Whether applicant permitted to raise new case or argument on appeal
Respondent was producer and co
promoter of concert scheduled to take place in association with 2020 Australian Grand Prix
Quick Take
1A party that runs a specific causation defence at trial (here, that the respondent independently decided to cancel an event) cannot on appeal advance a diametrically opposed causation defence (that the applicant itself cancelled the event), even where the alternative argument found some support in the pleadings or opening submissions, unless exceptional circumstances are established — the actual conduct of the trial, particularly closing submissions, defines the issues for determination.
2Where a party makes a deliberate forensic decision to tender evidence on a limited basis under s 136 of the Evidence Act 2008, it cannot on appeal contend the trial judge erred in not admitting the evidence absolutely; the trial judge is entitled to rely on the parties' agreement as to the basis of tender.
3Appellate review of a Sellars discount applied to a loss of commercial opportunity is governed by House v King principles; an appellate court will not substitute its own evaluative judgment for that of the trial judge absent identified error in findings or method, even where the appellate court might have reached a different result.
