members of the

Court have read the judgments. We are familiar with the judgments and you can proceed straight to the issues that arise.

MR ABADEE:  If Your Honours please. Your Honour, the

question that arose for consideration before the

Court of Appeal was whether the new case sought to be

made before that court could be alternatively relied

upon, or even argued upon appeal in terms of a

threshold situation. The judgments of the Court of

Appeal, accepting that there was a new case, revealed

a different test for determining whether indeed at the

threshold the new case could be argued.

Mr Justice Priestley considered that the

appropriate question to ask was whether there was
merit in the new case, presumably on the basis that
if there was no prima facie merit, then it would be
an exercise in futility to determine whether indeed

the SUTTOR test, or any other test, applied. Having

determined in his view, by reference to principles of

common knowledge, that there was indeed merit in the

new case, His Honour Mr Justice Priestley's approach

was then to involve himself in a hypothetical
discussion as to whether the merit prevailed in favour

of the respondent, or whether the merit in respect of

the new case prevailed prima facie in favour of the

appellant.

Having determined that there was overwhelming

merit in the new case, and nobwithstanding His Honour

accepted that had the new case point been raised at

the hearing the appellant would have been in a

position to call evidence as a matter of possibility

that could have defeated it, His Honour nevertheless
took the view that comparative merit or indeed

overwhelming merit required that the matter be

resubmitted for hearing before a new court; in other

words, not that the court itself could determine the

merits, but that there should be a new trial of the
merits.

His Honour seems to have applied two tests;

first of all, what one might perhaps call the

comparative merit test, and then a secondary test,

namely whether it would be more unfair to the appellant,

or whether it would be more unfair to the

respondent for the new case not to be permitted to

be argued before the Court of Appeal.

(Continued on page 10)

C2T8/l/HS	9	17/2/88
Moustakas(2)

MASON CJ:  What do you mean by the comparative merit test,

I am not sure that I -

MR ABADEE:  What His Honour said was, well let us first of

all look at the merits of the new case. His Honour

Mr Justice Priestley seems to have come to the

view that if one looked at the new point that it

looked as though it was prima facie an overwhelmingly

strong case for the plaintiff and that the

arguments and evidence that would be capable of

being adduced by the respondent to meet that new

case was perhaps more academic than real. So that

perhaps if I could answer Your Honour the Chief Justice

that way. His Honour having come to the

prima facie conclusion that that was so then

applied the principle of comparative fairness, if

I may use that expression, would it be more unfair

to one party or the other if that case were not

permitted to be raised and argued. He came to the

conclusion that because of the overwhelming

prima facie strength of the new point that it would

be more unfair to the plaintiff not to have the

opportunity of having it argued before the

Court of Appeal.

However, His Honour, recognized that the

defendant did indeed, or the appellant did indeed

have an answer or at least the possibility of an
answer to that case and therefore felt that

notwithstanding that it was a new point, it would

nevertheless be unfair to the appellant to be

deprived of the opportunity of meeting it and so

an order was made by Mr Justice Priestley, with

whom Mr Justice Hope agreed that the new case or

the new alternative case, together with the original

case as rejected by the trial judge should both

be resubmitted for a new trial. He did that because

he recognized that there was the possibility of

evidence capable of being called to meet it.	He
did that because he recognized that there were
potential conflicts of fact and law that would
arise in respect of, amongst other things the new
case.	He recognized that questions of contributory

negligence might arise in the event of the new

case being resubmitted for hearing along with the

old case. And it was acknowledged by Mr Justice Priestley

that the Court of Appeal itself could not

determine the new case because of the possibilities

of which I have mentioned.

(Continued on page 11)

C2T9/l/SR	10	17/2/88
Moustakas(2)

MR ABADEE (continuing):  And as will be seen in the

submission I have not been able to find any

authority where the Court of Appeal has, itself,

allowed a new case to be put to it in circumstances

where it has been unable to determine the new

case as well as the old case itself without

sending the matter back for a new trial.

Mr Justice McHugh, we submit, correctly

took the view that the proper approach was as

follows: there is a preliminary inquiry to

determine whether it is a new case that is sought
to be made before the Court of Appeal - that
is the preliminary inquiry, we would submit,

not the test. Having determined that there

is a prima facie situation of merit in that

new case, without assuming that there is necessarily

merit, then there is one sole test and one

indivisible test for determing whether that

new point can be raised and that test is the

test as set forth in the decision of this Court

in SUTTOR's case. His Honour, in our respectful

submission, having determined, or assumed, that

there was a prima facie case of negligence accepted

that there was a case that could be put in reply
to it and could have been put in reply to it
had it been raised at the trial, and, in our

respectful submission, correctly applied the one indivisible test set forth in SUTTOR for

the purposes of determining whether that new
case, itself, can be argued or whether at the

threshold the new point cannot be argued at

all.

Your Honours, in the outline of written

submission I have cited what we would regard as

being the authorities which are supportive of the

indivisible approach of Mr Justice McHugh, namely,

that there is but the one test. Most of the

cases are collected in the recent decision of

this Court in the case of COULTON V HOLCOMBE,

an appeal from the Court of Appeal of New South	162 CLR 1, where this Court by majority allowed
Wales by an appellant who claimed, amongst other
thing~ that the Court of Appeal had incorrectly
permitted a ground of appeal in relation to
a new case to be added by way of amendment when
the matter came on before it.

(Continued on page 12)

C2Tl0/l/AC	11	17/2/88
Moustakas(2)

MR ABADEE (continuing):  We would submit that COULTON's

case is the end of a line of authority commencing

with the decision of SUTTOR V GUNDOWDA PTY LTD,

(1950) 81 CLR 418 at 438 where this Court laid

down what it considered to be the appropriate principle

applicable in determining whether a new point could be

raised before it at the threshold. The relevant

passage is cited in the judgment of Mr Justice McHugh
but could I ask Your Honours to have regard, prior to looking at COULTON's case, to the principle stated in

this Court in SUTTOR and, perhaps, that is the

commencing point, at page 438. On the previous page

one will note in the last paragraph that what was

sought to be raised before the High Court was a

defence now raised for the first time. It was not

sought to be raised before an intermediate court

but the principle is, in our respectful submission,

the same whether it be an ultimate appellate court

or an intermediate court of appeal.	At page 438,
this Court said at line 4:

The circumstances in which an appellate

court will entertain a point not raised
in the court below are well established.

Where a point is not taken in the court

below and evidence could have been given

there which by any possibility -

and I emphasize, with respect, the words "any

possibility" -

could have prevented the point from

succeeding, it cannot be taken afterwards.

Now, I have given in the outline of submission and

the chronology the various references where it is

common ground, we would submit, that all judges of

the Court of Appeal accepted that there was any

possibility or a possibility that, had the point

been raised and taken at the trial, the appellant

could have called evidence which could have prevented

the point from succeeding by the test of "any

possibility".

The High Court in SUTTOR cited KAVANAGH's case

and the judgment of Lord Watson and it is a short

one, if I may read it:

"When a question of law is raised for the

first time in a court of last resort, upon

the construction of a document, or upon

facts either admitted or proved beyond

controversy -

and, in our respectful submission, this is not such

a case in terms of meeting the test of upon facts

either admitted or beyond controversy

C2Tll/1/SH	12	17/2/88
Moustakas(2)

it is not only competent but expedient

in the interests of justice, to entertain

the plea. The expediency of adopting

that course may be doubted, when the plea

cannot be disposed of without deciding nice

questions of fact, in considering which the

court of ultimate review is placed in a

much less advantageous position than the

courts below."

Now, we would submit that that passage applies

unequivocably and has been correctly applied by

Mr Justice McHugh to the present case. We do that

for the following reasons: it is common ground

between the judges of the Court of Appeal that there

was any possibility that evidence could have been

adduced by the appellant which could have prevented

the point from succeeding at the trial. Secondly,

we would submit that it is not expedient for the

Court to entertain the hearing of the new point when the plea cannot be disposed of without deciding nice questions of fact.

(Continued on page 13)

C2Tll/2/SH	13	17/22/88
Moustakas(2)

MR ABADEE (continuing):  Now that is precisely the situation

in this case, whether one looks at the majority

judgment or the minority judgment. The majority

accepted that there would be nice questions of

fact in relation to the new point and that they

could not be resolved by the appellate court but

there must be a new trial to determine them. To

like effect was the view of Mr Justice McHugh.

Again, in respect of the issue of contributing

negligence, Mr Justice Priestley expressly declined

to consider it because he accepted that contributory
negligence involved mixed questions of fact and
could only arise to be considered at a trial in
the event of there being a new trial.

So we would submit to this Court that the approach that has commended itself to

Mr Justice Priestley and Mr Justice Hope is

inconsistent with the principle in SUTTOR, whereas,

in our respectful submission, the principle of

SUTTOR has been quite properly and carefully applied

as the singular test by Mr Justice McHugh.

BRENNAN J: Mr Abadee, all of this is posited on the fact

that it is a new case or a new point?

MR ABADEE:	Yes, Your Honour.
BRENNAN J:	Do we have to consider whether that proposition

needs examination? In other words, if you have

got a negligence case and the facts as displayed

by the plaintiff or as found by the trial judge

reveal negligence in some respect or another, but

the plaintiff tacks his flag to the mast of his

set of particulars and does not raise a particular

which the judge ultimately finds, or ought to find,

is the real particular of negligence, what is the

judge to do?

MR ABADEE:  Your Honours, could I answer Your Honour

Justice Brennan as follows:	the cause of action
is negligence; however, pleadings and particulars

and the way the manner in which the case is

conducted at the trial really determine the issue

within that cause of action.	Or may I put it this
way:	the pleadings and particulars have been said

to furnish a statement of the case sufficiently

clear to allow the other party a fair opportunity

to meet it and they define the issues for decision

in litigation. I suppose there can be a qualification

to that in the sense that the pleadings and the

particulars may be qualified by conduct of the

parties at the trial so that perhaps a different

issue, falling within the cause of action of

negligence - a different issue of fact, falling

within the cause of action arises for determination.

