Nicholls v Wilson & Partners Limited [2010] NSWCA 140 | Case summary

Judgment 1 ALLSOP P: An application was made on Friday 28 May, before me, in relation to the submissions that had been filed by the appellant. The application made by the respondent was in the nature of case management. Justice Young, who is presently on leave, has been case managing the appeal, and in his place Justice Lindgren will be taking up the case management, to the extent that that is necessary, in due course later this month and next month. 2 The appeal is due to commence on 26 July. I will not go through the detailed issues in the case. 3 The matter proceeded before a Judge of the Commercial List for a considerable period of time, resulting in a substantial judgment which is attacked root and branch by the appellant. Justice Young, familiar with the issues, restricted the appellant to written submissions of 50 pages. Given the nature of the appeal that, quite plainly, required the appellants to think about the issues they wished to propound on appeal and concentrate and distil their arguments to best assist the Court in a 50 page document. Submissions were filed which did not comply with the direction. The first, and most minor, aspect of the failure to comply was that the submissions were 60 pages and not 50. If that were the only difficulty, I doubt that the matter would have been raised by the respondent, other than being noted in passing, and if that were the only difficulty, I would, in all likelihood, have given an extension nunc pro tunc. But there is a more fundamental difficulty. There has been a failure to comply with the substance of the rules concerning fact appeals. This is, in large part, a fact appeal. The significant burden of this Court's work are appeals raising significant questions of fact requiring rehearing under s 75A of the Supreme Court Act. The High Court has, on numerous occasions in the last 20 years, been at pains to remind intermediate appellate courts of their statutory obligations under these sorts of appeals. They are to conduct a real rehearing on the papers by reference to the issues propounded by the parties in the notice of appeal and other constituent documents such as notices of contention and cross-appeal. 4 This statutory obligation on the Court and the burden of the task that it imposes on the Court (of which it should not be taken that I am complaining) requires counsel and solicitors to prepare appeal documents in accordance with the rules to maximise the efficient disposition of appeals. In that light the rules lay down a structure for that undertaking. It is a structure which can always be amended by the Court at the request of the parties. There is no difficulty in making bespoke directions for particular cases of complexity or difficulty or simplicity, but the essential difficulty that rehearings raise is that the arguments as to facts must be coherently presented. 5 May I say at the outset that that task is and will almost never be adequately undertaken merely by waving a pen at submissions that were put below. The primary Judge in this case, as primary Judges do in all cases, found facts with the coherence and logic displayed by the reasoning. 6 The task of the appellant in a fact appeal is to identify, broadly speaking, two groups of related facts: first, the facts as found that are said to be found wrongly; second, the facts not found that it is said should have been found. Those two bodies of facts are related. Very often the fact not found will not be found because of the error in the finding of another fact. Therefore the coherent identification of those two broad categories of facts is essential to the clear enunciation of the issues on appeal. It is not usually, as I have said, of very much assistance to wave a pen at what was done prior to the facts being found. 7 Part 51 r 51.36 is an attempt by the rule makers to assist the parties to bring their concentration to bear upon what is required. Part 51.36 sub r 2 states the following: "Submissions raising substantial challenges to findings of fact must include a statement in narrative form not exceeding 20 pages setting out (a) the findings challenged and (b) the findings contended for and the reasons why the Court should substitute those findings, and (c) supporting references to the transcript and other evidence." 8 The direction of his Honour Justice Young did not direct itself to 51.36. It might be taken that by not doing so, there was relief from that requirement. 9 Early in the preparation of this appeal I made a direction that each party serve on the other an annotated judgment and a schedule of facts. The judgment was annotated and, as I understand it, a schedule of facts was identified drawn largely from the facts that were said below should be found. The 60 pages that have been prepared, other than by reference to incorporation, make virtually no references to findings of fact. One would be forgiven on reading it to think that this was a case about legal principles in short compass and not an appeal in respect of which multifarious findings of fact are identified and challenged. 