respondent. The appellant's Notice of Motion is dismissed. Costs are reserved.
Key principles
A party is bound by the conduct of its case at first instance and, except in the most exceptional circumstances, cannot raise a new argument on appeal which it failed to put at...
The powers of an appellate court to allow amendment of grounds are to be exercised within the framework of issues settled at first instance; if evidence could possibly have been...
On an application under s 170 of the Industrial Relations Act 1996 to amend appeal grounds to introduce an issue not run below, the interests of justice do not favour allowing a...
Issues before the court
Whether the Industrial Court should grant leave under s 170 of the Industrial Relations Act 1996 to amend the grounds of appeal to raise a new issue...
Cited legislation
No linked legislation citations have been extracted yet.
Plain English Summary
A taxi company lost a prosecution in the Local Court after running its defence on the clear basis that its driver was a 'permanent bailee' entitled to certain pay. On appeal it tried to flip that position completely, saying the same sign-on report actually proved he was not permanent because some shifts did not match the official definition. The Industrial Court refused to let it change its story at the appeal stage. The judge said you cannot save up a brand new and contradictory argument for appeal; the time to fight about what the report really meant was at the original trial where witnesses could have been cross-examined and evidence called. Allowing the change now would be unfair and contrary to the public interest in finalising the real dispute at first instance.
AI-generated legal information, not legal advice. Zoe can make mistakes — check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,609 words · generated 24/04/2026
What happened
Tanwar Enterprises Pty Ltd operated a taxi and entered into a bailment arrangement with Mr Ranjeev Kumar. NSW Industrial Relations commenced a prosecution against Tanwar in the Chief Industrial Magistrate's Court alleging breach of s 357 of the Industrial Relations Act 1996. The charge concerned failure to provide Mr Kumar with entitlements said to be owing to a permanent bailee under the Taxi Drivers' (Contract Drivers) Determination 1984. A Combined Communications Taxi Network sign-on/sign-off report relating to Mr Kumar was tendered by the prosecutor and became an exhibit at first instance.
At the hearing before Goodwin LCM (sitting as Acting Chief Industrial Magistrate) on 27 June 2014, Tanwar, represented by counsel and solicitor, conducted its defence on the explicit premise that Mr Kumar was a permanent bailee rather than a casual bailee. This included express concessions to that effect. Mr Kumar was cross-examined by Tanwar's counsel on the footing that he was a permanent bailee; one exchange recorded in the judgment asked: "You knew you were a permanent bailee, didn't you? You understood you were a permanent bailee? You knew you were permanent?" The witness answered that he knew he was a permanent taxi driver for Tanwar. The cross-examination formed part of an attack on the witness's credit. The Report was before the court but the argument now sought to be raised—that certain shifts logged in the Report did not comply with the definition of "shift" in cll 2(f), (g) and (h) of the Determination and that this meant Mr Kumar was not a permanent bailee—was never put to the CIM.
Tanwar was convicted. It obtained an extension of time to appeal under s 197(1) of the Industrial Relations Act 1996 from Boland AJ in earlier proceedings ([2014] NSWIC 2), and the CIM's orders were stayed. On 12 December 2014 Tanwar filed a Notice of Motion seeking leave to amend its appeal grounds to introduce the new construction point based on the Report. Affidavits were read from Mr Simons (solicitor for Tanwar) on 12 December 2014 and 18 February 2015, from Mr Tanwar on 18 February 2015, and from Ms Wallace for the respondent on 16 January 2015. No objections were taken to the evidence.
The respondent opposed the motion, describing the new argument as a "180 degree shift". It noted that Tanwar had had every opportunity to raise the point, cross-examine on the Report, and explore the factual issues surrounding shift lengths, but had chosen not to. The respondent foreshadowed an application for leave to adduce fresh evidence if the motion succeeded; that evidence would address taxi driver duties, usage of the taxi otherwise than while logged on, and events such as accidents or illness that might affect shift length but not appear in the Report. Tanwar initially indicated it would seek leave to adduce further affidavit evidence to explain the Report but ultimately withdrew any such application.
