REASONING
18 At the outset of this appeal, it is necessary to decide whether Mr Stewart should at this late stage be granted leave to raise an argument not advanced before the primary Judge.
19 The submission that the primary Judge ought to mould equitable relief to suit the circumstances of the case clearly ought to have been raised before the primary Judge when his Honour was asked to decide whether or not to set aside the resolution. No satisfactory explanation has been given by counsel for Mr Stewart as to why this did not occur. Rather, counsel for Mr Stewart rested his case before the primary Judge on the unsuccessful arguments that the Board resolution was not passed as a result of a breach of a statutory or fiduciary duty, and that the failure to obtain shareholder approval was either not a procedural irregularity or, if it was, could be corrected by the Court. Accordingly, the primary Judge did not address and did not make findings relevant to the issue of moulding equitable relief, with the consequence that, if we accept that the issue should be ventilated, it would be necessary for the matter to be remitted for further hearing.
20 Counsel for Biodiesel contends that the issue should not be allowed to be raised on this appeal because the primary Judge had no opportunity to consider it. It was not submitted to his Honour that any equities were claimed in favour of Mr Stewart in relation to the order setting aside the issue of shares. In the complete absence of such submissions, it is said, it is difficult to see how any error can be imputed to his Honour.
21 Mr Stewart now seeks to have the litigation substantially re-opened in order for the Court to determine and make orders involving a final consideration of the amount of work which he had completed and the proper remuneration which he should be paid. As a means to progress such litigation, Mr Stewart proposes that, if the parties cannot agree, a Registrar of the Court should conduct an investigation into the value of Mr Stewart's efforts. Having regard to the history of the matter to date and the observations of his Honour in his reasons for judgment, it seems, in our view, highly likely that the parties will not be able to agree on the amount of remuneration which should be paid. Reinvestigating the hours worked and the appropriate remuneration would require a far-reaching inquiry. It would also introduce complex questions of valuation which, on the submissions before the primary Judge, have until now been unnecessary to consider. Clearly, the proposed orders, in addition to granting leave to litigate an issue which was not put before his Honour at the appropriate time, will give rise to an additional costly and time-consuming inquiry. It is likely that further evidence will need to be adduced and considered, and that such an inquiry will quickly extend beyond the capacity of a Registrar.
22 The authorities on the question whether leave should be granted to raise an argument on appeal which was not raised below point to the caution that should be exercised when determining whether the interests of justice require that the leave be granted in a particular case. The Full Court in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at 44-45 expressed the principles in the following way:
'An appeal to this court from a decision of a judge of the court is an appeal in the strict sense and not an appeal by way of rehearing: Dynasty Pty Ltd v Coombs(1995) 59 FCR 122; White v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 511. The appeal power is thus to be exercised for the correction of errors: Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission (2000) 174 ALR 565 per Gleeson CJ, Gaudron and Hayne JJ at [21]. This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance. In a case where, had the issue been raised before the primary judge evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal: Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ. In other cases, it will be for the Full Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided ….
As Gibbs CJ, Wilson, Brennan and Dawson JJ observed in Coulton v Holcombe at CLR 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.'
(Emphasis added; excess citations removed)
23 It should be noted that their Honours emphasised that, where the party seeking leave to raise a new point on appeal had a full opportunity to adduce evidence below to substantiate that point but failed to do so, leave should not be granted. As the passage in Coulton v Holcombe (1986) 162 CLR 1 at 7 indicates, it is not the proper role of an appellate court to resolve substantial issues on which evidence was not adduced and fully tested below. Rather, its jurisdiction should be exercised chiefly in the review of first instance decisions, with the proviso that the interests of justice may, in some limited circumstances and subject to the convenience of the Court, warrant the ventilation of a new ground on which the original application may have been based: see also M87 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 148 at [23].
24 In our view, having regard to the history of the matter, the consequences of making the orders sought, and the authorities on this point, this is not a case in which leave should be granted to Mr Stewart to raise the new issue relating to the moulding of equitable relief.
25 In this case, Mr Stewart had a full opportunity to make submissions in relation to the issue of moulding equitable relief before the primary Judge. His decision not to advance such submissions was taken in the context of an express inquiry by the primary Judge as to whether relief on a quantum meruit basis was being sought. This, in our view and on the basis of the principles expressed in H v Minister 63 ALD at 44-45, is sufficient to warrant refusing the leave sought. Furthermore, if the present matter were remitted to a Registrar of the Court, it would be necessary for the Registrar to ascertain an appropriate approach to the issue of valuation in order to determine the relevant equities between the parties, calculate the quantum of remuneration which would be allowed to Mr Stewart, and determine whether such remuneration should be paid in the form of fully paid ordinary shares. Although these observations by no means exhaustively list the matters which would have to be dealt with, they do reflect the complexity and problematic nature of the issues which would be likely to arise from the proposed remittal.
26 It is important to emphasise that, in the present case, the argument which Mr Stewart seeks leave now to advance was overlooked by him during the trial, where it would have been appropriate for him to ventilate it before the primary Judge. Accordingly, there can be no suggestion of any denial of procedural fairness because Mr Stewart had ample opportunity to place before his Honour all the submissions which he wished to make on the law and the evidence. The hearing began in August 2005 and was heard over ten days after extensive pre-trial directions. Perhaps the argument now sought to be raised is a result of no more than a fresh consideration of the merits of the case in light of his Honour's judgment.
27 In these circumstances, we conclude that to allow the new point to be raised - and with it an increase in the costs of this litigation, the likelihood of further delays, and a need for further evidence to be adduced and for time to be spent in consideration of additional submissions - would subvert the appeal process and prolong the litigation without justification.
28 Accordingly, leave to raise the foreshadowed argument should not be granted on this appeal.
29 In the light of the refusal of leave to raise the new ground on appeal, it is not necessary for the Court to consider the other grounds of appeal in this matter, or the matters which arise as a consequence the Amended Notice of Contention filed by Biodiesel.
30 Accordingly, for the above reasons, the appeal is dismissed with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Moore and Tamberlin.