New South Wales Land and Housing Corporation and Anor v Frances Joy Reilly and Anor [2012] NSWCA 286

New South Wales Land and Housing Corporation and Anor v Frances Joy Reilly and Anor [2012] NSWCA 286

Leave to further amend the amended notice of appeal was refused because the proposed grounds sought to raise matters not in issue at trial between the appellants and the first respondent, including liability, diagnosis, causation and the effect of the mediator's certificate. The appellants had conducted the trial on the basis that liability and diagnosis were admitted, had not sought leave to withdraw those admissions, and permitting the new points would prejudice the first respondent because further evidence could possibly have been called if the issues had been raised below.

Jurisdiction
Australia
Judgment Date
12 September 2012
Procedural Posture
Interlocutory Application / Notice of Motion by Appellants for Leave to File a Further Amended Notice of Appeal
Outcome
Notice of motion dismissed with costs.
Legal Topics
['application for Leave to Further Amend Notice of Appeal' 'raising a New Point on Appeal' 'withdrawal of Admissions in Pleadings' 'prejudice' 'dust Diseases Tribunal Claims Resolution Process' "mediator's Certificate"]
['practice and Procedure' 'pleadings' 'appellate Procedure'] ['application for Leave to Further Amend Notice of Appeal' 'raising a New Point on Appeal' 'withdrawal of Admissions in Pleadings' 'prejudice' 'dust Diseases Tribunal Claims Resolution Process' "mediator's Certificate"]

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Procedural Posture

Interlocutory Application / Notice of Motion by Appellants for Leave to File a Further Amended Notice of Appeal

Legal Issues

  1. 1 ["Whether the appellants should be granted leave to further amend the notice of appeal to challenge the effect or validity of the mediator's certificate and the confinement of issues at trial." 'Whether the appellants could raise on appeal issues not raised at trial, including diagnosis, causation, liability and the validity of the claims resolution process.' 'Whether the first respondent would suffer prejudice if the appellants were permitted to raise the proposed amended grounds.' 'Whether leave would be required to withdraw express admissions in pleadings concerning diagnosis and causation.']

Ratio Decidendi

Leave to further amend the amended notice of appeal was refused because the proposed grounds sought to raise matters not in issue at trial between the appellants and the first respondent, including liability, diagnosis, causation and the effect of the mediator's certificate. The appellants had conducted the trial on the basis that liability and diagnosis were admitted, had not sought leave to withdraw those admissions, and permitting the new points would prejudice the first respondent because further evidence could possibly have been called if the issues had been raised below.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['Notice of motion dismissed with costs.']