The motion was heard on 24 February 2015 before Kite AJ. On 5 March 2015 his Honour delivered an interlocutory judgment dismissing the motion and reserving costs. The reasons make clear that the new point would require factual exploration that ought to have occurred at first instance and that the complete reversal of the appellant's position could not be permitted in the absence of most exceptional circumstances.
Why the court decided this way
Kite AJ began by noting that it was unnecessary to resolve the technical difficulties with the interaction between s 197 of the Industrial Relations Act 1996 and the Crimes (Appeal and Review) Act 2001 that had been flagged by Boland AJ. The parties had not fully argued the precise character of the appeal. What was common ground, however, was that the appeal was not a hearing de novo (citing Drake Personnel Ltd v Workcover Authority (NSW) [1999] NSWIRComm 343; (1999) 90 IR 464). Whether the appeal was by way of rehearing or appeal stricto sensu, the ability to introduce new evidence or new issues remained tightly constrained.
Section 170 of the Industrial Relations Act 1996 confers power to amend proceedings at any stage if the Commission considers it necessary in the interests of justice. Kite AJ treated the motion as an application to invoke that power to add a ground that had never been agitated below. His Honour then turned to the High Court authorities that govern such applications. He set out at length the reasoning in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8. That passage emphasises that even on a rehearing the issues are not "at large". The public interest in the finality of litigation, the avoidance of tactical decisions to withhold points for appeal, and the unfairness of requiring a respondent to meet new factual and legal issues for the first time on appeal, all point against allowing new arguments.
The judgment repeats the key statement from University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 that "it is elementary that a party is bound by the conduct of his case. Except 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." Kite AJ expressly found that no such exceptional circumstances existed. On the contrary, the new argument was "directly contradictory" to the position Tanwar had advanced before the CIM.
His Honour rejected Tanwar's submission that no fresh evidence would be required. The respondent's foreshadowed application demonstrated that factual matters—duties of a taxi driver, what constituted "usage" outside logged-on periods, the impact of accidents or illness on shift length—would need to be investigated. These were matters that "should have been explored at first instance". Citing Coulton v Holcombe, Kite AJ held that it was sufficient to dispose of the motion that evidence "could have prevented the point from succeeding" had it been raised below.
The forensic history reinforced the conclusion. Tanwar had had the benefit of counsel and solicitor. The concessions that Mr Kumar was a permanent bailee had shaped the entire conduct of the trial, including the cross-examination of the prosecution's witness. Allowing the amendment would encourage the very mischief the High Court had condemned: treating the first-instance hearing as a "preliminary skirmish" and keeping arguments in reserve for the appeal. Kite AJ was not satisfied that the interests of justice favoured the amendment. The motion was therefore dismissed and costs reserved pending the balance of the appeal.
Before and after state of the law
Prior to this judgment the law was settled at High Court level. Coulton v Holcombe and University of Wollongong v Metwally (No 2) had made clear that the default position on any appeal (whether to an intermediate or ultimate court) is that a party may not raise a new point that was not run at first instance if the opposite party might have met it with evidence. Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 and O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 stood for the same proposition. In the industrial relations sphere, the principle had been applied to proceedings before the Industrial Relations Commission (as it then was).
Section 170 of the Industrial Relations Act 1996 had long conferred a broad discretion to amend "in the interests of justice". What this judgment clarifies is that the statutory discretion must be exercised conformably with the High Court authorities. The "interests of justice" do not extend to permitting a complete forensic reversal that would require new factual inquiry on matters deliberately left unexplored below. The judgment also confirms that the procedural provisions of the Crimes (Appeal and Review) Act 2001 imported into s 197(2) of the IR Act do not convert the appeal into a hearing de novo; fresh evidence remains exceptional.