C2Tl2/l/ND	14	17/2/88
Moustakas(2)

MASON CJ:  Mr Abadee, these words are all very fine but

here the particular was given that there was
negligence in failing to provide a barricade.

Now the mistake was in relating that allegation

to, as it were, on-corning traffic, instead of

relating it to the movement of workers from lane

one to lane two. When you say this is a new point,

it is a description given to a departure but is

in a very different complex from the description

of new point given to departures in cases like

SUTTOR V GUNDOWDA and the traditional cases.

MR ABADEE:  Can I take Your Honour to that particular which

looms large and which was discussed, amongst other

things, by Mr Justice McHugh. It appears at

page 2 - a:

Failure to provide any or any adequate barriers

so as to delineate -

presumably to depict or to describe or to mark -

that portion of Elizabeth Street upon which

the plaintiff was working;

Now, the plaintiff's case at the trial was, in

relation to that particular, in our submission,

and his sworn evidence was to this effect.

I was in lane one. That particular is addressed

to the need to erect something by way of barrier

or otherwise to prevent the bus from passing

from lane two into lane one where, at all

material times, I was working.

That was the issue, in our respectful submission,

from start to finish.

(Continued on page 16)

C2Tl2/2/ND 15 17/2/88

Moustakas(2)
:MR ABADEE (continuing): That particular, in our respectful

submission, cannot be read in isolation from the

issue as formulated and determined by the

plaintiff's own sworn evidence.

DAWSON J: That is putting it a bit high as to delineate

where the lane is, not to prevent the bus from

passing?

:MR ABADEE:  Your Honour, I treated the word delineate as

meaning depicting - - -

DAWSON J:  Yes, exactly.

:MR ABADEE:  - - - but depicting in relation to the plaintiff

working in lane 1, not to prevent him, as I

would understand that particular and the issue

formulated at the trial, not to prevent him from

passing from lane 1 into lane 2, that was

never his case. He had sued two defendants in

respect of his accident. His sworn evidence was

that at all material times he remained in lane 1 -

DAWSON J: All I am saying is that the word delineate helps

your case?

:MR ABADEE:  Yes, thank you. So that we would submit that -

and I adopt what Your Honour Mr Justice Dawson said.

Your Honours,we would submit that the particular

has been properly looked at in context of the

issue as formulated by the trial judge, both by

the trial judge and more particularly by His Honour

Mr Justice McHugh. And, Your Honours, if there be

any doubt about it I have given Your Honours the

evidentiary references to the plaintiff's sworn

evidence from which he never departed, and of

course, it was never in the plaintiff's interest to

put an alternative case because his sworn evidence,

pages 11, 12 and 28, was that at all material times

he remained in lane 1. That was his case. I mean

the cause of action was negligence but that was

the issue of fact supporting the case in negligence.

And if there be any doubt about that proposition,

even post-verdict when the plaintiff filed his notice of appeal, which appears at page 60 -he

took a specific ground of appeal originally which

he later on abandoned at the trial but this is

post-verdict:

That His Honour erred in finding that

the Plaintiff moved into the second lane

at the time of the collision.

And that is at page 60, lines 25 to 30. So that

we have a context, we would submit, for that

particular. We have a context for it in terms of

the plaintiff's sworn evidence at pages 11, 12, and

28.        We have a context for it in terms of the way

C2T13/l/SR	16	17/2/88
Moustakas(2)

the case was conducted at the trial. We have a

context for it in terms of a plan that was submitted

and which appears at page 55, which is exhibit A,

which was a plan annexed to a letter furnishing

further and better particulars by the plaintiff's

solicitors as to where the accident occurred. And

if one looks at the plan at page 55, which was

submitted by - under covering letter of 5 October 1982,

that plan indicates that the plaintiff was making

a case and relying upon a case of negligence, but

based upon an issue of fact that the accident

occurred in lane number 1.

DAWSON J:	How does it indicate that?
MR ABADEE:	Your Honours will see at page 55, there is a

small "x" to be seen on the western side or on

the left-hand side, Your Honour Justice Dawson will

see the words "bus stop" - - -

DAWSON J: Yes, I see the cros~ it looks to be right on the

line?

MR ABADEE:  Yes. Your Honour, the plaintiff's evidence was

that he was six inches to one foot from the line

but on the left-hand side of that line. Your Honours,

we would submit that the matter - the issue

of fact raised under the cause of action negligence

is correctly dealt with by His Honour Mr Justice McHugh

and we can put it no better, we would submit,

than at page 83, line 15, where he discussed the

meaning of that:

vague and general "particular" that the
employer failed "to conduct its operation

so as not to subject the plaintiff to

unnecessary risk".

And then His Honour, at lines 18 to 25, then went on:

(Continued on page 18)

C2Tl3/2/SR	17	17/2/88
Moustakas(2)

MR ABADEE (continuing):

His Honour records counsel as submitting

"that some type of post or other barricade

should have been erected in the circumstances

to have protected people such as the plaintiff

working in a nearside lane". But this submission

does not indicate that the plaintiff was relying

on an alternative case of negligence. On

the contrary it demonstrates that the plaintiff's
case was that the defendant failed to protect

the plaintiff from being injured while working

in Lane 1.

Then His Honour proceeds to say what the proper

conclusion is. We would therefore submit to this

Court that when one puts that particular in context, the issue of fact that arose at the trial at all

material times was a cause of action in - I am

sorry, the issue that arose at all material times

throughout the trial was:  was there negligence

on the part of the employer in failing to protect

the plaintiff from being injured in lane number 1.

And I put the submission in those terms.

We would also submit that as to the role

of particulars and as to the need to determine, 1n our
respectful submission, the issue of negligence
on the pleadings on the the particulars and the

way the case is conducted at the trial, might I

refer Your Honours to the decision of the House

of Lords in the case of ESSO PETROLEUM CO LTD V SOUTHPORT

CORPORATION, (1956) AC 218. And what was sought to be

seized upon by the appellant - or the appellant before one of the courts was findings made by

the trial judge after a trial but which did not

arise in connection with the case as pleaded or

as particularized or indeed, in accordance with

how the issue was debated at the trial. Your Honours,

I will just give, if I may, some references - some

very fast references, Your Honour.	At page 237,
Lord Jowitt stated:
If the plaintiffs' case had been put in the
alternative, either that there was some navigational
error or that the ship was unseaworthy, the case would no doubt have been developed on wholly different lines. Had any such case
been made, the ambit of discovery would have
been enlarged ..... It is idle to specualate
what would have happened if such a case had been made.

In the present case every allegation

of negligence has been answered by the finding
of the judge, and there was no allegation

of unseaworthiness.

C2Tl4/l/MG	18	17/2/88
Moustakas(2)

Your Honours, at page 238, Lord Normand, in the

second paragraph of His Lordship's judgment

set forth that there were allegations of negligence

in relation to the navigation of the vessel into

the channel when the steering was erratic:

These were the allegations which the respondents

set out to prove.

As did the plaintiff in this case, that he was

injured in lane 1:

There was no notice in the pleadings of any

other cause of action, such as that the appellants
negligently sent the vessel to sea in an unseaworthy

condition.

The function of pleadings is to give

fair notice of the case which has to be met

so that the opposing party may direct his

only with the negligence alleged.

evidence to the issue disclosed by them.

Indeed, there was no direct evidence in this case

at all as to the type of barriers that could have

been put in: shape, size, weight, dimensions,

height or otherwise. What the Court of Appeal

did, in our respectful submission,was to make an

assumption that it is a matter of common knowledge,

everyone knows that barriers could have been put

in. But I make the one point that there was no

direct evidence on the issue of barriers at all,

the practicality, suitability of them or other

problems which might confront an appellant such

as my client in terms of putting them in without,

for example, permission from other statutory

authorities, the practicality of doing so and so

on.

(Continued on page 20)

C2Tl4/2/MG	19	17/2/88
Moustakas(2)

'MR ABADEE (continuing):  Your Honours, at pages 239 to 240

Lord Morton adverted to the necessity of having a

case of negligence determined on the pleadings,

the particulars and the issue formulated and tendered

for trial, and then we would rely very heavily upon

the judgment of Lord Radcliffe to like effect, at

page 241 where His Lordship was saying it would be

not right to decide the case other than in accordance
with the pleadings, the particulars and the issue of
negligence that was tendered for determination by

the plaintiff, and in our respectful submission, he

never departed from it - page 11, page 12 and page 28.

The problem arose when his sworn evidence was not

accepted, but had his sworn evidence been accepted

he would never have been interested in making an

alternative case based upon something to prevent him

from getting from lane 1 into lane 2 because his case,

had it been accepted, was, and always was, "I was
injured in lane 1, and that is where the area of

negligence arose in failing to protect me from

being injured in lane l". It would have been an

inconsistent case to do it otherwise, in our

respectful submission.

Your Honours, I have given Your Honours the references to the evidence from the plaintiff from

which he never departed. His evidence was that he was

six to twelve inches inside. that lane and he never

stepped outside. Your Honours, the question of

whether this was a new case I have already discussed.

We would submit that all the members of the Court of

Appeal have accepted the proposition that what is

sought to be tendered was an issue of fact that never

indeed arose at the time.

May I just take Your Honours to the Judgment of

Mr Justice Yeldham on that point, to indicate the one

and only claim that the plaintiff was making -

page 56, lines 25 to 30:

The plaintiff claims that throughout

One would note there that that encapsulates the case in he was working entirely in lane one.

the singular. That was always his case from start to

finish, even in relation to the particular of

negligence that is set forth in the statement of

claim. That there was only one singular case, we

would say, is supported by the further observations of where he is talking about a suggestion of the plaintiff:

that some type of post or other barricade

should have been erected in the

circumstances to have protected people

such as the plaintiff working in the

nearside lane.

C2Tl5/l/HS	20	17/2/88
Moustakas(2)

When one relates that back to what His Honour earlier

said in terms of what was the single issue of fact

and the single claim it is abundantly clear that the

plaintiff's case at all times was one involving an

assertion, "protect me from being injured in lane l".

