112 Mason CJ and Gaudron J said that the bank's failure to appear was not a reason to treat the defence as withdrawn. After referring to the cases about taking a point for the first time on appeal, including Water Board v Moustakas, they said (at 284):
"In the present case there is no basis upon which it could be suggested that Akhil may have wished to call evidence to show that the breaches by the Bank occurred at a time inside the six-year period of limitation. Nor, by reason that the trial judge would not have been free either to disregard the defence or to treat it as withdrawn from the trial, can it be said that the case sought to be made on appeal is new or different from that which emerged at the trial. Accordingly, neither the decision in Moustakas nor the rule upon which it rests prevented the Bank from relying on its pleaded defence in the Court of Appeal." (emphasis supplied)
113 Brennan J (at 288) said (omitting some citations):
"When the pleadings bring the parties to the issue, the court's function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at the trial without amendment of the pleadings (as to which, see the observations in London Passenger Transport Board v Moscrop . The rule is clearly laid down in the judgment of this Court in Dare v Pulham :
'Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings.' " (emphasis supplied)
114 Toohey J said (at 304):
"But these decisions involved the way in which a trial was conducted and arguments presented. Here the Bank did not appear at the hearing; its absence did not affect the course of the trial and the issues as pleaded remained the issues between it and Akhil Holdings . Likewise, no question of election could arise. The failure of the Bank to appear at trial did not constitute any representation on its part that the issues for determination were other than the issues as pleaded; …" (emphasis supplied)
115 As these references make plain, the pleadings are not the sole basis upon which a party's rights to raise a matter on appeal will be determined. The conduct of the trial is also relevant. In Water Board v Moustakas (1988) 180 CLR 491 at 497 Mason CJ, Wilson, Brennan and Dawson JJ said:
"In deciding whether or not a point was raised at trial no narrow or technical view should be taken … it is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at the trial, especially where a particular is equivocal."
116 In Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 at 517 - 518, Isaacs and Rich JJ said (omitting citations):
"Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this, even if the matter were required to rest on authority only. See, for instance, Nevill v. Fine Art and General Insurance Co. … at p. 76; Browne v. Dunn … at p. 75, the relevant passage being quoted fully in Rowe v. Australian United Steam Navigation Co… at p. 24. There are qualifications, no doubt, and each case must depend for the proper application of the principle upon its own facts. It has been laid down by the Privy Council that "As a rule relief not founded on the pleadings should not be granted." "But in this case" (said their Lordships) "the substantial matters which constitute the title of all the parties are touched, though obscurely, in the issues; they have been fully put in evidence, and they have formed the main subject of discussion and decision in all three Courts. The High Court are right in treating the case as not within the rule": Sri Mahant Govind Rao v. Sita Ram Kesho … at p. 207." (emphasis supplied)
117 I have not seen all the transcript of the hearing before Mr Nicholas QC. From what I have seen, however, it appears plain that the valuers' legal representatives conducted the case on the basis that they were all "in the same boat". Mr Rainbow says, in effect, that that was how the proceedings were, to his observation, conducted. In this regard, it is relevant to note that, as Mr Williams SC conceded, Mr McCulloch did not dispute before Mr Nicholas QC that the valuers were under a duty of care, a proposition said to have been founded, on the Financiers' part, in expert evidence they called from a Mr Robertson. Thus Mr McCulloch appears to have acknowledged, most probably after a review of all the evidence, that the pleaded denial of duty could not be maintained.