After the judgment the law remains unchanged in its fundamentals but is now more explicitly mapped onto appeals from the Chief Industrial Magistrate to the Industrial Court. Practitioners appearing in such matters are on clear notice that a deliberate forensic choice at first instance—such as an express concession that a driver is a permanent bailee—will ordinarily bind the appellant on appeal. The decision reinforces that the Industrial Court will not lightly allow amendment under s 170 where the new ground would necessitate fresh evidence or cross-examination that could have occurred before the CIM. The reservation of the question whether the appeal is a rehearing or appeal stricto sensu leaves that procedural point for future argument, but the substantive principle against new points is unaffected.
Key passages with plain-English translation
The judgment contains several set-piece extracts from High Court authority. At the heart of the consideration is this passage from University of Wollongong v Metwally (No 2), reproduced by Kite AJ:
"It is elementary that a party is bound by the conduct of his case. Except 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."
Plain-English translation: Once you have run your case a certain way in the trial court, you cannot suddenly switch tactics on appeal unless something truly extraordinary has happened. The court expects the real fight to occur at first instance, not on appeal.
From Coulton v Holcombe the judgment quotes:
"To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. 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."
Plain-English translation: Even if the appeal is a rehearing, you do not get to start the whole case again with new arguments. The trial is the main event. If everyone saved their best points for the appeal, trials would become meaningless warm-ups.
Kite AJ's own conclusion is succinct:
"I am not satisfied that it is in the interests of justice to grant leave to amend the application to appeal so as to introduce a new issue for determination in these proceedings."
Plain-English translation: Having weighed the contradictory position taken below, the opportunity Tanwar had to raise the point, and the likelihood that fresh evidence would now be needed, the judge decided that fairness and efficiency both pointed to refusal.
The cross-examination extract is also reproduced:
"Q. You knew you were a permanent bailee, didn't you? You understood you were a permanent bailee? You knew you were permanent? A. I, I knew that I was a permanent taxi driver for him."
Plain-English translation: Tanwar's own lawyer had nailed the witness to the "permanent bailee" label as part of the trial strategy. It is impossible to pretend later that the label was never accepted.
What fact patterns trigger this precedent
This precedent is triggered whenever a litigant in Industrial Court appeal proceedings under s 197 of the Industrial Relations Act 1996 seeks to introduce, by amendment under s 170, a ground or argument that:
was not pleaded, not opened, and not the subject of evidence or submission before the Local Court (Chief Industrial Magistrate);
could have been met by evidence or cross-examination that might possibly have defeated the point;
represents a direct contradiction of an express concession or the forensic premise on which the case was run below; or
would require the respondent to meet new factual issues (for example, the precise meaning of "shift", the impact of downtime, or the duties of a bailee) for the first time on appeal.
Typical triggers include attempts to recharacterise the same documentary evidence (such as a sign-on/sign-off report) in a manner never suggested at trial, or to re-open the status of a worker (permanent versus casual) after that status has been conceded for tactical reasons. The precedent applies with special force where counsel and instructing solicitor were present at first instance, so the failure to raise the point cannot be dismissed as oversight by an unrepresented litigant. It is not triggered by pure questions of law arising on admitted facts, but is almost invariably engaged when the new point has a factual penumbra that was never investigated.
How later courts have treated it
The judgment itself treats Coulton v Holcombe and University of Wollongong v Metwally (No 2) as binding and directly applicable to industrial appeals. Kite AJ draws no distinction between intermediate and ultimate appellate courts in the application of those principles. He cites the Court of Appeal's summary of the public-interest considerations—finality, difficulty of new facts on appeal, undesirability of tactical withholding, and the need to avoid surprising the opposite party—as accurately capturing the policy that must guide the s 170 discretion.
The decision applies Drake Personnel Ltd v Workcover Authority (NSW) for the limited proposition that an appeal under the predecessor legislation was not a hearing de novo. By leaving unresolved the precise mapping of the Crimes (Appeal and Review) Act 2001 provisions, the judgment implicitly treats the High Court authorities as operating independently of the exact appellate mechanism. No part of the reasoning suggests that the industrial context or the protective purpose of the IR Act dilutes the ordinary rule against new points. The refusal of leave is expressed to rest on the absence of "most exceptional circumstances", echoing the language of the High Court decisions without modification.