MASON CJ:  Mr Abadee, can we bring you back to this concept of the

new point, and can we focus attention on the particulars
that were actually given and, in effect, the need

to give an amended particular in order to cover the prima facie case of negligence that appears to have

emerged on the facts as established.

(Continued on page 22)

C2Tl5/2/HS	21	17/2/88
Moustakas(2)

MASON CJ (continuing):  Now, first of al4 we ought to

direct your attention to the joint judgment

of the Court in DARE V PULHAM, 148 CLR, particularly

at page 664 which deals with the function of

pleadings and particulars.

MR ABADEE:	Yes, Your Honour.
MASON CJ:	And I should direct your attention to the last

sentence in the long paragraph on that page.

It states this:

Particulars may be amended after the evidence

in a trial has closed (MUMMERY V IRVINGS PTY LTD),

though a failure to amend particulars to

accord precisely with the facts which have

emerged in the course of evidence does

not necessarily preclude a plaintiff from

seeking a verdict on the cause of action

alleged in reliance upon the facts actually

established by the evidence -

there is a reference to LEOTTA V PUBLIC TRANSPORT

COMMISSION. Now, in that cas~ which is reported

in 50 ALJ~ there is a joint judgment by

Justices Stephen, Jacobs and myself which at

page 668, after referring to the relevant passage

from MUMMERY V IRVINGS PTY LTD, says:

These observations apply a fortiori

to a case where amendment would not raise

a fresh issue based on a different duty

of care but would only amend the expression
of the course of events so that the facts

pleaded would conform with the evidence

given. An amendment to allege a different

duty of care, namely, that of occupier

to invitee -

that is as distinct from negligence -

was rightly refused by the trial judge	upon the ground that there was no evidence
to support an issue of breach of that
different duty.

MR ABADEE:  Your Honour, my recollection is that in

DARE V PULHAM this Court also said that the

appellate court was - I have a note of this,

I do not have the judgment in front of me, but

I am relying upon recollection - that the appellate

court is not the place for issues to be determined.

And then it went on to indicate what were, I

think, the three tests in relation to the function

of particulars.

C2Tl6/l/AC	22	17/2/88
Moustakas(2)

First of all, that "they furnish a statement

of the case, sufficiently clear to allow the

other party a fair opportunity to meet it"; secondly, "they define the issues for decision in the litigation

and thereby enable the relevance and admissibility

to be determined at the tr i al" , and third 1 y , that

"they give a defendant an understanding of the

plaintiff's claim in aid of the defendant's

right to make a payment into court."

The first two, if I may answer

Your Honour the Chief Justice, we would say

are particularly relevant, that one is not talking

about in reality, we would submit, varying or

different duties of care. What one is talking

about is really particulars in terms of defining

the issues for decision.

MASON CJ:  But if you go back to that paragraph the Court,

in the joint judgment, does deal with the three

functions that you refer to.	Having said that
the Court then says:

Apart from cases where the parties choose

to disregard the pleadings and to fight

the case on issues chosen at the trial,

the relief ..... must be founded on the pleadings.

And then there is this sentence:

But where there is no departure during

the trial from the pleaded cause of action,

a disconformity between the evidence and

particulars earlier furnished will not

disentitle a party to a verdict based upon

the evidence.

Now, the critical expression is "pleaded cause of action".

MR ABADEE:

Yes. The pleaded cause of action is negligence

and my recollection of DARE V PULHAM is that

it would not necessarily disentitle rather than disentitle. In other words, Your Honour, the - perhaps I - - -

MASON CJ:  Now, the word "necessarily" does not appear

in the report.

MR ABADEE:  Your Honour, in Mr Justice McHugh's judgment,

page 84, His Honour referred to MUMMERY V IRVINGS

which is, of course, an authority quoted in

DARE V PULHAM. It seems to be that

MUMMERY V IRVINGS expresses, looking at the

passage cited by Mr Justice McHugh, the proposition

that Your Honour the Chief Justice read, in

a slightly different way .. You have the cause of

action being singular and indivisible, namely,

negligence.

C2Tl6/2/AC	23	17/2/88
Moustakas(2)

MR ABADEE (continuing): However, the passage cited in

MUMMERY V IRVINGS seems to say that:

If the plaintiff particularises the

transgression or transgressions -

in relation to that cause of action

relied upon the defendant may, subject

to the discretion of the court, hold

him to the issue or issues of fact so

raised."

So what we are saying is that when one reads

DARE V PULHAM against the background of what

MUMMERY V IRVINGS says, in our respectful submission,

where you have a situation of the plaintiff

particularizing his cause of action or, alternatively,

if not particularizing, choosing to fight that action

in a particular way and raising certain issues of fact

in relation to it, although he is not in truth
circumscribing or qualifying the single cause of action,
nevertheless, once there is either a particularization

or, alternatively, a decision made to fight the case

in a particular way which represents a departure from

the pleadings and from the particulars, then in our

respectful submission the DARE V PULHAM test does not

apply.

MA.SON CJ:  Yes. Now, Mr Abadee, Justice Brennan has pointed out

to me that the word "necessarily" appears in the later

sentence in DARE V PULHAM, not in the earlier sentence

that I put to you but the last sentence does say:

Though a failure to amend particulars to

accord precisely with the facts which have

emerged in the course of evidence does not

necessarily preclude a plaintiff from

seeking a verdict - - -

MR ABADEE:  Yes. Well, Your Honour, I would adopt that and

then read that passage with the approach in

MUMMERY V IRVINGS and with the approach in ESSO's

case and submit to the Court that where there are

pleadings and particulars and they set the parameters

for the debate, in our respectful submission, it would

be a most unusual case, a rare case rather than the

general case, to permit the plaintiff who has chosen

to conduct his case in accordance with his particulars

and/or to fight the case on a particular issue of fact,

as a matter of choice, to - - -

BRENNAN J: 

Mr Abadee, if you look at the facts of this case,

there is a particular that there should be barricades
erected.

MR ABADEE: 

Yes, Your Honour.

C2Tl7/l/SH	24	17/2/88
Moustakas(2)

BRENNAN J:  The purpose, according to the particulars, of

course, is to keep the busses out of lane 1. But,

if barricades were erected for whatever purpose, then, upon the approach taken by the majority in the Court of Appeal, they might well have prevented

the plaintiff from moving from lane 1 to lane 2.

In other words, the disparity between the particulars

and the footing on which the Court of Appeal was

attracted was the function that the barricades may

have performed and barricades, after all, have two

sides to them and what would stop one from one side

might stop the other from the other.

MR ABADEE:  Your Honour, I can understand what Your Honour

Justice.Brennan said. It is to keep people in,

to keep others out, in one sense or to prevent those

who are in from getting out and those who are out from

getting from out to in.

BRENNAN J: Yes.

MR ABADEE:  However, in relation to the particular role of

the barricade, if I might respectfully submit this
to the Court, the answer is provided by

Mr Justice McHugh. We are looking at a case where

the plaintiff says or now seeks to say, "Barricades

should have been provided to keep me from getting out",

with no discussion as to the type or nature of those

barricades, to which we would submit that what

Mr Justice McHugh quite properly says is appropriate

and apt, namely, that had that issue been one tendered

for consideration as an issue of fact, there would have

been a number of other considerations arising which the

appellant would have addressed its attention to.

DAWSON J: Well, that is the short answer, is it not? If the

particular is equivocal, you must look to the case which was put and the case that was put is not the

case that is now sought to be put - - -

MR ABADEE:  I accept what - - -

DAWSON J:  - - - and that is demonstrated by the fact the case

had to be sent back to trial.

MR ABADEE:	Yes, Your Honour.
DAWSON J:	Now, really, that is your case.

MR ABADEE:  Yes, Your Honour. I am seeking to answer

Justice Brennan's question.

DAWSON J: Well, I am sorry. Perhaps I was too.

MR ABADEE:  But, Your Honour, I thought I had answered actually

both Your Honour's comment and Justice Brennan's

question with the same observation. Well, Your Honours,

unless, of course -

C2Tl7/2/SH	25	11/7/88
Moustakas(2)

GAUDRON J:	Does that not state, Mr Abadee, that unless the case was answered, then it must be assumed to be
a fresh point? Is not there some logical fallacy
in it?
MR ABADEE:	Your Honours, by applying the SUTTOR test the

"no possibility of evidence to meet it had it been

raised" there is really no logical fallacy at all

because once one exposes the fresh issue, the

question is, "Could evidence have been brought

which might have defeated it?" and we would submit

that the logical fallacy is really - - -

GAUDRON J:  It presupposes it is a new point. It

does not answer the issue. The fact that evidence

may have been led to meet the issue does not answer

the question whether or not it is a fresh point.

MR ABADEE:  Your Honour Justice Gaudron, we would answer

it this way: issue A was tendered and answered

in favour of the the appellant; issue B was not

tendered nor was any evidence directed to it,

therefore, it was a new point.

GAUDRON J:  Yes, you would not concede that you have to go

the further step and say, "It couldn't reasonably

have been viewed as an open point in the circumstances."

MR ABADEE:  No, Your Honour, I do not have to go that far,

in our respectful submission, and, indeed, as I

think Lord Radcliffe, we would submit, in the ESSO

case, rather, in our respectful submission, seems

to answer the proposition.

Your Honours, may I, for more abundant

precaution, furnish or deal with the remaining

and extant parts of the submission that we would

seek to put before this Court. Your Honours, I

have really now come to perhaps page 4. We would

submit, in the same way as this issue of fact was

not tendered, equally so in COULTON's case. The point that was sought to be raised therein as a	new point was, indeed, a new issue of fact point,
in our respectful submission~and the Court strongly
was of the view that that could not be raised as
an issue.
So I draw the distinction and I have sought to do it and I do not seek to recanvass it; the
distinction between the cause of action and the
issue tendered in support of the cause of action
and that is the issue, in our respectful submission,
that we have fought. Your Honours, at pages 4
and 5 of the outline of submission, I have endeavoured
to elect the relevant authorities that are relevant
to the public interest question which necessarily

C2Tl8/l/ND	26	17/2/88
Moustakas(2)

arises in cases such as this. This case, 1n our

respectful submission, is even stronger than

COULTON's case where it was said, and the subject

of a candid confession, that the new point was
overlooked and that was, indeed, the basis of the

application to the Court of Appeal to allow that

new point to be argued.

