Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 (22 May 2009)

Last Updated: 25 May 2009

FEDERAL COURT OF AUSTRALIA

Singh v Secretary, Department of Employment and Workplace Relations

[2009] FCAFC 59

BANKRUPTCY – appeal – refusal of application for annulment of sequestration order – no error in reasoning of primary judge – dismissed

PRACTICE AND PROCEDURE – appeal – application to adduce further evidence on appeal – did not disclose fresh evidence – refused

PRACTICE AND PROCEDURE – letter and submissions sent to the Court after the hearing and without the Court’s leave – inappropriate to write to the Court and make submissions after the hearing without the Court’s leave


Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Bankruptcy Act 1966 (Cth) ss 43, 54(1), 109(1)(a), 153A, 153B
Federal Court of Australia Act 1976 (Cth) s 27

Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 applied
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 applied
Freeman v National Australia Bank Ltd [2003] FCAFC 200 applied
Jackson v Conway [2000] FCA 1530 applied
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 cited
Singh v Department of Family and Community Services [2004] FCA 1685; (2004) 142 FCR 232 cited
Singh v Secretary, Department of Employment and Workplace Relations (2006) 95 ALD 569 cited
Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174; (2007) 46 AAR 447 cited
Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1061 cited
Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1463 affirmed
Singh v Secretary, Department of Employment and Workplace Relations [2008] HCASL 224 cited
Singh v Secretary, Department of Family and Community Services (Centrelink) [2005] HCATrans 759 cited

MOHINDER SINGH v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
VID 857 of 2008

SPENDER, LANDER AND FLICK JJ
22 MAY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 857 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MOHINDER SINGH Appellant

AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGES:	SPENDER, LANDER AND FLICK JJ
DATE OF ORDER:	22 MAY 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 857 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MOHINDER SINGH Appellant

AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGES:	SPENDER, LANDER AND FLICK JJ
DATE:	22 MAY 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from orders made by a judge of this Court on 29 September 2008 whereby the appellant’s application for the annulment of a sequestration order made against his estate was dismissed and his further applications to set aside orders made by a judge of this Court (Weinberg J) and orders of the Full Court were also dismissed.

2 The appellant suffered an injury at work on 2 January 1991 which resulted in an ongoing medical condition. From December 1993 to October 1999 the appellant was paid a disability support pension and his wife received a disability support wife pension from Centrelink.

3 In 1999 the appellant’s employer’s insurer, Allianz Australia Workers Compensation (Victoria) Limited (Allianz) was ordered to pay the appellant arrears of weekly compensation for the period from 1 September 1992 to 20 October 1999. On 4 November 1999 Centrelink advised Allianz that it had a first charge on the sum of $88,633.34 in respect of payments of social security to 26 October 1999 made to the appellant and his wife. Allianz paid that amount to Centrelink out of the arrears of weekly compensation that it would have otherwise have paid to the appellant.

4 The appellant sought a review of Centrelink’s decision of 4 November 1999 in which he claimed to be entitled to the sum of $88,633.34, but the application was unsuccessful: Singh v Department of Family and Community Services [2004] FCA 1685; (2004) 142 FCR 232.

5 The appellant applied for special leave to appeal to the High Court which was refused: Singh v Secretary, Department of Family and Community Services (Centrelink) [2005] HCATrans 759.

6 On 19 December 2005 Centrelink decided that it had no jurisdiction to review the decision it made on 4 November 1999. The appellant appealed to the Social Security Appeals Tribunal which, on 22 March 2006, declined to review Centrelink’s decision. The appellant appealed to the Administrative Appeals Tribunal (the AAT).

7 On 3 July 2006 the AAT decided that the appellant’s application was "obviously untenable" and "utterly hopeless" and dismissed the application as frivolous and vexatious pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth). It also directed the appellant not make, without the leave of the AAT, any further application with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999.

8 The appellant appealed from that decision to this Court. On 23 October 2006 Weinberg J dismissed that appeal save that he varied the order made by the AAT to read:

The applicant must not without leave of the Tribunal make any application to the Tribunal with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999.