Still-open questions
Several procedural and substantive questions are expressly left open. First, the judgment notes the "difficulties with the operation of these sub-sections" identified by Boland AJ in the earlier extension-of-time decision but declines to resolve them because the parties had not fully argued the point. The exact interplay between s 197(2) of the IR Act and the rehearing provisions in Part 3 versus the appeal provisions in Part 5 of the Crimes (Appeal and Review) Act 2001 therefore remains undecided in this proceeding.
Second, the character of the appeal—whether it is a rehearing on the evidence or an appeal stricto sensu—is not determined. Kite AJ holds only that, on either characterisation, the ability to adduce new evidence is constrained and the Coulton principle applies. Future cases will need to decide which statutory pathway actually governs.
Third, the precise boundaries of "most exceptional circumstances" are not spelled out. The judgment makes clear that a deliberate forensic choice to concede permanent-bailee status and then reverse it on appeal falls well outside those boundaries, but does not catalogue what factual or legal scenarios might qualify.
Fourth, the interaction between s 170 amendment power and the foreshadowed fresh-evidence application by the respondent is left for another day. The judge accepts that fresh evidence would be required but does not decide whether leave to adduce it would have been granted had the amendment been allowed.
Finally, the judgment reserves costs. The ultimate disposition of the appeal itself, and whether any residual discretion to allow the point in truly exceptional circumstances might arise at final hearing, remains open. Practitioners should therefore treat the decision as establishing a strong presumption against new contradictory points while recognising that the statutory appeal machinery and the outer limits of the exception have yet to be fully mapped.
In an earlier interlocutory judgment handed down by his Honour Boland AJ in Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations [2014] NSWIC 2, Tanwar Enterprises Pty Ltd ("Tanwar" or "appellant") was granted an extension of time to appeal from a decision of her Honour Acting Chief Industrial Magistrate Goodwin ("the CIM"). The decision was in respect of a prosecution against Tanwar by the respondent, New South Wales Industrial Relations, under s 357 of the Industrial Relations Act 1996 ("IR Act"). The appeal was brought under s 197(1) of the IR Act. The CIM's orders were also stayed pending the outcome of the appeal.
On 12 December 2014, the appellant filed a Notice of Motion seeking leave, in effect, to introduce an issue for determination in the appeal which was not raised in the first instance proceedings. The respondent opposed the Motion to amend the application for appeal. This judgment deals with that Motion.
[2]
Evidence
The Appellant read the following Affidavits:
1. Affidavit of Howard Norman Simons filed 12 December 2014;
2. Affidavit of Ramesh Tanwar filed 18 February 2015; and
3. Affidavit of Howard Norman Simons filed 18 February 2015.
The Respondent read the Affidavit of Kathleen Wallace filed 16 January 2015.
There were no objections to the evidence read.
[3]
Appellant's position
The appellant's Motion seeks to raise an issue based on an interpretation of a Combined Communications Taxi Network sign on/sign off report relating to Mr Ranjeev Kumar ("the Report"), which was tendered as an exhibit by the respondent and formed part of the evidence at first instance. I note that Mr Kumar was the bailee of the appellant's taxi in respect of whom the proceedings were brought.
Mr H Simons, the solicitor for the appellant, in his first affidavit said that there are shifts relating to the respondent's claim in the Report that:
do not comply with the definition of a "shift" for the purposes of cll 2(f), (g) and (h) of the Taxi Drivers' (Contract Drivers) Determination 1984 ("the Determination").
The appellant contended that on the proper construction of the Determination, in particular the definition of "shift", the Report constitutes evidence that Mr Kumar was not a "permanent bailee". The outcome of the proceedings, it is said, would have been different had that been found to be the true position. This effect of the Report was not raised at first instance.