There is absolutely nothing to suggest, 1n

this case, that the new point was overlooked and

for one very simple reason: it was never an

alternative case that the plaintiff sought to rely

upon. His case, from beginning to end, was, "I

was in lane 1, that's where I was injured."

GAUDRON J:  Could I stop you there, Mr Abadee? Are the facts

not these, really: the plaintiff says that he

was in lane 1 at all times; the fact is, as found,

that the bus was in lane 2, at all times. On those

facts, are there not two immediately apparent

possibilities? Either the plaintiff was not hit

by a bus, a matter which was not in issue, or,

secondly, the plaintiff was in lane 2. Now, did not those facts automatically emerge as the only

possibilities, one of which was negatived by the

evidence that he was hit by a bus, once it became

established that the bus was in lane 2?

(Continued on page 28)

C2Tl8/2/ND	27	17/2/88
Moustakas(2)

MR ABADEE ~- That is true. The third possibility

before it was so established was that the bus

was in lane 1. However, once it be established that

the accident occurred in lane 2, then it must

necessarily be assumed that the plaintiff was

erroneous in his belief that he was in lane 1.

GAUDRON J: Yes.

MR ABADEE:  And it must necessarily be established that the

bus hit him in lane 2 and not in lane 1 where he

believed he was. But having then said that - - -

GAUDRON J: At that stage does not an issue automatically

present itself, whether it is raised by the
plaintiff or anyone else, does the evidence establish

a cause of action in relation to that only

remaining factual situation?

MR ABADEE: Does a cause - if I may invert it - does a

cause of action arise from a rejection of the

plaintiff's claim or the case that he was in lane 1

which was the case I fought and an acceptance of

the case contrary to his assertion that he was

in lane 2, irrespective of knowing how he got into

lane 2, irrespective of knowing what could or

could not have been done to prevent him from

getting into lane 2. We would submit not and it

was never an issue that we had to confront in any

event.

BRENNAN J:	Can I press you a· little harder on this, Mr Abadee? The fact is he wandered from lane 1 into lane 2
and was hit by a bus?
MR ABADEE:	Yes, Your Honour.
BRENNAN J:	Now, the question is whether on that fact an

inference of negligence is to be drawn? It is not

to be drawn against the bus driver.	The question
is is it to be drawn against his employer? There
are two possibilities.	One is that the employer's

negligence contributed to his wandering into

lane 2, the other is that it did not? The

allegation is that there should have been barricades

there? With that allegation on the record,is there a case raised that there was negligence

which prevented him from moving into lane 2?

MR ABADEE:	The allegation, Your Honour, is that there should have been barricades there to protect me from
being hit in lane 1 or wandering into lane 2 -
either. But I absolutely call no evidence to
show that I was ever in lane 2.  I call no
evidence to show as to what type of barricades could reasonably have been provided.

C2Tl9/l/SR	28	17/2/88
Moustakas(2)

BRENNAN J:	No, but the bus driver did?
:MR ABADEE:	I am sorry?
BRENNAN J:	The bus driver did and at the end of the day

I can say to the judge, "Well, if you find that I

am lane 2, but I say there should have been

barricades there, your conclusion should be in

favour of me"?

:MR ABADEE:  Your Honour, that is the matter which obviously

caused considerable concern as to whether that

could be something that could be said as a matter

of general knowledge. So that from those bald

facts, standing alone, it could be said as a matter

of general knowledge a prima facie case of

negligence arises. We would submit, Your Honour,

that from those bald facts standing alone, when

you already having evidence in of the presence of

witches hats and other evidence which is of the

type adverted to by Mr Justice McHugh, that you

cannot just say in a situation such as this that

the mere wandering into lane 2 in the circumstance

which I postulated presents a prima facie case

of negligence at all, in our submission.

BRENNAN J: That is a rather different proposition from the

one you have been advancing, is not it?

:MR ABADEE:	That is so, that would come - - -
BRENNAN J:	The one that you have been advancing is, well if

the inference might be drawn from those facts

at least we should have been put on notice so that

we could have rebutted it?

:MR ABADEE: That is my primary proposition, Your Honour,

that I fought a case at the trial and the plaintiff

burnt his bridges at the trial and I use the

colloquial expression, but that was the case

he put, that was the case he wanted to put, and

that is the case I fought and he should not be

given a second chance to fight it again. Because

really what the Court of Appeal has done is to

give him a second chance to enable not merely the

first case to be relitigated but also the

alternative case.

BRENNAN J:  Does it not come down to the question of whether,

if you are aware as he is aware of that possibility

of the finding of fact, you are on notice on that

account sufficient to require you_ to deal with

it in whatever manner you see fit?

C2T19/2/SR	29	17/2/88
Moustakas(2)

MR ABADEE:  Your Honour, we would submit that it is not

incumbent upon a defendant at a trial to set out to

negative, by way of evidence or otherwise, an issue

that has never been tendered to be determined. We

would submit that that appears in one of the judgments

in ESSO's case and we would adopt that view, that

there is no sort of negative onus upon the part of

defendant at all to negative an issue which has never

been put up at all to be considered, and that is in

truth, we would submit, the situation that arose here

and we should not have to do it in a negative sense.

It was never put to us, the case was never conducted

on those lines and we should not have to assume that merely

because there are some general particulars that we
should negative a situation of adjusting case basis,

that the plaintiff's version of the events as to what

happened and where the negligence arose in relation

to its happening is rejected. We say that that is
the purpose of the SUTTOR test, in our respectful
submission.

Your Honours, in one sense - if I may go to paragraph 13 on page 4 of the outline, there is

really little gloss I can put upon that. We would

submit that that paragraph puts the proposition in

accordance with the authorities and in accordance

with established practices that a plaintiff is bound

by the way he conducts his case at the trial, and

that is a very good public policy reason. If he

adopts tactics which rebound on him, then so be it.

Indeed, if I may say - I will not add anything further

to that proposition.

Paragraph 14, in our respectful submission,

collects the relevant authorities that touch upon

what we would say are the relevant public interest

and public policy reasons as to why in fact the

plaintiff should be not entitled to a second chance

to relitigate his case, and we have given an outline

of the submissions in support of that proposition.

Your Honours, we would submit that this case raised

a real dilemma for the Court of Appeal because it

was recognized, even by the majority, and particularly

by the majority, that there were difficulties about

it entering a judgment on the new point and that there

would have to be a new trial and there are, as

in the words of Mr Justice McHugh in EGGIN's case,

evils associated with a new trial, and especially a

new trial some eleven and a half years after the event.

We would submit to Your Honours therefore

that the cases that are referred to in

paragraph 14, and in particular if I might just put

this to Your Honours, KETTERMA.N's case, a very recent

decision of the House of Lords, is a case which perhaps

does put the arguments against a new trial and against

C2T20/l/HS	30	17/2/88
Moustakas(2)

this sort of point being raised quite forcefully

course of the address counsel for the defendant sought leave to amend his statement of defence to

in terms of public interest and public policy. the

raise a limitation defence and the House of Lords

said that that ought not to be done and indicated the public policy reasons for not allowing that to occur.

We would say that if an amendment of that type

to raise an issue at the heel of the hunt which had

never been raised at all ought not to be permitted

at a trial, there is a somewhat analogous

situation here, that an amendment raising a new issue

of fact to be determined ought not to be permitted to

be raised at the threshold of an appeal.

(Continued on page 32)

C2T20/2/HS	31	17/2/88
Moustakas(2)

MR ABADEE (continuing):  And Lord Griffiths perhaps puts

in KETTEMAN's case, (1987) 1 AC 189

at pages 219 and 220, what we submit are public policy

and public interest reasons, not only relevant

to amendments at a trial but a fortiori in relation

to an amendment which seeks to raise a new issue

to be determined at a Court of Appeal level and

which the Court of Appeal it says, "cannot itself

determine and there must be a new trial of it

and the old case." Your Honour, we would adopt

the reasons of Lord Griffiths to the extent that

they are relevant in the context of the circumstances

of this matter. Your Honours, in the AIS case,

59 ALJR 492, whilst there was some, perhaps, belief

that the plaintiff might have an argument on the

issue of whether there should have been a finding

of contributing negligence, this Court was not
prepared to send the matter back for a new trial
some 16 years after the accident occurred. In

this case we are dealing with a situation of

11~ years.

Our submission in paragraph 15 is really alternative to our primary submission that it cannot

be said as a matter of common knowledge in any

event by judges of any court of appeal or indeed,

judges generally, that by way of common experience

or general knowledge it is a known fact that barriers

of an unspecified nature or kind, of which there was no evidence, could have been put in place in the circumstances having regard to the - I suppose,

amongst other things, difficulty, inconvenience

or conflicting responsibilities of the type postulated

in SHIRT's case - iust no evidence. And we would

submit that where the evidence is incomplete, as

it must be here, where the facts in relation to

the matter are not admitted or beyond controversy,
that one cannot say, as a matter of common knowledge,

that it would have been reasonable and practicable

to have indeed, provided barriers. There is absolutely

no evidence as to type and nature.	We have already
mentioned Mr Justice McHugh's views on that particular

point. He made an assumption for the purpose of

determining whether the SUTTOR test applied that

there was merit in the point. He did not make

a finding that there was merit in the point. He

just made an assumption that there might be some

merit but then said, "Well, of course, the merit

is not completely clear either having regard to the

other matters that I mention in my judgment including

the placement of the witches hats, the problems
of perhaps putting up barricades, getting permission

of other statutory authorities and matters of like

nature". And indeed, they are mentioned also in

the judgment of Mr Justice Yeldham who said that

in his view,on the evidence before him, that there

was no negligence on the part of the appellant at all.

