67 For all these reasons leave to amend in the terms of paragraph 20 must, in my opinion, be refused.
68 Mr Lynch submitted that his Honour was wrong in finding that there was no claim in writing in relation to the cool room, the counter, two cash registers, one refrigerator, two freezers, a scale, a milk shake maker and canisters, shelves and a stove. He submitted that the respondent had not pleaded the absence of a written claim, which is undoubtedly correct, nor sought leave to do so when his Honour raised the point and, accordingly, was not entitled to rely upon it. Thus, he submitted, his Honour had in effect decided the issues on a point not put forward for his consideration. Whilst, the pleadings generally do and normally should define the issues, that is not always so. The parties may, by the introduction of evidence relevant to other issues or going beyond the pleading, or otherwise by their conduct of the case, at least impliedly, agree to other issues being determined. The High Court recognised this in Dare v Pulham (1982) 148 CLR 658. It is to be appreciated, of course, that in that case there was evidence admitted without objection. In that context their Honours said, at p.666:-
"The parties, bound by the course which they took at the trial must accept the answer given by the jury to the question of damages submitted in the form to which they assented or in which they acquiesced ..".
69 This case is not quite so easy. During the hearing, his Honour raised the question of the claim having been made as required by the policy. The simple fact was that no written claims other than that made towards the end of 1983 and that particularised in 1987, had been made. However, when the point was raised, counsel, who then appeared for the respondent, made no application to amend to allege the absence of a written claim and, notwithstanding, made submissions to his Honour in final address that there had been no proper claim. Mr Lynch informed the Court that these submissions were made and that counsel then appearing for the appellant took no objection to them.
70 It should be noted that counsel for the appellant, after a lengthy exchange with his Honour about the subject, said that he did not wish it to be argued at any later stage that the appellant had acceded to a proposition that he had not complied with his obligations under the policy, as that had not been raised as a defence: BAB53. However, in final addresses that point was argued by counsel for the respondent without objection or submissions in reply by counsel for the appellant.
71 In my opinion, trial Judges should be alert to ensure that matters decided are the subject of a pleading. In this way there can be no suggestion that the matter has not been adequately and properly raised for the consideration of the parties and the Court. On the other hand, in the way in which this trial proceeded, I can understand how his Honour was of the view that the need to make a claim in writing was an issue before him in respect of all items, and that notwithstanding what had been said earlier, the non-objection and non-response to final submissions meant that the appellant's previous attitude was not being maintained.
72 In the end the amount involved in relation to this argument was approximately $9,700. It may have been $10,500 depending on whether one treated the counter as a fixture.
73 In all the circumstances, and having regard to the amount involved, I do not consider that this point, even if it is correct to say that his Honour erred, which I am not satisfied it is, raises a sufficient basis for the grant of leave to appeal.
74 As Reynolds JA said, with the concurrence of Moffitt P and Hope JA, in Dunn v Ross Lamb Motors & Anor [1978] 1 NSWLR 26, at p.28:-
"Without attempting to categorise cases in which it is appropriate to grant leave, no features are apparent in this simple case, even if the learned Judge was arguably wrong, which would justify a grant of leave."
75 This point was reinforced by the Court of Appeal in Carolan v AMF Bowling Pty Limited (Court of Appeal - 16 November 1995 - unreported), which is a significant decision on an important issue relating to appellate rights but, for some reason, does not seem to have been reported in the New South Wales Law Reports. Sheller JA, with whom Cole JA agreed, said:-
"In order to be granted leave to appeal the applicant must demonstrate something more than that the trial Judge was arguably wrong in the conclusion arrived at."
76 Kirby P considered the policy reasons for limiting the right to appeal as including the discouragement of unnecessary litigation in small amounts where public costs, including the time of Judges, Court staff and the use of public buildings were necessarily involved, and:-
"The need ordinarily to conserve the time of the Court of Appeal in small claims to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear, that is to say goes beyond merely being arguable."
77 I propose to apply the principles stated in these cases in considering the various submissions supporting the application for leave to appeal.
78 The next matter raised by Mr Lynch involved his Honour's refusal to award $8,000 by way of loss of goodwill. This was said to arise by virtue of the failure to pay the amount to which the appellant was ultimately found to be entitled. In these circumstances, so it was submitted, the business could not be re-established. There are three major difficulties for this submission. First, there was no insurance for consequential loss. Secondly, Mr Lynch conceded that there was no evidence as to the cost of repairing the shop, such as to allow the business to be re-started and, accordingly, that no causal connection between the failure of the respondent to pay and the failure to re-start the business was established. Thirdly, there was no evidence that even if the payment for stock-in-trade had been made and was used to restore the premises, that the appellant would then have had sufficient money to purchase new stock-in-trade. For all these reasons, and applying the applicable principles, leave should not be granted to litigate this point.
79 The next submission was that there should have been a payment in respect of the cool room and the counter. However, the cool room was undoubtedly part of the premises, which were not insured. At BAB95, that was expressly conceded in evidence, a concession Mr Lynch accepted as fatal to this aspect of the claim. Mr Lynch agreed there was no evidence of the status of the counter and, as the onus was on the appellant to prove that to which he was entitled, that, in my opinion, leaves the position that the Court simply does not know, because the appellant failed to prove, whether the counter was a fixture and, thus, whether it was insured. That is sufficient to dispose of that claim, although even if the counter were not a fixture, I do not consider that an argument about $800, involving no matter of principle, would justify the grant of leave to appeal.