REASONS FOR RULING (No 3) ON APPLICATION FOR LEAVE TO FILE WRITTEN SUBMISSIONS
1 There is before the Court a motion by the first and second respondents (collectively "St George") for an order that the present proceedings be stayed on the ground that the applicants, in formulating their amended statement of claim, have been in breach of an implied undertaking of the kind identified by the House of Lords in Harman v Home Office [1983] 1 AC 280. The breach is said to have been constituted by the use of documents, including transcripts of hearings conducted by the Australian Securities and Investments Commission ("ASIC"). Those transcripts and documents had been made available by ASIC to the Commonwealth Director of Public Prosecutions ("the DPP"). The DPP, in turn, in discharge of what has been called a "prosecutorial duty of fairness" made them available to Counsel for the present first applicant ("Spalla") and the present second applicant ("Still") who had then been presented for trial on various criminal charges in the County Court of Victoria. One cause of action invoked by Spalla and Still in this Court is in malicious prosecution arising out of the institution against them of the criminal proceedings in the County Court.
2 The evidence in support of St George's motion for a stay was all on affidavit and the examination of those deponents who were required to attend for cross-examination proceeded on 15 and 16 April 2004 and concluded on 20 April. Then, on 21 April, I heard oral submissions by Mr G Harris of Counsel for St George followed by submissions for the applicants by Mr Hayes QC who appeared with Mr Wotherspoon of Counsel and submissions in reply by Mr Harris. The substantive submissions on each side were supported by written outlines.
3 On 26 April 2004 the solicitors for Spalla and Still served on St George a set of "supplementary submissions on behalf of the applicants." A copy was sent by facsimile transmission to my chambers. The purport of those supplementary submissions was to draw the attention of the Court to s 127 of the Australian Securities and Investment Commission Act 2001 (Cth) ("ASIC Act") and to contend, relying on Johns v Australian Securities Commission (1993) 178 CLR 408, that disclosure to Spalla and Still of the transcripts and other documents which had been authorised by ASIC as contemplated by s 127 was inconsistent with the imposition on Spalla and Still of an implied undertaking of the kind identified in Harman v Home Office.
4 Objection has been taken on behalf of St George to the applicants' filing of supplementary submissions after the conclusion of the oral hearing and without first obtaining the leave of the Court. Reference has been made in support of that objection to these observations of McHugh J by way of "postscript" in Eastman v Director of Public Prosecutions (ACT) (2003) 198 ALR 1 at 9;
'[27] On 28 March 2003 after I had circulated my reasons in this appeal to other members of the court, the appellant informed the registry that he had withdrawn his instructions to the senior counsel who had represented him on the hearing of the appeal. He also forwarded to the court a seven page document that he described as "Appellant's Supplementary Submissions".
[28] I have had no regard to these "submissions". They should not have been forwarded to the court. The rules of the court gave no authority for them to be forwarded. Nor did the court give leave to the appellant to file them. If leave had been sought, I would have refused it. If the court gave leave, it would have to give leave to the other parties in the appeal to file replies - with consequent delay in the business of the court.
[29] Parties to matters before the court need to understand that, once a hearing in the court has concluded, only in very exceptional circumstances, if at all, will the court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the court will usually give leave to the parties to file further written submissions within a short period of the hearing - ordinarily 7 to 14 days. But a party has no legal right to continue to put submissions to the court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.
[30] This is not the first time that this court has had to emphasise that the hearing is the time and place to present arguments. In Carr v Finance Corp of Australia Ltd (No 1) [(1981) 147 CLR 246 at 258; 34 ALR 449 at 458] Mason J said:
The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.
[31] Once the hearing has concluded, the workload of the court makes it impossible for the court to give leave to file further submissions - with all the attendant delay in the court's business by a fresh round of submissions. Efficiency requires that the despatch of the court's business not be delayed by further submissions reflecting the afterthoughts of a party or - as perhaps is the case in this appeal - some dissatisfaction with the arguments of the party's counsel.'
5 Reference was also made to similar sentiments expressed by the Victorian Supreme Court of Appeal in R v Zhanu Yu Zhong [2003] VSCA 56 at [2]-[4] and R v Theophanous [2003] VSCA 78 at [204].
6 It was contended on behalf of St George that the applicants' supplementary submissions represented no more than "afterthoughts" by their Counsel and, in the absence of demonstrated exceptional circumstances, the Court in the exercise of its discretion should refuse leave to file them.
7 In my view considerations different from those identified by McHugh J in Eastman shouldinform the discretion of this Court to receive supplementary written submissions after oral argument has concluded on an interlocutory motion like the present. The High Court in Eastman as the final court of appeal had heard full argument on appeal by special leave from orders of a Full Court of this Court. I infer that the position was not materially different in the two appeals to the Victorian Supreme Court of Appeal in the authorities to which I have been referred. By contrast, in the present case St George has invited the Court to exercise a wide, largely unfettered, discretion to make an interlocutory order staying proceedings without affording the applicants a trial, notwithstanding that the pleadings presumptively disclose one or more arguable causes of action.