C2T21/l/MG	32	17/2/88
Moustakas(2)

Your Honours, so that 15 is really an alternative

to the other submissions. We would submit to this

Court that no judge can say on this evidenc~ and

there was no direct evidence as to the type of

barricades, that the case had merit and that it

was reasonable or practical in a prima facie sense

to errect barricades of any type which would have

avoided injury to the plaintiff.	They are our
submissions, if the Court pleases.

MASON CJ:  Yes, thank you, Mr Abadee. Mr Cole.

MR COLE:	Your Honours, it is important, in our submission,
to consider the nature of the claim in negligence
and also the conduct of the trial. The plaintiff
was suing two defendants, the Public Transport
Authority and the employer.  He was able to lead
evidence only as to what he believed the facts
were and his belief undoubtedly was that he was
in lane 1. The case that he sougpt to make against the Public Transport Authority was that the bus
had come into lane 1 and injured him and he accordingly
gave his evidence to that effect.

(Continued on page 34)

C2T21/2/MG	33	17/2/88
Moustakas(2)

MR COLE (continuing): Undoubtedly, in the conduct of his

case, that is the substantive evidence that he

gave, although there is nothing in the appeal

books which would indicate how, in fact, he put

the case whether it was put in that way solely

or put in some other way as -well. So, at the

conclusion of the plaintiff's evidence, the only

evidence before the Court was that he was in lane 1.

He was struck and, therefore, one might think the bus came into lane 1 to strike him but then when the bus driver gave evidence, a different factual

circumstance emerged, namely, that the bus had

always been in lane 2 and, therefore, as undoubtedly he was injured, the occurrence must have occurred in

lane 2 if you accepted that alternative finding of

fact.

Now, it is at that point of time that the third

defendant had to make a decision. He had to decide,

when there were those two alternative findings of

fact available, whether to call evidence or not and

either he could elect not to do so which he did or,

alternatively, he may have, perhaps, overlooked an

alternative case which may have been available were

there to be a finding of fact that the accident occurred

in lane 2. That is not to be expected with an experienced counsel such as Mr Abadee. So, the situation really
is that there was an election by the third defendant,

knowing that there were two competing findings of fact

available, and knowing that in relation to each

alternative finding of fact a finding of negligence

against the third defendant could be made, not to call

any evidence.

DAWSON J: Well, that really covers over the problem, does it

not? You say alternative findings of fact; really

what you must ask was at that point the plaintiff

putt:i.ri~ his case on an alternative basis.

MR COLE: Well, the distinction we would seek to draw, Your Honour,

is a distinction between the evidence which he calls

himself and the way in which the case on the particulars

then given may have been determined by the trial judge.

Now, what has happened is that the particulars set out on page - - -

DAWSON J:  But the trial judge does not determine a case which

is not madP..

MR COLE: True, Your Honour, but.what has happened - - -

DAWSON J: If I may follow through to save interrupting again,

perhaps, if you are right, of course, then the Court

of Appeal was wrong in sending the matter back.

C2T22/l/SH	34	17/2/88
Moustakas(2)

MR COLE: Well, with respect, perhaps not because of

contributory negligence, but otherwise, yes.

But, what has happened, Your Honour, one would

suspect, is that the third defendant has sought

to interpret particular (iii) in a singular way

but there is nothing before this Court or any other

court which has dealt with the matter which indicates

that that ought to be interpreted in that singular

way and, indeed, I had wished to place evidence before

Your Honours that that was not the case on behalf of the

plaintiff but I am restricted from doing that.

So, the particular is capable of two alternative

indications of liability. The third defendant chose

apparently to treat it as relating only to (i),

namely, that the particular only indicated a prevention

of vehicles travelling into lane 1, rather than a

prevention of the plaintiff from departing from

lane 1.

BRENNAN J:  Mr Cole, are you not constrained to accept that that

was not only accepted by, not only the interpretation placed

on it by the defendant but the case made by the plaintiff?

MR COLE:	It was the evidence called by the plaintiff - - -
BRENNAN J:	But are you not constrained ..... that it was

the case.

MR COLE:  - but not the case - - -

BRENNAN J:If it was not the case made:by the plaintiff,

then the whole of the debate in the Court of Appeal was

misconceived.

MR COLE:	Yes. With respect, I agree with that,Your Honour,
and in the light of this morning's events, that is
obviously so.

(Continued on page 36)

C2T22/2/SH	35	17/2/88
Moustakas(2)

MR COLE (continuing):  But the situation was that there was

available two alternative findings of fact, on

either one of which negligence could have been

established and, in those circumstances, we would

submit that the passage that Your Honour

the Chief Justice referred to in LEOTTA ought to

apply and can we just go to that at page 668:

If in the cause of action upon which the

plaintiff sued there had emerged at the

conclusion of the evidence facts which, if

accepted, established that cause of action,

then it was the duty of the trial judge to leave the issue of negligence to the jury.

MASON CJ:  But they are cases, are they not, in which the

plaintiff presented his case in a way that made

clear the allegations that he was pursuing?

MR COLE:	Your Honour, they are cases in which - to bring
it back to this case - there was an allegation
of negligence, which there was here, and there
was an allegation that there should have been
barriers, which there was here.  What has happened
is that the third defendant, certainly, and I may
be constrained to say that the courts have accepted,
that the plaintiff was also saying that the
interpretation to be given to the third particular
relates only to preventing entry from lane 2 to
lane 1 by vehicles. But where you have a ~laim
in negligence, where you have a particular given
that there should have been barriers, where the
plaintiff has addressed, in evidence, the fact
that there were not any barriers, and he did not go and just say, "There weren't any barriers to keep me in, there weren't any barriers to keep
the vehicles out.", he said, in evidence, "There
weren't any barriers." and that was addressed in
evidence.  Where you have that, we would submit
that it is not a new case simply to say, "If there
are two alternative findings of fact available
negligence in each, that is not a new case at all. and if that particular would cover a ground of It is not a new point."

The issue which was tendered was, "Should

there have been barriers?" not, "Should there have

been barriers to keep vehicles out?" or "Should
there have been barriers to keep people in?" but

"Should there have been barriers?" and that is

a sufficient particular of the allegation which

the plaintiff was making. To go and characterize

the purpose for which the barrier is there, we
would submit, is an unnecessary exercise for the

purpose of particulars.

C2T23/l/ND	36	17/1/88
Moustakas(2)

WILSON J: That might well be so, Mr Cole, if there was no

lack of clarity about the plaintiff's description

of how the accident occurred. You see, LEOTTA,

there was no problem about the fact of the accident,

that the deceased fell from the train, but surely

it is no good just talking about the particular

as if the fact that it could be read two ways means

that both are open if the plaintiff's description

of the accident does not provide for that.

MR COLE:	But, Your Honour, the plaintiff was in the situation
where he could only give evidence himself of his belief as to what happened but the mere fact of rejection of his evidence as to what happened does not necessarily mean that there is an absence of
negligence.
WILSON J:	But he did not-!wel~ on the position you are

constrained to accept - he did not put his case

in the alternative.

MR COLE:	He did not so far as evidence is concerned and I am constrained to say he did not so far as
submissions are concerned.  Be that as it may,
LEOTTA, we would submit, is a case which lays down
a principle that if there does emerge negligence
from the facts as determined by a court, then pleadings ought to be allowed to be amended and
a  plaintiff should not be deprived of a remedy
simply because the particulars have not, with
precision, alleged the ground of negligence which
emerges or which is found.

Particularly is that so, we would submit,

where not only is the allegation made one of negligence but, more particularly, is one of absence of barriers. It is as precise as that.

To say that absence of barriers raises a fairly

precise issue - I withdraw that.

(Continued on page 38)

C2T23/2/ND	37	17/1/88
Moustakas(2)

MR COLE (continuing): It is not a major step to say that

where an absence of barriers is determined or

raised as an issue that the purpose for which that

barrier was to be there if a different purpose would

give rise to a new head of negligence - a different

head of negligence to that otherwise pleaded, is
not a major step and a step,which we would submit,

a court ought to make and it is a step which

was contemplated, we would suggest, by a decision

such as LEOTTA.

MASON CJ: But you do agree, do not you, that LEOTTA and

those cases are cases in which the plaintiff is

presented a non-particularized case of negligence?

MR COLE: It was particularized - - -

MASON CJ:  But non-particularized in the relevant respect?

In other words, he is presenting the case of

negligence which is ultimately found in his

favour, but it does not happen to fall within his

particulars?

MR COLE:	Only in so far as, in LEOTTA, the plaintiff was thrown out of the train, but that is no different,
with respect, to this case.
MASON CJ:	Yes, but it drives you into a position where you

have got to show that you were presenting a

relevant case of negligence?

MR COLE:  Yes, and the relevant case of negligence was thac
there were no barriers.

MASON CJ: Yes, I follow that that is how you do it, but - - -

BRENNAN J: If that be right, if your argument be right, why

are you not entitled to judgment?

MR COLE:	Your Honour, we would submit we are, and indeed,
that was the cross appeal which was sought to be
argued.

BRENNAN J: It seems to me that there are only two possibilities:

one is that you are entitled to judgment; the

other is that the appeal must be allowed, because

either the case was made at first instance or it

was not? If the case was made the inference to

be drawn from the evidence is negligence, you should

succeed. If the case was made and it should not

be drawn from the evidence, then you should fail?

MR COLE:	We would submit, that the appropriate order should be that there be a verdict for the plaintiff, the
respondent in this case, but that the matter go
back to a single judge for determination of the

C2T24/l/SR	38	17/2/88
Moustakas(2)

issues of contributory negligence which has not

been addressed by any court and quantum.

MASON CJ:  Mr Cole, I think we are labouring under a disadvantage

in that we do not have your outline of submissions?

