Recent Cases

Media Niugini Ltd t/as EMTV v International Management Group of America Pty Ltd [2023] NSWCA 33 (02 March 2023) (Gleeson, Leeming and White JJA)


APPEALS – Practice and procedure – Procedural fairness – Duty to inform parties of proposed departure from basis upon which case is conducted – Where trial judge said to have adopted construction of commercial contract different from those proffered by parties during hearing – Where trial judge’s conduct said to constitute failure to accord procedural fairness to parties – Where principal issue at trial was existence, rather than construction, of contract in question – Whether trial judge’s failure to alert parties to proposed construction was procedurally unfair – Whether trial judge actually decided proper construction of contract – held that trial judge’s conduct and findings evince no failure to accord procedural fairness

APPEALS – Scope of appeals – New point taken on appeal – Principle of finality – Where appellant did not raise questions of construction at first-instance in answer to respondent’s claim for damages for breach of contract – Where construction of contract raised on appeal under guise of procedural fairness as ground for avoiding liability – Where questions of construction readily apparent and able to be raised at first-instance – No issue of principle