9 Justice Weinberg dismissed allegations of fraud made by the appellant as lacking substance and on the principle in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589: Singh v Secretary, Department of Employment and Workplace Relations (2006) 95 ALD 569.

10 The appellant appealed to the Full Court of this Court. On 9 February 2007 Sundberg J made orders that the appellant lodge with the Registrar of the Court or the solicitors for the Secretary of the Department of Employment and Workplace Relations the sum of $10,000 in respect of security for its costs of the appeal and that the appellant pay the Secretary’s costs of the application for security of costs.

11 The appellant complied with Sundberg J’s orders insofar as he paid into Court the sum of $10,000 as security for costs but he did not pay the Secretary’s costs of that application for security for costs.

12 On 22 November 2007 the appellant’s appeal to the Full Court against Weinberg J’s order was dismissed with costs: Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174; (2007) 46 AAR 447.

13 On 15 May 2008 the High Court dismissed the appellant’s application for special leave to appeal from the orders of the Full Court dismissing the appeal to that Court from Weinberg J: Singh v Secretary, Department of Employment and Workplace Relations [2008] HCASL 224.

14 In the meantime, on 14 September 2007, the respondent issued a bankruptcy notice claiming that the appellant was indebted to it in the sum of $36,066.20, which sum was made up of $11,196.50 being costs ordered in the Federal Magistrates Court in relation to an appeal to that Court from a decision of the AAT; $17,294 being costs ordered in three separate applications to this Court; and $7,575.70 being the costs of the applicant’s failed application for special leave to appeal to the High Court awarded on 9 September 2005.

15 The appellant did not comply with the bankruptcy notice and on 16 October 2007 the respondent issued a petition for a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) against the estate of the appellant relying on the act of bankruptcy of the appellant in failing to comply with the bankruptcy notice served on him on 20 September 2007.

16 On 28 February 2008 a sequestration order was made against the estate of the appellant.

17 On 10 June 2008 the appellant paid to the solicitors for the respondent the sum of $36,066.20 by bank cheque. The respondent’s solicitors in turn forwarded the cheque to the Official Trustee who presently retains that sum. On the same day the appellant filed a notice of motion in the proceeding which had been before Weinberg J seeking orders that: (a) the security for costs order made in the proceeding by Sundberg J on 9 February 2007 be discharged and that the Registrar release the sum of $10,000 which had been paid into Court by the applicant; and (b) the Full Court decision and the decision of Weinberg J at first instance be set aside. The appellant relied upon mistake and fraud.

18 On 11 July 2008 Middleton J dismissed that notice of motion and ordered the appellant to pay the respondent’s costs: Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1061.

19 Section 54(1) of the Bankruptcy Act obliges a bankrupt within 14 days after being notified of the bankruptcy to provide the Official Receiver with a statement of his or her affairs and furnish a copy of the statement to the Trustee. A number of requests have been made by the Insolvency and Trustee Services of Australia (ITSA) to the appellant for him to provide his Statement of Affairs but none has been provided.

20 On 13 June 2008 the appellant wrote to the Official Trustee asking to be advised whether there were any costs outstanding which he needed to pay but if there were no such costs sought a certificate of annulment.

21 On 16 June 2008 the appellant again wrote to the Official Trustee claiming that the payment by the appellant of the sum of $36,066.20 to the respondent’s solicitors on 10 June 2008 had the effect of annulling the bankruptcy, relying upon s 153A(1) of the Bankruptcy Act.

22 The Official Trustee engaged the Fraud Investigation Team of ITSA to carry out an inquiry into the appellant’s affairs in order to determine whether the matter ought to be referred to the Commonwealth Director of Public Prosecutions for prosecution.

23 On 30 July 2008 the appellant commenced the proceeding which was heard by the primary judge seeking the annulment of the sequestration order made on 28 February 2008. The appellant also filed a notice of motion seeking to join Allianz and Kevin Thomas Potter, but their role in any proceeding seeking an annulment of a sequestration order was not explained. Allianz was the workers compensation insurer on risk. Mr Potter is said in the notice of motion to be the appellant’s previous solicitor.

