Kingsley's Chicken Pty Ltd v Queensland Investment Corporation and Canberra Centre Investments Pty Ltd; Queensland Investment Corporation and Canberra Centre Investments Pty ltd v Kingsley's Chicken Pty Ltd [2009] ACTCA 11

1. On 28 May 2009 judgment was given in these appeals and, in the orders made, the parties were given leave to file and serve written submissions as to any other orders the parties might seek and on the question of costs.

2. On 11 June 2009, the Queensland Investment Corporation and Canberra Centre Investments Pty Ltd (the Lessors) filed written submissions under that order. On 25 June 2009, Kingsley's Chicken Pty Ltd (the Lessee) applied to the High Court of Australia for special leave to appeal against the judgment. The Lessee filed no written submissions.

3. On 15 July 2009, I caused my associate to write to the solicitors for the Lessee, with a copy sent to the solicitors for the Lessors, noting the absence of any written submissions under the order and extending the time within which to make any such submissions to 29 July 2009.

4. On 24 July 2009, the Lessee made an application in proceeding dated 23 July 2009, returnable before me on 27 July 2009, seeking that the orders as to the filing of written submissions be vacated and seeking leave to have the matter relisted when the High Court had determined the application for special leave. The Lessors did not appear on the hearing of the application but advised the court through the counsel for the Lessee that they neither consented to nor opposed the application.

5. The application was apparently made under s 37J of the Supreme Court Act 1933 (ACT) which gives a single judge of the Court of Appeal power to hear applications in relation to an appeal about, inter alia:

(j) directions for the conduct of the appeal (including directions about use of written submissions ...);

(k) any other question of practice and procedure in the Court of Appeal;

(l) costs and other matters incidental to a matter mentioned in pars (a) to (k).

6. In my view, none of these provisions give me the power to vacate orders regularly made by the Court. Further, on 28 May 2009, the orders were formally entered in the Registry and a formal order was sealed with the court's seal. Once regularly entered, such orders cannot ordinarily be recalled and revisited: DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226.

7. I note that on 5 June 2009, the Registrar sealed an order to which both the Lessee and the Lessors consented, extending the time for the Lessors to file its written submissions to 11 June 2009 and for the Lessees to file their written submissions to 18 June 2009. This appears to have been purportedly made in reliance on r 1611 of the Court Procedures Rules 2006 (ACT) which, by r 5001, applies to appeals in the Court of Appeal. Such an extension of time is not inconsistent with the finality of court orders, though the court can refuse to enter such orders, even those sought by consent: r 1611(1)(b). See also Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc and Ors [1999] FCA 1387; (1999) 161 ALR 79 (at [18]).

8. As argued, the application of the Lessee was really for a stay of the orders about the filing written submissions or an extension of time within which to file them. Either a stay or an extension of time may be granted notwithstanding the finality of the orders made. The argument for the Lessee was, in essence, that the complexity of the issues to be addressed would involve considerable work in the preparation of submissions. This, it was submitted, may be rendered unnecessary if the High Court grants special leave to appeal and the appeal is successful.

9. In my view, this is not a strong argument. The Lessors have already filed their submissions. In any event, if the costs issues are complex, then the High Court is unlikely to want to investigate them in detail. In general terms, the High Court prefers to deal with matters where the intermediate court of appeal has addressed the relevant issues and made appropriate findings and orders: Jacka v Australian Capital Territory and Anor [2009] HCA Trans 151. It is more likely that the High Court would benefit from orders made by the Court of Appeal, especially if there is some complexity about them. Indeed, it may be argued that, without the additional orders, if any, and costs, the Court of Appeal has not finally adjudicated the case: Jones v The Queen [1989] HCA 16; (1989) 166 CLR 409 (at 415).

10. In addition, it will be difficult for this court to come back to this matter at some distant time in the future to deal with costs when the issues are even less fresh in the minds of the court than they are now.

11. The application should be dismissed. The court will, however, grant to the Lessee one final opportunity to file and serve any written submissions within 7 days from this date. The court will then proceed to make orders as to costs and any other matters raised.

12. Since the Lessors have taken no substantive part in the proceedings and neither consented to nor opposed the orders, it is appropriate that there be no order as to costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of His Honour Justice Refshauge.