11R COLE:	I regret that, Your Honour.
MASON CJ:	Thank you.
MR COLE:	Your Honour, obviously the first issue is one which no longer
can be raised.  But the principal matter that we
would wish to put is that because of the course of the trial once the first defendant gave evidence
and there emerged an alternative possible
finding of fact and there was at that point of time a particular which said there were inadequate
barriers, that there was then an available finding
of negligence on that particular alone which
might have been made in the event of the trial
judge finding that the accident occurred in lane 2
as he did. And that as a consequence of that it
was for the third defendant to decide the course
which it would adopt in relation to calling
evidence and it elected not to do so. And that it
should not now be given the opportunity to
reconsider that failure to call evidence.
We would rely, Your Honour, on the proposition in LEOTTA at page 668, in particular the passage
in the joint judgement in the second column where Justices Stephen, Mason and Jacbos said:

Part 20 ..... provides that all necessary

amendments shall be made for the purpose

of determing the real questions raised

by or otherwise depending on the

proceedings. Now, and for many years past,

a plaintiff does not fail by being

refused leave to amend or through failure

formally to apply for amendment, where

the evidence has disclosed a case in the

cause of action fit to be determined by

the tribunal of fact. Particularly is
this so when the action finally determines
the rights of the parties in the cause of

action.

(Continued on page 40)

C2T24/2/SR	39	17/2/88
Moustakas(2)

MR COLE (continuing):  And we would stress, Your Honours,

that once the first defendant gave evidence
then the nature of this trial changed and no

longer could the third defendant simply say

that particular No (iii), which alleges absence

of barriers, relates only to the prevention

of vehicles coming from lane 2 to lane 1.

GAUDRON J:	Mr Cole, could I interrupt you to ask this: is the case that no particulars were supplied
to the third defendant other than those which appear in the statement of claim?
MR COLE:	I understand that 1s so.
GAUDRON J:	The particulars to which the sketch is attached,

and which became exhibit A, appear to have

been supplied only to the first defendant. It

appears that the second defendant - well, there

is no evidence that there were any particulars

sought by or provided to the third defendant

in elaboration of the matters contained in the

statement of claim.

MR COLE:	Yes.
I will just ask if that is the situation - I am told that is the situation.

GAUDRON J: And it follows from that that the question, does

it, that the case - it was only upon the evidence

given by the plaintiff that the third defendant

was in any position to assume that the case
was one of having been struck in the right-hand

lane.

MR COLE:	Yes.
GAUDRON J:	And it was only then at that point of time

that the third defendant, I suppose, was in

a position to interpret the particular about

barricades in the confined manner which has

been stated?

MR COLE:	Yes, that would be so, with respect.
GAUDRON J:	Yes, thank you.
MR COLE:	And I would, with respect, adopt that approach
that Your Honour has just indicated but we would
submit that the question of-that is wrong to seek to interpret the particular in a restricted way simply because the plaintiff called evidence of a particular factual situation. In other
words, there is no reason, contrary to the view
of Mr Justice McHugh, as to why one should read
down a particular to restrict it to the evidence,
in fact, called by the plaintiff. Particularly,

C2T25/l/AC	40	17/2/88
Moustakas(2)

1s that so where the particular is preceded

by the more general particular No (i), a:

Failure to devise, institute and maintain

a safe system of work so as to avoid injury

to the plaintiff.

If you read (i) and (iii) together, one has

a situation of an allegation of an unsafe place

area of work. Unsafe because there were no

barriers and the gloss which is sought to be

on that by the third defendant is to say, "and

unsafe because those barriers would not prevent

vehicles coming from lane 2 to lane 1 11 • We

would submit that one should not read down the

particulars in that way, particularly, once

evidence has been called by the first defendant

which indicates a possible alternative finding

of fact. And once the first defendant gives

evidence, of necessity, there arises the possibility

of a finding of fact that the accident occurred

in lane 2 and that accordingly the third defendant

was negligent in not restraining in some fashion,

or indicating to the plaintiff, so as to prevent

him from straying into lane 2 for that accident.

Now, that is a circumstance which, on the

evidence given by the plaintiff and the first
defendant, the third defendant must anticipate,

at that point of time, the alternative legal

submissions and decide whether to deal with

them or not - alternative legal submissions

of negligence.

(Continued on page 42)

C2T25/2/AC	41	17/2/88
Moustakas(2)

MR COLE (continuing):  We would submit that what really happened

was that the third defendant chose to interpret

the particular in a restricted way, no doubt because

he was having such a favourable run before

His Honour. But, Your Honour, we would rely heavily,

if we may, on that second column of page 668 of

the decision in LEOTTA and also the passage which

Your Honour the Chief Justice referred to this

morning in DARE V PULHAM which is much to the same

effect. And we would submit it is not a new point

or a new case to say that absence of barriers for

one purpose rather than the other raises a new

issue in accordance with the various authorities.

The absence of barriers, Your Honour, was dealt

with by the plaintiff in the evidence at

page 12, in-chief, about line 18:

When you were lying on the ground where were

you compared to where you had been standing?

A. From where I was half a foot inside the lane I went about two or three metres inside.

It was dealt with by the driver at page 44, line 20.

Mr Lidden asked the driver:

Can you remember whether there were any barriers

along the edge of the hole at all? A. I can't

remember any barriers, there was barriers.

Q. What sort? A. I can't remember.

Q. They could have been fences; is that

what you are saying? A. It could have been

wooden ones or the witches hats.

Q. You have no idea? A. No idea, sorry.

We would submit that a court would be entitled

to take judicial notice of the fact that barriers,

whether they be of the crowd restraining type or

whether they be of the woven orange iridescent	type are commonly erected around works of this
nature. The absence of such barriers was alleged
as a head of negligence and that is sufficient
to_give rise to a situation where no new point
arises.

Mr Justice Priestley at page 71, line 14,

says:

But to my mind, in light of the submission

made to him concerning the employer's duty

to have a barrier between lanes 1 and 2 rather

than markers, once he made the findings of

fact which he did, another aspect of the case

equally relevant to the Board's liability

then emerged.

C2T26/l/MG	42	17/2/88
Moustakas(2)

That is an encapsulation, with respect, of the

point I was trying to put before, that the course

of the trial changed immediately one defendant, the first defendant said, "The accident did not

occur in lane l". The plaintiff could not say

that the accident occurred in lane 1 or perhaps

it occurred in lane 2, he could only give his version

of the facts.	His version was that it was in
lane 1.	But once a second version was given so

that there were two alternative factual situations,
then immediately and of necessity, a cause of action

in negligence arising from absence of barriers

was apparent.

(Continued on page 44)

C2T26/2/MG	43	17/2/88
Moustakas(2)

MR COLE (continuing):  Your Honour~ at page 78,

Mr Justice Priestley said, at about line 14:

the Board does not appear to have been faced
directly at the trial with a claim that it

should have taken care to guard the plaintiff

from straying into lane 2 as distinct from

taking care to keep traffic from getting into lane 1. Although the plaintiff asserted that the latter duty required the Board to have

a barrier between the lanes -

and it is difficult to know the basis on which

His Honour could find that latter duty because

there was no evidence that that was so unless it

comes from the last page of Mr Justice Yeldham's

judgment.-

the Board was content to rely on two defences

to that issue, one that the accident took

place in lane 2 and the other that its method

of warning traffic of the presence of its
workmen was sufficient. It succeeded in both
of these defences. Had it been award of the

further contention that it should have taken

precautions to keep its employees safely

within lane 1 it is conceivable that it may

have conducted its case differently and more

elaborately in regard to the barrier issue.

We would submit that if it was not aware of that then that is because of its interpretation of the

particulars at a time when the two available

alternative factual findings were open. And one

should not look at this as looking at the
particulars only at the time of the plaintiff's
case but must look at them at the time when the
evidence before the court was that of both the

plaintiff and the first defendant.

We would submit, Your Honours, that the

situation is quite different to the type of SUTTOR

or MALONEY case. We would submit that where SUTTOR

refers to the point, at page 438 in 81 CLR,

Their Honours said:

Where a point is not taken in the court below

and evidence could have been given there which

by any possibility could have prevented the

point from succeeding, it cannot be taken

afterwards.

The question arises as to what is meant by "the

point". We would submit that if, in an action

of negligence, the point is taken that there should

C2T27/l/ND	44	17/1/88
Moustakas(2)

have been barriers, for whatever purpose, to keep

people in or to keep vehicles out, that is a

sufficient taking of "the point" so that no question

of having to apply SUTTOR's case arises.

Further, we would submit that the majority in the Court of Appeal - I withdraw that. We would

obviously adopt the decision of Mr Justice Priestley

and Mr Justice Hope. In relation to the judgment

of Mr Justice McHugh, we would submit that

His Honour was in error at page 83 in that

His Honour failed to distinguish, in our respectful

submission, between a factual assertion in the

form of "the accident occurred in lane l" advanced

by the plaintiff from the legal assertion that

there was negligence due to the absence of barriers.

(Continued on page 46)

C2T27/2/ND	45	17/1/88
Moustakas(2)

MR COLE (continuing):  The mere fact -the circumstance that a

plaintiff can only lead evidence of a particular fact

does not mean that if alternative facts are found and

the plaintiff is not accepted on his factual issues,

then of necessity the third or another defendant

is not negligent.

MASON CJ:  Mr Cole, you have adopted the approach taken by

Mr Justice Priestley and Mr Justice Hope in the Court

of Appeal. What does that precisely entail,

because it proceeds on the footing that a point is not

pleaded or particularised at the trial, but that none the less there is evidence from which perhaps a prima

facie cause of action could be established. Now, does

it follow from that that whenever it emerges on appeal

that the evidence establishes ''a prima facie cause of

action, not pleaded or particularised~ that it is then

permissible for the Court of Appeal to direct a new

trial?