8 That discretion, I consider, should be exercised having regard to all matters which either side considers relevant if that can be done without injustice to the other side. It is contended on behalf of Spalla and Still that the application of s 127 of the ASIC Act is such a matter and involves only a "succinct point." That is disputed by Counsel for St George who contends;
'… it is apparent that such submissions are anything but on a "succinct point". The Supplementary Submissions require further consideration of all of the evidence currently before the Court and will require detailed submissions in reply the preparation of which will require extensive consideration of the law in relation to a number of matters which will not be strictly limited to the construction of section 127 of the ASIC Act itself but would include, amongst other things, consideration of other sections in the ASIC Act and consideration of the terms of Director of Public Prosecutions Act 1983 (Cth). Further, given the issue of the source of power to provide documents to the DPP and its delegation raised by paragraph 3 of Supplementary Submission, the court may need to consider an application to re-open the hearing of evidence to deal with the issue of the alleged exercise of a discretion under section 127(4) of the ASIC Act, …'
9 If the answering submissions which are properly necessitated by the applicants' supplementary written submission are as detailed as that contention suggests, or require the calling of further evidence, those matters can be accommodated by appropriate orders for costs and the giving of adequate time in which to prepare the answering submissions, and, if necessary, adduce the additional evidence.
10 Counsel for St George also disputes that s 127 of the ASIC Act "ought to have been drawn to the Court's attention by all the parties." I accept that there was no obligation on Counsel for any of the respondents to draw the section to the attention of the Court. That is because the inference was at least equally open that Counsel for Spalla and Still, having considered the section, regarded it as irrelevant to the discretion which the Court was called on to exercise. However, responsible Senior Counsel has now impliedly confessed to having overlooked the relevance of the section and its utility in construing other provisions of the ASIC Act. In this respect, the present case is distinguishable from Eastman where a lay appellant had terminated the retainer of his senior counsel and wished merely to rely on some submissions of his own formulation. As I have already observed, if the admitted oversight can be overcome without prejudice to the respondents remediable by costs or time, that should be allowed.
11 It is clear that the applicants require leave to file and rely on their supplementary submissions. Those submissions should not have been transmitted to my chambers without first obtaining that leave or procuring the consent of the respondents. As Branson J pointed out in Jackson, in the matter of Conway v Conway [2000] FCA 1530 at [27];
'27 I conclude with remarks concerning the way in which the present application was handled by the parties' respective legal representatives. The application was filed on 22 September 2000. At a directions hearing held on 10 October 2000 a Registrar ordered that the application be adjourned until 17 October 2000. On 17 October 2000 a Registrar referred the application to me as duty judge. Neither party sought an adjournment of the hearing before me. However, it became apparent during the course of the hearing that neither of the legal representatives had fully researched the issues raised by the application. Why this was so was not made clear. I gave leave to the parties to file supplementary written submissions but, having regard to the nature of the application and the fact that one of the legal representatives was to depart overseas the next day, I directed that such submissions should be filed by mid-morning the next day. Notwithstanding that direction, the legal representative of one of the parties continued to send supplementary written submissions to my chambers for more than a week after the hearing.
28 I have recently had occasion to remind practitioners of what was made clear by Mason J in Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 257-258, namely that the hearing is the time and place for the presentation of arguments (see Al Raied v Minister for Immigration & Multicultural Affairs [2000] FCA 1357). The above circumstances suggest that there might be value in my again quoting his Honour's words. …'
Her Honour then quoted the passage reproduced in the extract from Eastman set out at [4] above and continued;
'29 In this case, as I have mentioned, the parties were given leave to file written submissions - but within a limited time period. No leave was granted for submissions to be filed outside that time period. It is quite wrong for a party to place a judge in the embarrassing position of receiving in his or her chambers unauthorised supplementary submissions. Issues of fairness and the public perception of fairness necessarily arise. Where, as happened here, the judge is invited to allow the other side time to respond, and by inference to delay the publication of judgment to the extent necessary to make the invitation meaningful, one has an out of court attempt by a party to influence the Court's management of the proceeding. I have no reason to think that any impropriety or discourtesy was intended in this case. However, in cases in which parties are authorised to provide to the Court supplementary written submissions, it is appropriate, as it is in all other cases, for the Court's directions to be strictly complied with.'
12 Like her Honour, I have no reason to think that, in filing the supplementary submissions without leave or consent, the applicants' advisers intended any impropriety or discourtesy. I trust that the reaction which their oversight has provoked will ensure that it will not be repeated. In the circumstances, I do not regard the omission to seek leave as being of a character to deny the applicants a favourable exercise of the discretion discussed above. For the reasons there explained, I consider that leave should be granted on terms. I shall therefore order that;
1. The applicants have leave to file and serve the supplementary submissions dated 23 April 2004 which are exhibit AA-86 to the affidavit of April Arslan sworn 27 April 2004 and filed herein.
2. The respondents have leave to file and serve by 11 May 2004 any written submissions and any further affidavit on which they wish to rely in answer to the written submissions referred to in paragraph 1 of this Order.
3. Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties for leave to cross-examine or further cross-examine the deponent of any affidavit filed herein or otherwise as the party applying may be advised.
4. There be no order as to the applicants' costs of preparing the supplementary submissions referred to in paragraph 1 of this Order or applying for leave to file and serve the said supplementary submissions.
5. The respondents' costs of preparing any written submissions or further affidavit referred to in paragraph 2 of this order and their costs of the application for leave to file and serve the supplementary submissions referred to in paragraph 1 of this Order be reserved.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice Ryan.