Water Board v Moustakas

The High Court of Australia heard an appeal by the Water Board against Moustakas. The dispute concerned whether a new issue had been raised for the first time at the Court of Appeal level, which the appellant argued should not be permitted. The respondent sought leave to file an affidavit from the solicitor who instructed in the original trial to demonstrate that the issue in question had, in fact, been raised at the trial.

The primary legal issue before the High Court was whether to grant the respondent leave to file the affidavit. The appellant contended that the issue of whether a new case was raised at the Court of Appeal had already been determined by that court and was therefore foreclosed. They argued that no attempt had been made to introduce this affidavit material to the Court of Appeal or the High Court during the special leave application, and that the High Court had accepted that a new case was indeed raised for the first time in the Court of Appeal.

The Court considered the submissions of both parties regarding the admissibility of the affidavit. The appellant argued that the matter was foreclosed and that the affidavit contained controversial material not previously presented. The respondent countered that the issue had not been conceded in the application for special leave and that the judgment of the Court of Appeal appeared to proceed on a particular basis regarding the trial.