24 When the matter came before the primary judge the appellant had still not complied with s 54(1) of the Bankruptcy Act and the Official Trustee had therefore been unable to ascertain whether there were any liabilities other than liabilities to the respondent which might be provable in the appellant’s bankruptcy.

25 It was contended and accepted by the primary judge that the appellant was at the time of the hearing indebted to the respondent in respect of two costs orders made against him before 28 February 2008 (the date of the sequestration order) which totalled $14,995.35. Those costs orders would be provable in the appellant’s bankruptcy. The appellant was also indebted to the respondent in respect of the costs order made at the same time as the sequestration order. That costs order would be a priority payment in accordance with s 109(1)(a) of the Bankruptcy Act.

26 The appellant contended before the primary judge that he had paid the debt of $36,066.20 by way of bank cheque and received a receipt for that sum. He said he was entitled to a certificate of annulment of the sequestration order made on 28 February 2008. He contended in the alternative that he was not indebted to the respondent at the time the sequestration order was made.

27 Division 5 of Part VII of the Bankruptcy Act provides for the annulment of a person’s bankruptcy. Section 153A addresses an annulment where the trustee is satisfied that the bankrupt’s debts have been paid in full. The section provides that by force of the section itself if all of the bankrupt’s debts have been paid in full the bankruptcy is annulled on the date on which the last such payment was made.

28 Section 153B addresses annulment by the Court and relevantly provides that if the Court is satisfied that a sequestration order ought not to have been made the Court may make an order annulling the bankruptcy.

29 The primary judge addressed the Court’s power under s 153B(1) first. He found that there were no grounds upon which he could be satisfied that the sequestration order made on 28 February 2008 ought not to have been made. The bankruptcy notice, the petition and the documents accompanying the petition were in order. The debts had been properly proved as being debts which related to judgment and orders of various courts in relation to costs, none of which had been set aside or reversed by any appellate court. His Honour found that there was no basis upon which he could review or set aside or otherwise interfere with any of the judgments or orders which resulted in the orders for costs which formed the subject of the bankruptcy notice.

30 The primary judge was also of the opinion that the appellant’s application pursuant to s 153A of the Bankruptcy Act had to fail. Section 153A does not empower the Court to make an order for annulment. The section depends for its operation upon the satisfaction of the trustee that the applicant’s debts have been paid in full. If the Official Trustee is so satisfied, then the bankruptcy is annulled by force of the section itself. There is no need to obtain an order from the Court. In any event, the primary judge found that, although the appellant had paid the sum of $36,066.20 on 10 June 2008, there was evidence of other debts which were due and outstanding to the respondent and, further, there was evidence from the Official Trustee that he was not satisfied that all of the appellant’s debts had been paid.

31 The primary judge rejected the orders sought in the notice of motion for the joinder of Allianz and Mr Potter. He said at [36]:

There is no claim that can be made against them, or either of them, which bears upon whether the applicant’s bankruptcy should be annulled, nor is there any other basis upon which they can be joined in this proceeding. Insofar as they may have featured in the background leading up to the series of litigation to which I have referred, that provides no basis for their joinder in this proceeding.

32 The appellant has raised three grounds of appeal:

1. The sequestration order obtained by the respondent on the estate of the applicant from the Federal Magistrate Court (sic) on 28 February 2008 is defective and groundless on the basis his Honour Justice Goldberg made (sic) error of law to follow the history of the litigation concerning the court order of costs on which the sequestration order stands. 2. The orders of Justice Weinberg and Full Federal Court in question were again obtained by fraud by the respondent, standing upon the fraudulent decisions and order of the Courts given in the previous proceedings on the basis of the Workcare Appeals Board decisions dated 11 November 1991 and 30 October 1992 and section 17(4A) overridden section 17(2B) of the Social Security Act 1999. 3. The notice of motion filed on 25 August 2008 was dismissed and was not considered in accordance with the law therefore the decision was made with error of law.