MR COLE:	No, we would not go as far as that, Your Honour.
MASON CJ:	Well, what are the limits on- - -
MR COLE:	It obviously would have to be pleaded, the question

of whether it gets down to~ it perhaps get down to

the degree of particularization, but what

Mr Justice Priestley was doing, we would submit,

although he did not do so explicitly, was to adopt

the concepts which are set forth in LEOTTA, that if

you find that facts do emerge which disclose a

prima facie cause of action in, for instance, negligence

where negligence has been pleaded, then simply because

you have not particularized it in the way in which it

is ultimately found should not bar one from relief.

MASON CJ:	Or actually present it as a basis for relief.
MR COLE:	Yes.  If a plaintiff or a party has encompassed a

particular approach and it may get down to a question of the extent to which one details that approach, but

if in so doing a factual situation emerges which is

slightly different to that approach but is nevertheless

encompassed within the material which is placed before

the Court, if that gives rise, if that discloses a cause of action, then we would submit that a court

ought not to prevent a plaintiff from succeeding.

MASON CJ:  Notwithstanding, for example, that the new trial

might take three months?

MR COLE:  Well, that is a question perhaps of discretion,

rather than weighing up competing factors as to

whether or not there should be a new tria~ taking

into account a great variety of factors, but a major

factor would be that a court was deciding once and

for all that a plaintiff who on its view of the

C2T28/l/HS	46	17/2/88
Moustakas(2)

material which emerged before it indicated that it

had a right to relief, that that person should not

be given that relief.

MASON CJ:  It is an extraordinary qualification of the SUTTOR V

GUNDOWDA principle, is not it, because that

prescribes a precise rule. This qualification

requires the Court to undertake some discretionary

balancing exercise.

MR COLE:  Yes, in one sense it does, but that should hold no

fear where the Court can say, "Having looked at the

material which has emerged we find that there is prima

facie a cause of action, that a party has a right to

relief."

(Continued on page 48)

C2T28/2/HS	47	17/2/88
Moustakas(2)

MR COLE (continuing):  Now, once that is found, one would

have thought it would be a rare circumstance in which the court would say, notwithstanding that

justice requires that he should not get that relief

for some other reason. So that whilst one may

in theory have to come to balance to m:;et competing equities

or inequities, nevertheless the starting point

is that the court itself has decided on the

material that there is a cause of action. And in

those circumstances it would be, normally speaking

we would suggest, unjust for the plaintiff to

be deprived.

MASON CJ:  But it has not decided that there is a cause

of action because the existence of a cause of

action has not been litigated?

MR COLE: Well, it has decided that on the material before

it there is a prime facie cause of action and

that would be sufficient to start the process of

saying, "Why should,in those circumstances, a

plaintiff be deprived"?

WILSON J:  But that conclusion would often attend the

raising of a point that was not raised in the court below and attract the SUTTOR principle,

would not it? I mean there is obviously implicit

in the raising of a new point the possibility

that there is a cause of action that has not

been litigated but should have been?

MR COLE:	Normally the SUTTOR principle would become
applicable in the case of defendants raising a
new defence as distinct from a new cause of action
arising in the case of a plaintiff.  So that
is a distinction which needs to be borne in mind
and perhaps some - - -

MASON CJ: That is not necessarily so, is it?

MR COLE:  No, it is not necessarily so.

MASON CJ:  I would have thought that it could commonly arise

either way. Of course, in the past it has generally

arisen with a respondent seeking to justify the

judgment in his favour in the court below on a

ground not taken in the point below - a new point

in that sense. And then the question is can he

sustain the judgment in the court below on the

ground not litigated and,,of course,he can as long

as there is no possibility that evidence might

have put a different complexion upon the issue?

MR COLE:	But where it is a case of a plaintiff seeking a
relief, particularly one might think in cases of
personal injuries, and where a court can say the

C2T29/l/SR	48	17/2/88
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material before us discloses a right to relief

for personal injuries, then it ;s ~ot really an	application of a SUTTOR-type principle at all,
it is really saying,"Whilst there may not have been
a detailed litigation of a precise point, on the
face of it, on the balance of material which is before us'and the court may reach this conclusion
where it was satisfied it had a weight of material
before it,"there is a clear cause of action unless it is rebutted in some fashion."

MASON CJ:  But the point remains as made by Justice Wilson,

the very foundation of the SUITOR V GUNDOWDA principle

is that the new point taken would prevail but

for the fact that there is the possibility that

there could be further evidence that would derail

it?

MR COLE:	Yes. Well, it is a question of how one categorizes
this sort of case; if whether one takes into the
SUTTOR-type of case or whether one leans rather
towards the LEOTTA-type of situation. We would submit - - -

BRENNAN J: Is not the dichotomy absolute? In other words,

if a trial judge has disposed of all issues before

him and the trial is without blemish, the Appeal

C.Ourt has no jurisdiction to interfere?

MR COLE:  Yes.

BRENNAN J: If he has failed to dispose of all the issues

before him then the Appeal Court must either dispose

of them itself or remit the matter to him to

dispose of them?

(Continued on page 50)

C2T29/2/SR	49	17/2/88
Moustakas(2)

MR COLE:  Yes, indeed.

BRENNAN J: In this case, either the issue that you seek to

rely on was alive before the trial judge or it

was not. If it was not, then there is no blemish

in the trial. If it was, then it would be open,

I would have thought, to the appeal court to

entertain and to allow your cross appeal.

MR COLE:	Yes, Your Honour, and in this instance the issue
necessarily emerged as a result of the alternative evidence given by the first defendant that the
accident happened in lane 2.
DAWSON J:	You find it easier to accept if the trial judge

had thought it emerged but when you read his

judgment he clearly thought it had not and if that

were put to him that he should have dealt with

it he would say, "But it was never argued before 11 b . 1

me. 0 VlOUS y.

MR COLE:	Your Honour, that is the difficulty I am in, of
course, because of this morning's ruling.
His Honour did not deal with it in his judgment
but, with great respect, that does not mean that
the matter was not put to him in the alternative
way. One would expect, this Court would expect,
that where counsel for a plaintiff were faced with
the situation where the evidence he called said, "It
happened in 1, and the negligence was that you didn't
evidence which said, "It happened in Lane l. 11 that stop vehicles coming in. 11 and then there emerged
of course he would say, "If it happened in 2 then
he should have had a barrier to stop me straying into 2. 11 The only question really is whether the
particular which is given is sufficient to allow
it to be said that that point, if you like, was
there or whether, to put the alternative submission,
is to make a new point.

We would submit it is not to make a new point.

The claim was negligence, the claim was that there should have been a barrier and there was not a

barrier and it is not necessary to go to the next

stage and say, "a barrier for one or two alternative purposes.". Mr Yeldham's judgment is, in one sense,

equivocal but Their Honours in the Court of Appeal

held, possibly correctly, that His Honour was

directing his mind to a submission that the

barricade was erected to prevent vehicles from

entering - that is not what he says but it may

be implicit. What he says at page 58 is:

So far as the third defendant, the

employer, is concerned -

C2T3O/l/ND	50	17/1/88
Moustakas(2)

and the major portion of the judgment deals with

the liability of the first defendant -

I am also quite unable to see how it was

negligent. There was, according to the

plaintiff, yellow plastic markers placed

along the side of the area where the work

was being done and there was also a sign on

the southern side of the hole indicating that

roadworks were being performed, but whether

such a notation was there or not, it was

broad daylight, the workmen were there
plainly to be seen and I think it is quite

unreal to suggest, as counsel for the

plaintiff did suggest, that some type of
post or other barricade should have been

erected -

Now, he does not say, "for the purposes of keeping

vehicles out".

MASON CJ:  But it is plain enough that is the context 1n

which he making the finding.	I mean, a post would
not keep the workmen out.

MR COLE:	A post would not keep vehicles out either,
Your Honour.

MASON CJ: It might.

MR COLE:	With respect, all a post would do would give a driver a warning that he had hit something and
was transgressing into a different lane. The
question of fencing or posts could not conceivably
keep out a bus. All it is is a warning system.
MASON CJ:	It is:p6ssible. It is not altogether clear

whether His Honour was considering it merely from

the point of view of warning or whether he was

going further.	He uses the word "protected" and
that may be ambiguous in the context.

MR COLE:  Yes, it is very - - -

GAUDRON J: It certainly does seem, though, that he had

considered that notwithstanding his finding that

the accident had occurred in lane 2, the issue

of negligence as against the third defendant was

still alive.

MR COLE: Still alive and - - -

(Continued on page 52)

C2T3O/2/ND	51	17/1/88
Moustakas(2)

GAUDRON J:  And that would be by reference to some

matter particularized or raised.

MR COLE:	Yes,and the only relevant matter particularized are
(i) and (iii), a safe place of work and the barrier
point.  Now, if one is talking of witches' hats,
of course, they would not keep vehicles out either.
MASON CJ:	Oh no.  The last sentence in the paragraph seems to

suggest that it is a matter of drawing attention
rather than anything else.

MR COLE: Yes, quite. But, as I say, it has been interpreted as referring to a submission only that there should have been barriers to keep vehicles out.

WILSON J: Well, if it is interpreted more broadly, is he not

disposing of the issue that you claim was before him?

MR COLE: Well, if he is, then we would submit that the majority

in the Court of Appeal have indicated that there ought

to be a new trial in relation to that issue.

WILSON J:  But they did not proceed from that starting point?

MR COLE:  No, they did not. One of the grounds of appeal was

that there ought to have been a - I withdraw that.

MASON CJ:  If. he was disposing of the point, then your

cross appeal begins to look very good.

MR COLE:	Yes. Because, Your Honour, on the face of it, on the
evidence before the Court, there was a clear prima
facie case of negligence, as Mr Justice Priestley
clearly indicated.  So that one should not approach
this case by simply looking at it as though tnere was
only the plaintiff's evidence and there are only
those particulars given to the third defendant.

(Continued on page 53)

C2T31/l/SH	52	17/2/88
Moustakas(2)

MR COLE (continuing):  One must consider the case at the

time when the third defendant had to make its decision

about what it was going to do and elected to call

no evidence. The negligence argument based on absence of barrier was open and it was open on

either alternative finding of fact.