10 The submissions, rather, in varying degrees of helpfulness, range over the other issues in the appeal. The respondents are due to reply to these submissions by 10 June. In my view, it would be unjust and productive of a significant degree of wasted costs to retain this aspect of the timetable. The submissions filed by the appellants simply do not comply with the orders of the Court. May I say in my experience running this list, to a greater or lesser degree this practice of simply incorporating references and submissions below is becoming more prevalent in what appears to be - and I do not necessarily say it in relation to this case, so it should not be misunderstood - in many cases a lazy attempt to evade the rules. I do not make that comment in relation to this case, but that qualification should not be taken as detracting from my view of the unsatisfactory nature of the submissions. 11 Before I come to what should happen now, I should say that to the extent that the appeal may ultimately be successful and subject to further order, these submissions are to be at the cost of the appellant in any event, and the costs of dealing with them, to the extent that they have been thrown away, will be paid by the appellant, in any event. It would be difficult, at the moment, to understand what costs would have been thrown away and that will have to remain for an assessment, should it arise. 12 What I propose to do is as follows: The appellants are to file on or before 21 June submissions of no more than 50 pages and a schedule described below. The schedule is to be an exhaustive statement of the matters set out in pt 51.36 sub r 2. It is not to be prepared by reference to other documents. It is to be prepared succinctly and is to refer to all evidence to be relied upon by the appellant. If a fact is not identified in it or an evidence reference in support is not referred to in it, then the leave of the Court will be required to challenge that fact or to rely upon that evidence. 13 The schedule is to be provided to the respondent in electronic and hard copy form. The electronic form is to be used by the respondent so that it may add to the references in the evidence that they would rely upon in answer to the evidence identified by the appellant. This document then will contain the evidence for and against propositions of fact asserted by the appellant that were either found incorrectly or that should have been found. 14 The 50 page submission is to be a succinct propositional document to be organised, as far as coherently possible, by reference to the grounds of appeal. 15 In my view, there is no reason why these documents should not be produced by 21 June. That is five weeks before the hearing. 16 To the extent that evidence to be relied upon in the schedule is evidence that is the subject of the application for fresh evidence, that should be made clear and all such references should be quarantined and made clear in the schedule as dependent upon success in the application to adduce fresh evidence. 17 I am not clear in my own mind how this interruption to the timetable will act as an interruption to a critical path of activity. The parties have been in litigation for many years. Notwithstanding the failure, in my view, to illuminate the issues clearly in the submissions, I am under no doubt that the parties basically understand the structure of what each other's contentions are, at least the universe of them. That is not to be taken as permission, or a rationale, for anything other than precise exposition of the issues on appeal. 18 There is an appeal court that is going to attempt to deal with the issues put forward by the parties and nothing else. Further directions and any readjustment of the timetable as a consequence of this interruption can be dealt with when the matter is next before the Court and the parties list the matter before Justice Lindgren. The costs of today will be paid by the appellant, in any event. 19 I direct the solicitors to reduce the contents of my reasons today into a set of short minutes to be forwarded to my Chambers no later than 4pm Wednesday 9 June. 20 There was some suggestion in the respondent's submissions that undertakings for due prosecution of this appeal have not been given. My recollection is they were given in court by counsel on behalf of his clients. Lest there be any doubt, the stays that are in place depend and have their foundation upon the Court's understanding of an undertaking by the appellants to prosecute this appeal with despatch and efficiency. 21 What I have indicated today indicates a clear difference of view between those acting for the appellants and myself as to what is an efficient disposition of this appeal. I do not presently take that as a failure to comply with the undertaking. However, the appellants should be under no illusion that the stays in this case depend upon the prosecution of this appeal with diligence and efficiency. 22 There was a motion put on to permit the orders made by Justice Young to be taken to have been complied with by the submissions. That motion is refused with costs.

Nicholls v Wilson & Partners Limited

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