Commonwealth of Australia v Davis Samuel Pty Ltd & Ors [2009] ACTSC 12 (23 February 2009)

Last Updated: 16 March 2009

COMMONWEALTH OF AUSTRALIA v DAVIS SAMUEL PTY LTD & ORS [NO 6]

[2009] ACTSC 12 (23 February 2009)

PRACTICE AND PROCEDURE – Written submissions following oral hearing – extension of time – additional submissions by defendants.

Court Procedures Rules 2006 (ACT), Div 2.6.7, r 1508

Commonwealth of Australia v Davis Samuel Pty Ltd & Ors [No 3] [2008] ACTSC 76

Carr & Anor v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; (1981) 147 CLR 246

Eastman v Director of Public Prosecutions of the Australian Capital Territory and Ors [2003] HCA 28; (2003) 214 CLR 318

Re Application of the Chief Commissioner of Police (Victoria) [2005] HCA 18; (2005) 214 ALR 422

Holland v Jones [1917] HCA 26; (1917) 23 CLR 149

Brough v Perkins (1794) 6 Mod 81; 87 ER 837

Estwick v Cooke [1790] EngR 280; (1729) 2 Ld Raym 1557; 92 ER 509

Capital Property Projects (ACT) Pty Limited v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9

Powell v Begg & Wendt & Co (1898) 9 QLJ 110

Escobar v Spindaleri and Anor (1986) 7 NSWLR 51

John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77

JUDGMENT

No. SC 75 of 1999

Judge: Refshauge J

Supreme Court of the ACT

Date: 23 February 2009

IN THE SUPREME COURT OF THE )

) No. SC 75 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: COMMONWEALTH OF AUSTRALIA

Applicant

AND: DAVIS SAMUEL PTY LTD AND ORS

Defendants

ORDER

Judge: Refshauge J

Date: 23 February 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The plaintiff have leave to file and serve submissions in reply to those filed by the 1st, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 17th defendants on or before 27 February 2009.

2. The costs of the application for an extension of time be costs in the cause.

3. The parties have leave to make submissions electronically or otherwise on or before close of business on 25 February 2009 on whether the defendants should have leave to file and serve submissions in response to those of the plaintiffs for which leave is given in order 1.

1. At the conclusion of the hearing in this action, I gave directions permitting the parties to provide further material in written submissions. That timetable was not adhered to completely and the plaintiff, the Commonwealth of Australia, has sought an extension to 27 February 2009 within which to file and serve its final submissions. This was initially opposed by two of the defendants, other than the 27th defendant, who are active parties.

2. The directions I made permitted the defendants, other than the 27th defendant, to file any submission in relation to the counterclaim against them (despite Div 2.6.7 of the Court Procedures Rules 2006 (ACT) called, in these proceedings, the cross claim) on or before 7 November 2008.

3. I also gave them leave to file and serve any further submissions on any matter other than the issues in the counterclaim on or before 21 November 2008. The plaintiff was then given leave to reply to those submissions on or before 24 December 2008.

4. The proceedings are complex claims, based on various causes of action. The proceedings are described in more detail in Commonwealth of Australia v Davis Samuel Pty Ltd & Ors [No 3] [2008] ACTSC 76 at [2] to [7]. The hearing lasted for 40 hearing days.

5. The 1st, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 17th defendants and the third party (whom I will call “the active defendants”) filed their submissions in response to the counterclaim on 17 November 2008, some ten days late. No point was taken about this by any other party. Given that some of the active defendants were all probably fairly to be described as self-represented, despite the fact that one was a practising solicitor (who represented some of the other active defendants) and that some of the others had been actively involved in other litigation (including as self-represented litigants) it was perhaps not surprising that there was some slippage in the timetable.

6. The submissions of the active defendants other than the third party in matters other than the counterclaim were not filed and served by 21 November 2008. It is asserted on their behalf that an extension of time was sought and granted to 11 December 2008. There is no record of this on the court file. It is possible that it was informally granted. In the event, the submissions were received electronically on 23 December 2008, over a month after the date given on 3 October 2008 and twelve days after the claimed extension. No objection to their reception was taken by any other party.

7. In the email forwarding these submissions, Mr Cain, who submitted them, wrote:

We apologise sincerely for the delay in filling and serving the above document, due on 11 December 2008 and, by way of attachment, now file and serve the document.

We will attend to having the document printed, bound and sent to you by express post in the week commencing 19/1/09.

We reserve the right to include an Appendix [which will not amend the document in any way] with the bound copy.

8. The bound copy was filed on 9 February 2009. The Appendix was filed in fact on 5 February 2009.

9. The purported reservation of a right to include an appendix was, of course, not possible. A right cannot be reserved which does not exist. There is no right to file written submissions after a case has been heard; that is only available when a court grants leave: Carr & Anor v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; (1981) 147 CLR 246 at 258 per Mason J; Eastman v Director of Public Prosecutions of the Australian Capital Territory and Ors [2003] HCA 28; (2003) 214 CLR 318 at 329-30 per McHugh J, 368 per Heydon J; Re Application of the Chief Commissioner of Police (Victoria) [2005] HCA 18; (2005) 214 ALR 422 at 426-7.

