1 HANDLEY JA: This is an appeal from a decision of Williams DCJ who heard what was in substance a claim for reasonable remuneration on a quantum meruit basis. The case arises out of what might be hoped are unusual facts.
2 The plaintiff, a national of India, was brought to this country by the first defendant in May 1994. The Judge was not satisfied that he lived in the home of the first defendant during the first month he was in this country. Thereafter until about 29 May 1997 he lived in the home of the first defendant at 609 Old South Head Road Rose Bay. Initially the plaintiff worked in a domestic capacity for the first defendant, "in return for board and lodging". However, as time went on, the nature of his domestic tasks changed. Various attempts were made to train him in cooking and he did additional work on a more formal basis than when he first arrived. Ultimately, as the judge found, there was a falling out and the plaintiff left and at a later stage these proceedings were commenced.
3 The statement of claim sought damages but in truth the claim was for reasonable remuneration for services rendered for the first defendant while he lived in her home in the amount of $129,835.96.
4 The judge found that a reasonable rate of payment for the work done by the plaintiff for the first defendant as a cook and cleaner was between $13 and $15 an hour and his Honour adopted a figure of $14. He found that the plaintiff worked, mainly at the home but also at the warehouse of a company controlled by the first defendant, Orientique Pty Limited, for about twenty five hours a week.
5 On this basis, the judge considered that the plaintiff was prima facie entitled to recover the sum of $350 a week for 156 weeks. The plaintiff however conceded, as a deduction against his claim, an offset of $150 per week for food and board. The judge thought that this was unrealistically low and increased it to $30 a day or $210 per week. On this basis, he found the verdict for the plaintiff and entered judgment for $21,000.
6 The plaintiff has appealed and his amended grounds of appeal are that the judge erred in finding that he should allow a credit for $210 per week for board and lodging, and a second ground that his Honour should have found that no deduction for board and lodging was permissible and none should have been made. This of course involved an attempt to reverse an express concession made below in that an agreed deduction for $150 a week for board and lodging was included in the claim shown on p 203 of the blue appeal book which was handed up at the end of the hearing by plaintiff's counsel as part of his address.
7 An appellant can take a new point of law on appeal which was not taken at the trial, but because of the risk of procedural unfairness inherent in such a course the courts have carefully circumscribed this right. The general rule vigorously applied by the High Court in Coulton v Holcombe (1986) 162 CLR 1 is that a party is bound by the conduct of his case at the trial and cannot depart from it on appeal. The limited exception sanctioned by cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 enables a new question of law to be taken on appeal only where the appellate court is satisfied that the opposite party could not have answered the point by evidence at the trial.
8 The fresh point of law sought to be taken in this case is based upon the Industrial Relations Act 1996 which commenced on 2 September that year. Section 117 provides: