Ground 1 - dismissing the claim on the basis of the concession
"1. His Honour erred in dismissing the appellants' claim on the ground that the appellants' claim was entirely based upon establishing an agreement for an immediate grant to the appellants of shares in the company, Diona Pty Limited and where:
(i) His Honour found that the appellants and the respondent did make an agreement in 2005/2006 to grant the appellants a clear and discernible interest in the company Diona, which would crystallise after 10 years in the opportunity to become full shareholders of 8.33% of the issued shares in the company for each appellant (judgment at [135]); and
(ii) His Honour further found that the agreement in fact created powerful considerations in favour of finding the respondent owed a fiduciary duty to disclose to the appellants the approach that had been made by Calibre Pty Limited prior to the respondent entering into an arrangement with the appellants whereby they surrendered any interest they had in the company Diona Pty Limited (judgment at [139]); and
(iii) His Honour ought, in the circumstances, to have made a finding in favour of the appellants that they had established liability against the respondent for the relief claimed in the Statement of Claim."
- Ground 1 invites the appeal to be allowed based on the findings and reasoning at [134]-[141]. But that reasoning was unavailable in light of the concessions made on behalf of Morgan and Michael. It also presupposes that what was said by the primary judge amounted to "findings". For reasons already noted, that is far from evident on a reading of the reasons for judgment as a whole.
- The role of a court is to decide the dispute presented to it. A concession may relieve the court from resolving that aspect of the dispute, because the effect of a concession is to remove one or more issues from the dispute.
- It is trite that "[t]he adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel": Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46] and that "[e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so": University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; [1985] HCA 28.
- A concession as to a question of law does not bind the Court. For example, the parties may be agreed that a statute bears a particular meaning, or one of two meanings; in such a case the Court is not restricted to the meanings suggested by the parties. As was said in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [89], parties do not have the power, whether by concession or otherwise, to require a court not to apply the law. A recurring example is the agreement of parties that a court has jurisdiction. It is clear that the parties' agreement does not relieve the court from determining for itself that its jurisdiction has been enlivened: see Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 at [51] and the authorities referred to there.
- But one question which is very largely left for the parties to formulate is the ambit of their own dispute. It is ordinarily for the plaintiff to identify one or more causes of action on which the plaintiff seeks relief, and it is ordinarily open to the plaintiff, at some later stage, to confine its claim, or indeed to abandon aspects of its claim. In the same way, a defendant may admit aspects of a plaintiff's case. For example, not uncommonly, a defendant may admit liability to a claim, leaving only a contest as to quantum. In such circumstances, the court ordinarily has no role in determining whether the defendant was indeed liable while the concession is in place.
- When that occurs, the "real issues" in the proceedings - being the points in issue between the parties to which the obligations in s 56 of the Civil Procedure Act 2005 (NSW) apply - thereby shrink. Indeed, it is open to the plaintiff to renounce its claim altogether, and when the parties are agreed that litigation should be dismissed, then absent some additional requirement (such as leave in the case of a plaintiff under a disability, or in a representative proceeding) the Court will give effect to the concession.
- On the other hand, if the parties agree that their dispute does extend to a particular issue, then it is ordinarily not for the Court to interfere. As Hayne J put it in Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [196]:
"the respondent expressly conceded that the Court could and should entertain the point which is decisive of the appeal. Effect must be given to that concession. It is not a concession about the Court's jurisdiction. That would not bind the Court. But, after Crampton, there is no question about the Court's jurisdiction. The respondent not making the submission that the point now raised was given up by the appellant at trial, or cannot now be raised, it is not for this Court to say of its own motion that the appellant is barred from making the argument."
- In the present case, one may pass over the less unequivocal statements in the plaintiffs' opening. By the time of final address, the plaintiffs unequivocally renounced in both their written and oral submissions the possible alternative case formulated the previous Thursday afternoon for their consideration by the primary judge. While that concession remained in place, the primary judge was obliged to proceed on the basis that the plaintiffs' claim was confined in that way. This Court is likewise bound when determining this appeal by way of rehearing. It was and is not open for the proceedings to be determined contrary to the plaintiffs'/appellants' concession while that concession remains in place.
- Ground 1 is not made out.