10. Although the Appendix was said not to “amend the document [the submissions] in any way”, it was a submission on issues of relevance to the judgment that has to be delivered and which the plaintiff would potentially need, if it wished to do so, to respond to and challenge. It was directed at what was said to be an effort by the Commonwealth “on a number of occasions, to mislead the court ...[the] conduct appeared to influence the thinking of His Honour [sic]”. It then set out a number of examples, with transcript quotations and commentary. It was, thus, truly a part of the submissions of the active defendants and, in terms of the directions given by the court, a submission to which the plaintiff was entitled to respond.

11. Since the submissions (without the Appendix) were delivered the day before the plaintiff was due to respond under the original timetable, an extension of time was obviously required and could not seriously be opposed. I can also take judicial notice of the fact that this was at a time of national holidays and there was no extraordinary situation which required that time to be ignored. See Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 at 153-4; Brough v Perkins (1794) 6 Mod 81; 87 ER 837. I can also take judicial notice that this is after the end of term and that the courts sit less thereafter so that counsel often take the opportunity, along with the rest of the community to holiday: Estwick v Cooke [1790] EngR 280; (1729) 2 Ld Raym 1557; 92 ER 509; Capital Property Projects (ACT) Pty Limited v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9 at [13].

12. Thus, the plaintiff is entitled to a reasonable extension of time. Whilst, strictly, that extension is to be calculated from 5 February 2009, I consider that the fact that the plaintiff had received all but the Appendix and was able to commence preparation of its response means that it is not entitled to a lengthy period from that date.

13. The active defendants other than the third party required nearly twelve weeks to complete their submissions (not including the Appendix which was filed some six weeks later). It has to be taken into account that for part of that period, they were also preparing the submissions on the counterclaim. It is also relevant that, although they included a solicitor, they were not experienced and qualified professional litigation lawyers or advocates.

14. I have been unable to see any particular prejudice to the active defendants in granting to the plaintiff a reasonable extension of time within which to file its submissions in reply. The writing of a judgment will take some considerable time and is unlikely to be delayed to any significant extent by the extension of time granted the plaintiff.

15. Accordingly, I am prepared to allow the plaintiff until close of business on 27 February 2009 within which it may file any submissions it cares to make in response to those filed by the active defendants.

16. Ultimately, the active defendants did not make any specific submissions in opposition to the extension of time. They did, however, comment

... we are of the understanding that we remain with the right to file a response to the Commonwealth’s reply, if we consider it necessary, within a relatively short time frame.

17. It is not clear where that understanding comes from nor on what it is based. In the ordinary course of events, the progress of submissions is governed by r 1508 of the Court Procedures Rules 2006 (ACT). In this matter, where evidence was tendered in the case of the active defendants (and others) the plaintiff has the right to make the last address. Here, a more traditional approach was followed, with the plaintiff making the first address, the defendants then addressing and the plaintiff having a right of reply. This accords with the common law: Powell v Begg & Wendt & Co (1898) 9 QLJ 110.

18. This is not a case where the defendants were denied an opportunity to address the court at all as in Escobar v Spindaleri and Anor (1986) 7 NSWLR 51. The defendants wish to respond to a reply.

19. The effect of what is sought by the defendants is to overturn the ordinary rule. As McHugh J said in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at 93:

[71] It is a fundamental rule of the common law jury trial of a civil cause that, if counsel for the defendant does not call evidence, he or she has the last address. Statutes or rules of court may, of course, alter that fundamental rule of the common law. In New South Wales, Pt 34 r 6 of the Supreme Court Rules 1970 gives effect to the common law rule but gives the judge a discretion to alter the order of addresses. It is a discretion, however, that must not be used to negate the general rule. It should be exercised only when the justice of the case requires it.

20. Although this is not a jury trial, I consider that the same approach should be taken. It may be, however, that the interests of justice, of which I am not currently aware, may require a change of order. Accordingly, I will give the parties until close of business on 25 February 2009 to make submissions on whether the defendants should be able to reply to the submissions of the plaintiff in respect of which I have given them leave to file by 27 February 2009.

I certify that the preceding twenty (20)) numbered paragraphs are a true copy of the Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 23 February 2009

Counsel for the Plaintiff: Mr M Slattery QC and Mr J Hogan-Doran

Solicitor for the Plaintiff: Australian Government Solicitor

Counsel for the first, sixth, fifteenth

and twenty-first Defendants: Mr P Cain

Fourth Defendant Self represented

Fifth Defendant Self represented

Seventh Defendant: Self represented

Eighth Defendant: Self represented

Ninth Defendant: Self represented

Counsel for the twentieth Defendant

and Third Party: Mr A Endresz

Counsel for the twenty-seventh Defendant: Mr N Hutley QC and Mr J Giles

Solicitors for the twenty-seventh Defendant: Snedden Hall & Gallop

Date of hearing: No hearing; written submissions only

Date of judgment: 23 February 2009