Dovuro Pty Ltd v Wilkins [2001] FCA 158

Dovuro Pty Ltd v Wilkins [2001] FCA 158

Leave to withdraw a concession and introduce a new point on appeal is within the Court's discretion and ordinarily ought to be determined by the majority; in this instance, the majority refused leave, dismissing Dovuro's motion. Cropmark is bound by the judgment and is required to indemnify Dovuro for damages awarded to the first respondent, and late amendment to pleadings was not permitted.

Parties
Applicant: Dovuro Pty Limited; First Respondent: Robert John Wilkins, Eileen Joyce Wilkins, Trevor Ian Wilkins, Susan Caroline Wilkins and Lochiel Nominees Pty Limited as trustee for the R & E Wilkins Family Trust, all trading as R & E Wilkins; Second Respondent: Crop Marketing New Zealand Society Limited
Jurisdiction
Australia
Judgment Date
12 March 2001
Procedural Posture
Appeal / Post Appeal Motions; Further Orders After Judgment
Outcome
Appellant's and second respondent's motions dismissed; procedural and costs orders made; proceedings remitted to primary judge.
Legal Topics
Leave to Withdraw Concession, Point Not Argued Below on Appeal, Third Party Procedure, Indemnity, Costs
Practice and Procedure Civil Liability Leave to Withdraw Concession Point Not Argued Below on Appeal Third Party Procedure Indemnity Costs

Case Brief

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Parties

Dovuro Pty Limited

Applicant

Robert John Wilkins, Eileen Joyce Wilkins, Trevor Ian Wilkins, Susan Caroline Wilkins and Lochiel Nominees Pty Limited as trustee for the R & E Wilkins Family Trust, all trading as R & E Wilkins

First Respondent

Crop Marketing New Zealand Society Limited

Second Respondent

Procedural Posture

Appeal / Post Appeal Motions; Further Orders After Judgment

Legal Issues

  1. 1 Whether party may withdraw concession made below and rely on point not argued at trial
  2. 2 How matters of leave arising in appeal are decided
  3. 3 Whether third party is bound by judgment against another party

Ratio Decidendi

Leave to withdraw a concession and introduce a new point on appeal is within the Court's discretion and ordinarily ought to be determined by the majority; in this instance, the majority refused leave, dismissing Dovuro's motion. Cropmark is bound by the judgment and is required to indemnify Dovuro for damages awarded to the first respondent, and late amendment to pleadings was not permitted.

Court Disposition

Appellant's and second respondent's motions dismissed; procedural and costs orders made; proceedings remitted to primary judge.

Orders

  • The notices of motion of the appellant and of the second respondent be dismissed.
  • The costs of and incidental to the hearing on 30 January 2001, including all notices of motion, be costs in the appeal.