Hannover Life Re of Australasia Ltd v Dargan

[2012] NSWCA 185

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeals
3. › Notice of contention
4. › Respondent's entitlement to uphold decision on grounds not argued below
5. › Whether respondent may raise new point of construction on appeal
6. › Whether acceptance of binding authority at trial precludes raising point on appeal where Court of Appeal not bound by own decisions
7. › Uniform Civil Procedure Rules 2005 (NSW), r 51.40(1)
1. Practice and Procedure
2. › Appeals
3. › Notice of contention
4. › Application to strike out
5. › Whether single Judge of Appeal has power to strike out notice of contention
6. › Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)
7. › Supreme Court Act 1970 (NSW), s 46(2)
1. Practice and Procedure
2. › Appeals
3. › New points on appeal
4. › Distinction between appellants and respondents
5. › Whether respondent who accepted binding authority at trial may challenge that authority on appeal

Quick Take

A respondent on appeal is entitled to seek to uphold the decision below on any good legal ground appearing upon the evidence, including a ground not argued at trial, subject to considerations of fairness. Where a respondent accepted at trial that he was bound by a Court of Appeal decision, this does not constitute a fairness consideration precluding reliance on a notice of contention challenging that decision, because the Court of Appeal is not bound by its own earlier decisions. It is doubtful whether a single Judge of Appeal has power to strike out a notice of contention.