The appellant initially submitted that the issue does not require fresh evidence directly, but it would seek leave to adduce further evidence by way of affidavits with reference to the Report, to assist its interpretation, so as to argue the position that Mr Kumar was not a "permanent bailee" under the Determination. Ultimately, the appellant submitted it made no application to adduce additional evidence on the appeal.
Mr Tanwar in his affidavit stated his belief that Mr Kumar was not entitled to holiday pay, which view informs the grounds and reasons of the appellant in seeking to have the issue heard on appeal.
It is the appellant's case that if the orders sought in the Notice of Motion are granted, the actual issue in relation to the Report would be argued at the hearing of the appeal.
[4]
Respondent's position
The respondent submitted that the appellant's position brought forth in the Notice of Motion is a "180 degree shift" from a position advanced by the appellant at first instance, being the purported fact that Mr Kumar was a "permanent bailee" as opposed to a "casual bailee".
The respondent maintained that the appellant, with the benefit of counsel and an instructing solicitor:
had the opportunity to raise the issue in the first instance proceedings before the CIM and cross-examine the witnesses, including Mr Kumar, with respect to the Report. The appellant chose not to raise the issue in those proceedings.
It was submitted that the appellant had made express concessions in relation to Mr Kumar being a "permanent bailee" and that Tanwar was a "permanent bailor" within the meaning of the Determination. It was submitted that questions asked of Mr Kumar by the respondent in the lower court proceedings were asked "in the context and in light of the concessions that had been made" with respect to Mr Kumar being a "permanent bailee". Indeed Mr Kumar was cross examined on the basis that he was a "permanent bailee".
The respondent further submitted that allowing the motion would effectively extend the appeal proceedings, although it indicated that the issue will not necessarily affect the respondent's position a great deal.
During the hearing of the Motion, the respondent foreshadowed making an application for leave to adduce fresh evidence in the event the Motion was granted. That evidence would be directed to factual issues which emerge in relation to the definition of "shift". The appellant submitted in response that should such leave to adduce fresh evidence be granted, it would create further issues as to the extent to which further evidence and any cross-examination of witnesses is required for the purpose of the appeal.
[5]
Legislative Framework
Section 170 of the IR Act provides:
170 Amendments and irregularities
(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.
(2) Any such amendment may be made:
(a) at any stage of the proceedings, and
(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).
…
Section 197(1) and (2) provides:
197 Appeals from Local Court
(1) An appeal lies to the Commission in Court Session against:
(a) any order made under this Act by the Local Court for the payment of money or the dismissal by the Local Court of an application for such an order (including a dismissal on the ground that it does not have jurisdiction to deal with the application), or
(b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or
(c) a civil penalty imposed under this Act by the Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty, or
(d) a civil penalty imposed under Division 7 of Part 13 of the Work Health and Safety Act 2011 by the Local Court for a contravention of a WHS civil penalty provision or the dismissal by the Local Court of proceedings for such a civil penalty.
(2) The provisions of the Crimes (Local Courts Appeal and Review) Act 2001 that relate to:
(a) appeals from the Local Court to the District Court or Supreme Court, and
(b) the decisions of the District Court or Supreme Court on any such appeal, and
(c) the carrying out or enforcement of any such decision,
(including those provisions as applied by section 70 of the Local Court Act 2007 ) apply, subject to the regulations under this Act, to any appeal referred to in subsection (1).
The Crimes (Local Courts Appeal and Review) Act 2001 is now known as the Crimes (Appeal and Review) Act 2001 ("CAR Act"). Some difficulties with the operation of these sub-sections were noted by Boland AJ in Tanwar at [8]-[11].
The relevant provisions of the CAR Act relating to the provisions that apply to appeals from the Local Court to the District Court or Supreme Court appear in Part 3 and Part 5 of that Act respectively.
Sections 17 and 18 under Div 1 of Pt 3 of the CAR Act, being the provisions of the Act that relate to appeals from the Local Court to the District Court, provide:
17 Appeals against sentence to be by way of rehearing of evidence
An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.