33 In his written submissions filed in support of his appeal the appellant purported to identify the issues on appeal. He said the issues were:

(1) Whether the Appellant was insolvent when the Respondent filed the petition for Bankruptcy of the Appellant and obtained sequestration order against the estate of the Appellant from the Federal Magistrates Court on 28 February 2008 to recover the cost of the five proceedings pursuant to the orders for costs which where obtained (sic) by fraud in the previous proceedings, on the basis of the inconsistency of facts in the decision of the Respondent dated 4 November 1999 and the facts of County Court ruling dated 20 October 1999. (2) Whether the earlier all (sic) the decisions of the Tribunals and order of the courts for cost in this litigation are groundless and unjust to the appellant due to the inconsistency between the facts of the County Court ruling dated 20 October 1999 and the respondent’s decision dated 4 November 1999. (3) Whether the Appellant’s motion filed on 25 August 2008 seeking addition of the insurer and my previous solicitor Mr. Kevin Thomas Potter as parties to this proceedings should allowed (sic). (4) Whether the Appellant is entitled to the damages.

34 We reject the appellant’s formulation of the issues. The final orders sought by the appellant in his application which was before the primary judge were:

1. Annulment by Court, of a sequestration order made against the estate of Mohinder Singh by registrar (sic) Burns on 28 February 2008, pursuant to the provision of section 153B of the Bankruptcy Act 1966.

2. Annulment (on payment of debts) of a sequestration order made against the estate of Mohinder Singh by Registrar Burns on 28 February 2008, pursuant to the provision of section 153A of the Bankruptcy Act 1966.

35 He also sought interim orders:

1. That the Honorable (sic) Court set aside the orders of Weinberg J in VID 843/2006 and send the matter back to the respondent for recalculation of the compensation affected payments. The setting aside of the erroneous orders of Weinberg J will ultimately result in the consequent setting aside of the orders of the Full Federal Court and special leave to appeal to the High Court of Australia.

2. That the Respondent reimburse the $10,000 + $36,066.22 + $4,180.00 paid by myself in respect to the orders of bankruptcy to the Respondent.

3. Discretion of the Court for an order of damages.

36 The interim orders were not and could not have been pursued. Paragraph 1 of the interim orders could not have been made. The proceeding before Weinberg J has been finally disposed of by Weinberg J’s order, the Full Court order dismissing the appeal from Weinberg J and the High Court’s refusal of the appellant’s application for special leave to appeal. Moreover, a similar application had been made to Middleton J and dismissed on 11 July 2008.

37 The second order could not have been made as an interim order. In any event, the appellant relied upon the payment of $36,066.22 for the final order sought for the annulment of the sequestration order.

38 The $10,000 sought by the appellant was held by the Court pursuant to the order made by Sundberg J on 9 February 2008. The sum of $4,180 was for costs ordered to be paid by the Full Court on 8 November 2001. Indeed, as the evidence shows, $630 is still outstanding for costs.

39 The third order also could not have been made.

40 The issue before the primary judge and on appeal is whether the appellant was entitled to an annulment of the sequestration order pursuant to either ss 153A or 153B of the Bankruptcy Act.

41 In his written submissions the appellant has provided the Court with a lengthy history of his workers compensation proceedings and the decision whereby Centrelink sought repayment from Allianz of the benefits paid to the appellant and his wife. He also gave a history of the reviews which were sought and the appeals to this Court against those reviews. He has made submissions that the benefits paid by Centrelink were not recoverable from Allianz. He has asserted that the respondent fraudulently misrepresented the facts to the County Court which made the orders under the workers compensation legislation.

42 He asserts that Allianz and his former solicitor and the respondent fraudulently agreed that the benefits should be repaid by Allianz to the respondent. He asserts that the primary judge was wrong to rely upon the High Court’s reasons in Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174; 46 AAR 447. The decision to which he has referred is in fact a decision of the Full Court of this Court dismissing his appeal from Weinberg J and confirming the Administrative Appeal Tribunal’s decision that the application to it was vexatious. The decision to which he meant to refer was Singh v Secretary, Department of Employment and Workplace Relations [2008] HCASL 224. All of the adverse ruling decisions and judgments are wrongly predicated, he contended, upon the order that Allianz repay the benefits paid by Centrelink.

43 There is no evidence of any kind that would justify the complaint of fraud which was made and remade in the written submissions.

