New material after conclusion of a hearing – Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 (22 May 2009) & Woy Woy Promenade Pty Ltd v Nu Squeeze Cafe Pty Ltd [2009] NSWCA 107 (14 May 2009)

May 27, 2009 |

In my experience there is a growing tendency of legal representatives copying letters to their opposing numbers to the court when there is a judge allocated to a proceeding.  The Internet makes that feasible and an easy operation.  There is also a tendency to correspond with a judge’s associate, copying the other side.  Both practices are fraught.  Courts try to be flexible and the assistance by some associates in facilitating consent orders is a terrific example of marrying technology with being responsive to parties needs.  The cost and time savings in not having to attend to get an adjournment or the worry in whether a fax has got to the court in time to adjourn a date off is significant.

But there is a limit and there is propriety………….and Singh v Secretary, Department of Employment and Workplace Relations is a salutory lesson in overstepping the line.  

The Full Court’s commentary on the merits of the appeal are uncontroversial and the path of the litigation, with a determined and somewhat obsessive self represented litigant  is fairly predictable.  The Full Court however was less than impressed when the Respondent, effectively the Commonwealth Government, embarked on communications with the bench after the conclusion of the hearing. The two issues Sparke Helmore raised was:

  • a correction to the Appeal Book and Respondent’s submissions as to the name of the Respondent differed from the terms of the Order by Goldberg (par [63]).
  • correcting a statement made by a witness in an affidavit (par [64])  

The bench quoting Mason J in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246, and Branson J in  Jackson v Conway [2000] FCA 1530 made it clear that Sparke Helmore should not have sent the letter without the court’s leave (par [68]).  Part of that irritation was no doubt because shortly thereafter the appellant, a tough customer by any measure, put in further submissions without leave.  When the door is opened all sorts walk through.     

One is fairly sure some judges are less than impressed when a decision contains comments such as:

73 The respondent’s solicitors’ letter not only should not have been written but it is not helpful.

74 The respondent’s solicitors suggest that the respondent should be described as “Secretary, Department of Employment and Workplace Relations” “as the proceeding was commenced in that name and the Court has not made an order changing the name”.

75 We do not agree. The respondent should be correctly described.

The general principle is pithily and pointedly set out at paragraphs [70] – [71]:

70 Legal practitioners and the parties, represented or not, must understand that they should not make supplementary submissions to the Court after an appeal has been heard, and whilst judgment is under consideration, without first obtaining the Court’s permission. The parties must make their written submissions before the hearing of the appeal. The hearing of the appeal is for oral submissions. It is not designed to provide the parties with material for further written submissions.

71 At the completion of the hearing of the appeal the parties’ right to make submissions on the appeal is exhausted. If it were otherwise and a party could simply present a further submission, the appeal could go on interminably. Such would be inconsistent with the maintenance of the administration of justice.

The fact situation in Woy Woy Promenade Pty Ltd v Nu Squeeze Cafe Pty Ltd  involved a determination on whether a lease was enforceable and the respondents liable as guarantors for the lessee against the respondent’s claim that there had been a valid termination on the basis that the building works were not concluded by a specified date.   The appellant did not either election or waiver, presumably in a reply, or in oral submissions.  On appeal the appellant wanted to raise election or waiver for the first time. Giles J dealt with the late submissions in every bit a snippy way was the Federal Court in Singh when he said:

48 Election and waiver were not pleaded below. Nor were they raised in submissions, save that counsel for the respondents observed that there had been no suggestion of waiver or estoppel or any conduct that would otherwise prevent them from relying on cl 2.5(b) of the deed.

49 The appellant submitted that it should be permitted to raise election and waiver on appeal. It said that the first respondent’s payment of rent after 30 June 2004 and until October 2004 was a clear election and founded a clear waiver, and that other evidence could not reasonably have been given to negate election or waiver. It said that election and waiver were always relevant to the question of valid termination, as indicated by the observation made by the respondents’ counsel.

50 These last submissions were rather remarkable. Even if relevant, election and waiver were not relied on, and that was the point of counsel’s observation. Pointing out that something is not an issue does not make it an issue.

51 There had to be conduct unequivocally affirming the deed, with knowledge of the facts entitling termination. While the evidence of it was sketchy, the payment of rent was accompanied by complaints about access to the ramp; in substance, about the absence of the kerb scoop and the marked pedestrian crossing, affecting access by potential customers to shop 4. It is not clear that the respondents knew of the consent plans, or of condition 22; some knowledge may be inferred from the letter of 29 October 2004, which referred to inquiries indicating “that the work in accordance with the development consent has not been complied with and Council has now issued an order requiring compliance”, but when any knowledge was acquired is unclear. Neither other communications with the appellant nor knowledge of construction of the ramp contrary to the development consent was explored at the trial, as matters bearing upon whether there was election or waiver by the payment of rent. This could well have been done if election or waiver had been pleaded. In my opinion, the appellant should not now be permitted to rely on election or waiver: it is sufficient to refer to Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438 and Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8.      

(My emphasis)

The current movement for intensive case management puts pressure on that parties to plead only that upon which they intend to rely.  That seems trite given that is as it should be.  But not to raise waiver and election in a case like this does make one check his or her P & I policy. 

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