Your Honour, so far as the decision in

MALONEY V COMMISSIONER FOR RAILWAYS is concerned,

at 52 ALJR 292, the allegations in that case which

it was said were not particurarized but which were

sought to be raised at a later point of time,

were that the Commissioner should have excluded

children from standing in the vestibule near the

door either by ticket notation or a notice or

that alternatively, he ought to have fitted

automatically closing doors. Now, that sort of

new case which was sought to be made is in quite

a different situation, we would suggest, to this

case where here the only issue is: given that

it was particularized there should have been

barriers, should there have been a particularization

of the purpose for which those barriers were required.

So it is quite a different situation. Equally,

the question of whether you required evidence about

whether or not you could have efficiently run a

railway service if one imposed an obligation to

have closing doors on railway trains is a vastly
different situation to whether you require evidence

about whether you could efficiently run a road-works

operation if you put up two posts and a pole or

a piece of webbing.

(Continued on page 54)

C2T32/l/MG	53	17/2/88
Moustakas(2)

MR COLE (continuing):  So that there are different factual

situations to consider and the Chief Justice

Sir Garfield Barwick, at the top of page 293,

dealing with the evidence point, commencing

at the bottom of 292:

The likelihood of the incapacitating

occurrence, the likely extent of the injuries

which the occurrence may cause, the nature
and the extent of the burden of providing
a safeguard against the occurrence and

the practicability of the specific safeguard

which would do so are all indispensable

considerations in determining what ought

reasonably be done. Of all these elements,

evidence is essential except to the extent

that they or some of them are within the

common knowledge of the ordinary man.

In the circumstance where the barrier is

the suggestion of what should have been done,

we would submit that Mr Justice Priestley was

right in adopting an approach that the common

knowledge of ordinary man is that one can readily

put a barrier, of whatever type, so as to give

a warning to two groups of people: those who

might intrude into the area and those who might

go from it.

BRENNAN J: There might be reasons why you would not put

up a barrier. For example, if the feet are

splayed and traffic is going to run over them,

the barrier could be a source of danger.

MR COLE: Yes. Well, I suppose it depends on the type

of barrier one is talking about, Your Honour.

BRENNAN J:  Does one need to know what sort of barriers

one can talk about?

MR COLE: Well, common knowledge enables one to know that

but there was no evidence about it.

BRENNAN J:  Do posts have splayed feet?

MR COLE:  Yes, of varying size. Some have round with

heavy concrete lumps which support them, others

simply have poles driven into the bitumen with

webbing attached to them. I mean there is a

variety of things which can readily accommodate

almost any circumstance and have for many, many

years.

C2T33/l/AC	54	17/2/88
Moustakas(2)

GAUDRON J: And even had them buttressed on one side.

MR COLE: Buttressed on one side, anchored on one side as

Also, at the foot of page 294,

Mr Justice Jacobs said:

There was no suggestion at the trial

that these steps -

that is, the fitting of automatic doors or the giving

of notices -

should have been taken by the Conn:nissioner

in the exercise of reasonable care. That

the failure to take these steps constituted

evidence of a lack of reasonable care had

not been particularized either in the

statutory notice of intended action or in

any particulars accompanying the declaration.

Now that is quite different to this case where, certainly, the generality of the need for barriers

was particularized. The purpose for which the

barrier was · required was not and His Honour then goes on to

cite, with approval, LEOTTA which we would, again,

adopt.

Now, we would, with respect, adopt the passage

in Mr Justice Priestley's judgment at page 75 at the

foot of the page:

Here, to refuse to entertain the argument would be to send the plaintiff from the court without his being heard on an

argument which the findings of the court

itself have made possible, those findings

being ones on which he is, at least prima

facie, entitled to a remedy.

And we would submit that a. court would be slow to

come to a conclusion that where a party had

particularized the need for barriers, had alleged

negligence where there had been evidence that there

were no barriers, where it was constrained to give

evidence of factual situations relating to lane 1

whereas an alternative finding became open in respect

of lane 2 with an alternative finding of negligence

then available based on the absense of barriers, that

that is a circumstance which a court should take into

account and would be slow to say to a plaintiff that
he ought not to be given the chance to have relief in

circumstances where the court hasfound circumstances

prima facie giving right to such relief. Those are

the submissions, if Your Honours please.

C2T34/l/SH	55	17/2/88
Moustakas(2)

MASON CJ:  Thank you, Mr Cole. Mr Cole, we ought to ask you

this. You are asking for special leave in relation

to the cross appeal?

MR COLE:  Yes, I am Your Honour.

MASON CJ: Yes. What is your attitude to the cross appeal?

MR ABADEE:  I would find it in the circumstances somewhat

difficult to oppose, Your Honours.

MASON CJ: Yes, the Court grants special leave to appeal.

MR ABADEE: Your Honours, we do not agree that the matter

was put to the trial judge in the alternative way.

There was no application to amend the particulars

or the pleadings. Might I take, Your Honours, on

that point to the judgment of this Court in

MALONEY V COMMISSIONER FOR RAILWAYS (NSW), (1978)

52 ALJR 292, and the part of the Chief Justice's

judgment, page - - -

MASON CJ:  When he deals with LEOTTA?

MR ABADEE:  Yes. It is a qualification or a distinguishing

of LEOTTA.

MASON CJ: Yes, I think the members of the Court are familiar with tlIBt

MR ABADEE: If, Your Honours; please. Your Honour, we would

say that my friend's submission ultimately must

lead to the conclusion that he is entitled to

judgment and not to a new trial subject to any

question of contributory negligence which in turn

creates a problem if he does indeed assert that he

is entitled to judgment.

MASON CJ:  Mr Cole acknowledges that, except in so far as he

relies on the approach taken by Mr Justice Priestley?

MR ABADEE:	Yes. We would say that the decision - - -
GAUDRON J:	Why do you then say,"subject to the question of contributory negligence", this remains to be
determined?
MR ABADEE:	Your Honours, because it is extant? All members

of the court agreed that in respect of this point

the issue of contributory negligence on any view

could arise, in our respectful submission?

GAUDRON J: It is not simply, could arise, on the approach which

Mr Cole put,it did arise?

MR ABADEE:	We would rather -
GAUDRON J:	And it did arise.  You called no evidence - well it

was open to arise. You called no evidence, the matter

was determined on the basis of the evidence then available

and why does it now have to be - - -

C2T35/l/SR	56	17/2/88
Moustakas(2)

MR ABADEE:  Well, Your Honours, we cavil, of course, with

Mr Cole's approach. I suppose that is the threshold

point; we just cavil with it.

GAUDRON J: Yes, but you do say, on his approach there must be

a verdict subject to the issue of contributory

negligence.

MR ABADEE:	Yes, he is driven to that conclusion.
GAUDRON J:	I wonder why you do not say, on his approach he

is entitled to a verdict, leaving aside the question

of contributory negligence.

MR ABADEE:  It becomes very difficult to ever order_ to enter

judgment and still leave extant for a new trial a

question of contributory negligence. There is a sort of

an inbuilt conflict.

GAUDRON J:	But why would it be extant?
MR ABADEE:	We would submit to Your Honours - that it really

comes back to my threshold point, that it is a new

issue.

GAUDRON J:  Yes, and if it is not a new issue, it is not

extant.

MR ABADEE:  No. That indeed, perhaps, polarizes the competing

argument. The discretion sugges~ed by Mr Cole in

relation to a possible new trial has problems when

one considers the SUTTOR principle which predicates

that there ought not to be a new trial in situations

such as the present, a decision which reflects the

fundamental of finality of litigation. The

approach cormnended by Mr Cole on the discretionary

factors relevant to ordering a new trial introducE

not merely no certainty, and not merely no finality

of litigation, but introduced no principle at all

and the discretion would lead to the conclusion that

it is an unlimited, open-ended and unqualified

discretion which, we would submit, runs into the

SUTTOR principle, and runs into the fundamental

principle of finality of litigation.

Your Honours, one other matter that I would

seek to deal with in reply, if I might direct

Your Honours to page 1, the statement of claim.

(Continued on page 58)

C2T36/l/VH	57	17/2/88
Moustakas(2)

MR ABADEE (continuing): Paragraph 7, line 30, puts the case

as being one of negligence caused by the defendants,

but not in the alternative - it is by both.

One therefore reads the particulars, we would submit,

in the context. When one looks at particular

number(i) in terms of the particulars of negligence

of the third defendant at page 2,that is not, in our

respectful submission, a particular at all, but rather

a statement of breach of duty, and not a particular

of the breach. When one looks at point number(iii)

we would submit that it is not - there are two
posssible views. First of all, we would submit it is
not equivocal at all and that a proper construction

of it is that it is a failure to provide any or

adequate barriers, for a specific purpose, so as to

mark, depict, or describe that portion of Elizabeth

Street upon which the plaintiff was working. So it

is not a matter of barriers at all to protect the
plaintiff or alternatively to prevent him from

wandering, but rather to depict or mark the portion of

Elizabeth Street upon which he was working.

We would submit, Your Honour, that that is the proper interpretation of that particular or, alternatively,

if it is equivocal, the equivocal nature of the

particular was removed at the trial and clarified

having regard to the way the plaintiff conducted his

case. He clarified the issue and he clarified that

particular so as to remove alternatively any

equivocation, if there was any equivocation there in

the first place.

DAWSON J:  Particulars of negligence are almost always

particulars of breaches of duty. They are an

anomaly in the law, are not they, but what you say is
that, you speak of barriers, that is the breach of

duty, but the real particular is the barriers which

ought to have been provided ought to have been provided

in order to delineate.

MR ABADEE:	Yes.
DAWSON J:	I follow.
MR ABADEE:	They are our submissions in reply, if the Court pleases.

MASON CJ:  Thank you, Mr Abadee. The Court will consider its

decision in this matter and adjourn until 10.15 am

tomorrow.

AT 12.42 PM THE MATTER WAS ADJOURNED SINE DIE

C2T37/l/HS	58	17/2/88
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