The trial judge had relied on the contrary evidence of a Council officer, Mr Hodder, to the Strata Titles Board which rested, as counsel for Mr Symes submitted, on a "somewhat vaguely expressed recollection".
34 The tender makes Mr Symes' point good. It points not merely to the possibility that evidence which could have defeated the point raised for the first time before the trial judge could have been tendered, but also to its actuality. Hence the principles stated in Coulton v Holcombe should have prevented the trial judge from permitting the body corporate to agitate a matter which was not in issue before the Strata Titles Board and indeed was common ground before it and before him. This is not to say that Mr Smith's evidence necessarily defeats the evidence of Mr Hodder. It is to say only that the point which Mr Hodder's evidence was used to make could have been defeated had the issue been raised at the correct time.
35 Mr Symes' arguments about the making of a finding in relation to matters of fact not appearing in the case stated also appear unanswerable.
36 How did the status of the No 3 wall come to be an issue before the trial judge? The contention that it was not common property was raised by the body corporate in its address, which took place after the address in chief on behalf of Mr Symes. In the course of that address counsel for the body corporate handed up written submissions in which the following appeared at pages 17-18:
"the eastern wall is not in law common property by virtue of the fact that it was not in existence at the time the Strata Plan was registered and is not depicted in that Plan. It is open to the Body Corporate now to take this point because there was no possibility of it being met by the calling of further evidence in the Board given that the point raises a pure question of construction of the Strata Plan and given that Hodder's evidence about the stage at which the building work had reached at the time the Strata Plan was registered was not the subject of any challenge: see for example Ex parte Anderson (1920) 20 SR (NSW) 207; Wheeler v Cahill (1943) 61 WN (NSW) 1; and Cook v Evans 91948) 65 WN (NSW) 289."
37 In reply counsel for Mr Symes objected to the taking of this point. He read the relevant part of Coulton v Holcombe. He pointed out at some length that the solicitor appearing for Mr Symes in the Strata Titles Board would have cross-examined on the point and could have called evidence on it had it been a live point. He might also have pointed out that the reason why Mr Hodder's evidence was not the subject of challenge on this point was doubtless because the point was not then in issue. And he could forcefully have said that the three cases cited have nothing to do with the matter and do not create any relevant exception to or qualification on Coulton v Holcombe. Indeed, Jordan CJ in Wheeler v Cahill specifically noted the principles in Coulton v Holcombe and, as will be seen in [38]-[39].
38 How did the trial judge deal with the objection raised by counsel for Mr Symes based on Coulton v Holcombe? He said:
"The question whether the items concerned are common property is a question of law for the reason already stated, namely, that it involves the conclusion that a physical item is within a statutory definition the content and scope of which depend upon the construction of provisions of the statute. Because that question is decisive of the issues arising on the stated case, it is open to the Court, in these proceedings governed by the now repealed provisions of the Justices Act , to dispose of the appeal solely by reference to that question. In Wheeler v Cahill (above). Jordan CJ said:
'It is true that any dissatisfied party may by procuring a case to be stated under s.101 obtain a determination by this Court under s.106 of any question of law arising on the case. It is true also that the jurisdiction so exercisable is not restricted to questions of law which have been specifically raised before the magistrate. It extends to all questions of law which are necessarily involved in his decision whether his attention was drawn to them or not; although the Court will not entertain a point of law not raised before the magistrate if, assuming it to have been taken before him, it is possible that it might have been met by calling further evidence.'
To the same effect are the following observations of Isaacs J (with whom Higgins and Starke JJ agreed) in George Hudson Ltd v Australian Workers' Union (1923) 32 CLR 413 referred to by Jordan CJ:
'Whether represented by counsel or not or, being represented by counsel, whether or not he is habitually accustomed to the recondite intricacies of scientific jurisprudence, if a litigant, merely because some decisive but unusual point escapes attention, were to be debarred from the benefit of the Supreme Court's ruling on the point, Parliament would have failed to meet an obvious necessity. The decisions I have quoted show that, in the opinion of the Judges who gave them, that failure did not exist; and I agree with them. That establishes, in my opinion, that, so far as the State Act operates, the case stated was open to the Supreme Court to decide every point of law that was relevant to the facts stated.'
Because the question whether the relevant items are common property was so central to the proceedings before the Board, I do not consider that principles of the kind discussed in Coulton v Holcombe (1986) 162 CLR 1 preclude my deciding this appeal by reference to that question."
39 It is to be noticed that in the last lines of the passage quoted from Wheeler v Cahill, Jordan CJ said that the raising of a new point of law, in relation to cases stated as much as elsewhere, was impermissible if the new point could have been met by calling further evidence. It is also to be noted that on the page before the passage quoted from Isaacs J's judgment in George Hudson Ltd v Australian Timber Workers' Union (1923) 32 CLR 413 at 427, namely page 426, he said that English authority held:
"that a fatal objection in law may be taken in the appellate Court, though not noticed before the justices, the condition being that it could not be cured by further evidence. The basis of that decision obviously is that in law the whole matter is open to the appellate Court on the law with respect to the facts, but, that being open, the ordinary dictates of justice require that neither party shall be prejudiced by the late discovery of the new point. If it is incurable, he is not prejudiced, except perhaps as to costs; but, if curable by evidence, he may be prejudiced, and, therefore, on grounds of natural justice the party taking it must bear his own misfortune rather than pass it on to the other party. This is a course followed in all appellate jurisdiction where no statutory provision prevents it. It is the rule in this Court and in the Privy Council; and is exemplified in numerous cases."