Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd (No 2)

[2017] ACTCA 33

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Interrogate

Catchwords

1. Appeal
2. › Practice and Procedure
3. › Re-opening of appeal
4. › Seeking to adduce evidence not before the Court on appeal
5. › Whether Metwally discretion permits raising issue not agitated at trial or on appeal
6. › Whether application sufficiently arguable to be referred to full bench
1. Appeal
2. › Practice and Procedure
3. › Anshun estoppel
4. › Whether Anshun estoppel applies to prevent raising issues on appeal that were not raised at trial
5. › Distinction between successive proceedings and appellate proceedings
6. › Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
1. Appeal
2. › Practice and Procedure
3. › Res judicata
4. › Whether res judicata prevents raising on appeal an issue not addressed in grounds of appeal
5. › Relationship between res judicata and Metwally discretion
6. › Supreme Court Act 1933 (ACT), ss 37E, 37J

Quick Take

Anshun estoppel does not bar a party from raising on appeal an issue not raised at trial, because an appeal is a continuation of the original proceedings rather than separate successive proceedings. The doctrine of res judicata similarly does not prevent such an application, as the appeal provisions are an exception to res judicata and applying it would negate the Metwally discretion. The question whether to permit the issue to be raised remains one for the Metwally discretion.