71 As appears to have been the case with many aspects of these proceedings, the Notice of Appeal (RAB 65-70) is a singularly unsatisfactory one. In that Notice of Appeal there were raised some twenty-seven grounds of appeal. Of those twenty-seven grounds of appeal, four were directed towards Murray AJ's refusal to permit the Third Further Amended Statement of Claim to be amended yet again in terms of Order 1 set out in the letter of 7 July 1998 and his Honour's failure to make the Declarations or Orders which, so it was suggested, would have flowed if those amendments had been allowed. With the exception of the last ground of appeal which was to the effect that Murray AJ erred in not awarding damages to the Plaintiff - a ground of appeal which, one would have thought, required a finding of breach of contract, and which was inconsistent with the Appellant's claim to receive payment on a quantum meruit basis - the remainder of the grounds of appeal were directed toward what were alleged to be errors in his Honour's fact finding including what were alleged to be errors where, in fact, there were none, and what were alleged to be errors in relation to facts which one would have thought were of no significance whatsoever - and what were alleged to have been errors in his Honour's construction of various documents.
72 The unsatisfactory nature of the proceedings continued even after the filing of the Notice of Appeal for, in the Written Submissions which were filed on behalf of Mr. Weller prior to the appeal being called on for hearing, it was noted that Ground 3 in the Notice of Appeal - that is the ground asserting that Murray AJ had erred in refusing to allow the Third Further Amended Statement of Claim to be amended yet again by the addition of the proposed paragraph 12F - was no longer pressed, despite which fact Ground 4 in the Notice of Appeal - that is the ground which alleged that his Honour had erred in not making the declaration sought in paragraph 12F - was pressed notwithstanding the fact that, in the Third Further Amended Statement of Claim no declaration - let alone that sought in the proposed paragraph 12F had been sought.
73 When the appeal was called on for hearing, Mr. R.J. Colquhoun and Mr. T. G. Howard (neither of whom had appeared on the hearing before Murray AJ) appeared for Mr. Weller, while Mr. F.P. Carnovale appeared, as before, for Mr. McDonald, Holdings and the Macroyd Group.
74 I turn, first, to Grounds 1 to 4 in the Notice of Appeal, that is, those grounds based upon Murray AJ's refusal to permit the Third Further Amended Statement of Claim to be further amended.
75 Although SCR Pt 20 r 1(1) provides that the Court may, at any stage of any proceedings, order that a party have leave to amend any document in the proceedings in such manner as the Court thinks fit, a party may not amend after the trial or, on appeal, to set up a case that was not put at trial, if, either, the raising of the ground at the trial may have affected the evidence led (see, for example, Waterboard v. Moustakas (1988) 62 ALJR 209; 77 ALR 193) or if it is unlikely that the result would have been different (see, for example, Federal Commissioner of Taxation v. Suttons Motors (Chullora) Wholesale Pty. Limited (1985) 157 CLR 277, 284).
76 Even if Ground 3 had, in addition to Ground 1, been pressed each, in my view, is without substance, for allowing the amendments would, in the circumstances, have been purposeless.
77 The basis upon which it was sought to demonstrate that his Honour erred in refusing to permit the addition of clause 12E was the assertion that "his Honour found, at the time Stephen Weller commenced work with the MacRoy group of companies there was no contract as to the terms of remuneration". This assertion is based entirely upon the following passage in Murray AJ's Judgment, which passage (RAB 58-59) follows after that passage which I have set out in which his Honour formally recorded his Conclusion:
"I have considerable sympathy for Mr. Weller, in that he did not take the precaution of crystallising the discussions he had with Mr. McDonald into the form of a precise offer at that time." (that is, in October 1989) "Thereafter, he was in the vulnerable position of having resigned his employment with Turner Corporation, without, on my findings, a concrete proposal from Mr. McDonald. He was thus placed in an extremely vulnerable position at the time of his commencement with the Macroyd Group. This vulnerability would not have escaped Mr. McDonald being the astute businessman that he is.