Hannover Life Re of Australasia Ltd v Dargan [2012] NSWCA 185

Hannover Life Re of Australasia Ltd v Dargan [2012] NSWCA 185

The notice of motion was dismissed because, even if a single Judge of Appeal had power to strike out a notice of contention, the discretionary basis for doing so was not established. A respondent to an appeal may seek to uphold the decision below on any good legal ground appearing on the evidence, including a point of law or construction not argued below, subject to notice and fairness. The respondent's position at trial was constrained by binding Court of Appeal authority, and no relevant unfairness arose from permitting him to rely on the notice of contention on appeal.

Jurisdiction
Australia
Judgment Date
20 June 2012
Procedural Posture
Interlocutory Application in Court of Appeal / Notice of Motion by Appellants to Strike Out Respondent's Notice of Contention
Outcome
Notice of motion filed by the appellants on 11 June 2012 dismissed with costs.
Legal Topics
['notice of Contention' 'grounds Not Argued at First Instance' 'power of Single Judge of Appeal' 'summary Dismissal or Striking Out' 'total and Permanent Disablement' 'construction of Insurance Policy']
['civil Procedure' 'appellate Procedure' 'insurance' 'superannuation'] ['notice of Contention' 'grounds Not Argued at First Instance' 'power of Single Judge of Appeal' 'summary Dismissal or Striking Out' 'total and Permanent Disablement' 'construction of Insurance Policy']

Case Brief

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Procedural Posture

Interlocutory Application in Court of Appeal / Notice of Motion by Appellants to Strike Out Respondent's Notice of Contention

Legal Issues

  1. 1 ["Whether the appellants' notice of motion seeking to strike out the respondent's notice of contention should be granted." 'Whether a single Judge of Appeal may strike out a notice of contention.' 'Whether the respondent could rely on a ground of construction of the insurance policy not argued at first instance to uphold the decision below.' 'Whether fairness considerations prevented the respondent from raising the full-time versus part-time work point on appeal.']

Ratio Decidendi

The notice of motion was dismissed because, even if a single Judge of Appeal had power to strike out a notice of contention, the discretionary basis for doing so was not established. A respondent to an appeal may seek to uphold the decision below on any good legal ground appearing on the evidence, including a point of law or construction not argued below, subject to notice and fairness. The respondent's position at trial was constrained by binding Court of Appeal authority, and no relevant unfairness arose from permitting him to rely on the notice of contention on appeal.

Court Disposition

Notice of motion filed by the appellants on 11 June 2012 dismissed with costs.

Orders

  • ['The notice of motion filed by the appellants on 11 June 2012 is dismissed with costs.']