18 Appeals against conviction to be by way of rehearing on the evidence
(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.
(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.
There appears to be no equivalent provision in relation to appeals from the Local Court to the Supreme Court in Pt 5 of the CAR Act.
[6]
Consideration
It is unnecessary to resolve the difficulties referred to by Boland AJ at this stage as to the applicable provisions of the CAR Act. Although the respondent had alluded to the issue of the nature of this appeal, I have not received full argument from both parties. What appears to be accepted is that the appeal is not a hearing de novo: see in this respect Drake Personnel Ltd v Workcover Authority (NSW) [1999] NSWIRComm 343; (1999) 90 IR 464. The appeal may be either a rehearing or an appeal stricto sensu. In either case the ability to adduce new evidence is constrained.
Section 170 of the IR Act allows for the Commission to make amendments at any stage of the proceedings that the Commission considers to be necessary in the interests of justice.
In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7, the High Court considered the nature of an appeal by way of re-hearing, and the extent to which public interest must be weighed in the determination of such matters:
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. 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. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438; Bloemen v The Commonwealth (1975) 49 ALJR 219. In O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319, Mason J in a judgment in which the other members of the court concurred, said:
In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480; Suttor v Gundowda Pty Ltd at (1950) 81 CLR 4187 at 438; Green v Sommerville (1979)141 CLR 594 at 607-8. However, this is not such a case. The facts are not admitted nor are they beyond controversy. The consequence is that the appellant's case fails at the threshhold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.
In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six justices of this court (University of Wollongong v Metwally [2] (1985) 59 ALJR 481 at 483 the court said:
It is elementary that a party is bound by the conduct of his case. Except 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.
The Court of Appeal recognised the great importance, in the public interest, of these principles. Their Honours summarised them in the following terms:
The finality of litigation; the difficultly of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance; keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court.
[7]
Costs
Ms Wallace in her affidavit filed 16 January 2015 stated that the respondent would be seeking professional costs in the matter, should the appellant be unsuccessful.
I will reserve the question of costs until after the balance of the appeal proceedings.
[8]
Orders
The Court makes the following orders:
1. The appellant's Notice of Motion is dismissed.
2. Costs are reserved.
[9]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 March 2015
The appellant's Notice of Motion is dismissed. Costs are reserved.
While the appellant asserts that the granting of the Motion will not require any fresh evidence, I disagree with that proposition. The respondent, in foreshadowing the making of an application for leave to adduce fresh evidence and further cross-examination of witnesses in the event that the Motion is granted, correctly indicates that the evidentiary issues would include the duties of a taxi driver, "usage" of the taxi otherwise than while logged on to the system and events such as accidents or illness which may impact on the length of a shift not reflected in the Report.
These seem to me to be but some of the factual issues which arise from the argument the appellant now seeks to raise. As observed in Coulton v Holcombe these issues should have been explored at first instance. It is enough to resolve the Motion against the appellant that such evidence could have prevented the point from succeeding.
Further, I accept the respondent's submission that the appellant, having the benefit of counsel and an instructing solicitor, had ample opportunity to raise the purported issue before the CIM, but did not do so. It is very clear that the appellant ran its case on the premise that Mr Kumar was a "permanent bailee". Nothing has been submitted to justify a conclusion that in this case, as described in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68, "most exceptional circumstances" exist so as to allow a departure from the case run at first instance. That is particularly so where the appellant wants to adopt a position directly contradictory to that contended below. Mr Kumar was cross examined by counsel for the appellant as follows:
Q. You knew you were a permanent bailee,didn't you? You understood you were a permanent bailee? You knew you were permanent?
A. I, I knew that I was a permanent taxi driver for him.
It seems by reference to the cross examination leading up to and following that question that it was part of an attack on the credit of the witness. And therefore part of the appellant's strategy below.
I am not satisfied that it is in the interests of justice to grant leave to amend the application to appeal so as to introduce a new issue for determination in these proceedings.