44 The appellant’s contentions cannot be accepted because they raise issues not raised and not capable of being raised before the primary judge. The issue before the primary judge was as we have stated it. The primary judge had to determine that issue on the uncontroverted evidence that the orders for costs upon which the sequestration order was made remained in force at the time the sequestration order was made and any relevant facts as at the date the sequestration order was made, even if those facts were not known at the time when the order was made.

45 At the hearing of the appeal the appellant sought to adduce fresh evidence. Section 27 of the Federal Court of Australia Act 1976 (Cth) empowers this Court to receive "further evidence" on an appeal. The appellant filed an affidavit in which he claimed that the respondent was aware that the order made in the County Court was wrongly made but had notwithstanding received the money from the insurer.

46 The evidence sought to be adduced was not further evidence at all. Nor was it fresh evidence. The appellant has raised these issues in previous proceedings before the Administrative Appeals Tribunal, this Court and the High Court. Indeed, he has raised this claim in this Court before Weinberg J, the Full Court and Middleton J.

47 Moreover, if this evidence was relevant it should have been adduced before the primary judge. This evidence, if admitted on appeal, would raise a ground of appeal on an issue not raised before the primary judge. In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48 In Freeman v National Australia Bank Ltd [2003] FCAFC 200, the Full Court said at [66]:

So much having been said it is necessary, in determining an application for the receipt of further evidence, to have regard to the circumstance that the application is made in the appellate jurisdiction of the Court. Generally speaking, it is in the exercise of the Court’s original jurisdiction at the trial of an action or other proceeding, that all relevant evidence will be adduced. Appeals brought in the Court from the decision of trial judges or federal magistrates are appeals de novo. But the appellate jurisdiction of the Court is not intended to provide an opportunity for a retrial of issues tried at first instance on further evidence. In the joint judgment in CDJ [CDJ v VAJ (1998) 197 CLR 132] it was said at 202:

"... it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction."

Ordinarily the trial of an action will provide the opportunity for all relevant evidence to be adduced and findings of fact made upon it.

49 For both of those reasons, we declined to allow him to raise the matter on appeal and refused the tender of his affidavit.

50 We turn to the grounds of appeal.

Ground 1

51 The primary judge set out the history of the matter leading up to the sequestration order made on 28 February 2008 to show how it was that the appellant had become indebted to the respondent and the appellant’s failure to pay the costs orders made against him by the various courts.

52 There was no error in his Honour proceeding upon that basis and, indeed, it was right and proper to do so. His Honour was called upon to decide whether there was any ground upon which it could be said that the sequestration order ought not to have been made: s 153B. In those circumstances, he needed to be satisfied that the appellant had committed an act of bankruptcy. His Honour therefore needed to be satisfied that a bankruptcy notice had been given and not complied with. He also had to be satisfied that a petition had been presented and that the evidence which accompanied the petition supported the making of the order. It was necessary therefore to trace the history of the matter to reach the conclusion which his Honour did.

53 There was no error of law in his Honour proceeding in the way in which he did. Indeed, it was the appropriate way to proceed.

Ground 2

54 The appellant sought to have the orders made by Weinberg J and the orders made by the Full Court of the Federal Court set aside for the reasons in the ground of appeal.

55 Justice Goldberg had no jurisdiction to set aside the orders made by Weinberg J which had been confirmed by the Full Court of the Federal Court. If the Full Court of the Federal Court’s orders needed to be set aside, it could only have been done by the High Court. The appellant’s application for leave to appeal to the High Court had already been dismissed. The second ground fails.

56 The appellants complaint of fraud in this ground is baseless and, like his other complaints of fraud, should not have been made.

Ground 3

57 It is not easy to understand what the substance of the complaint is in ground 3. The notice of motion sought to join as additional parties Allianz and Mr Potter. The primary judge found that no claim had been made against them which impacted upon the appellant’s claim that his bankruptcy should be annulled. Nor was there any other basis for Allianz and Mr Potter to be joined. In our opinion, the primary judge was plainly right.

58 The appellant had brought a proceeding seeking an order for the annulment of his bankruptcy. Relevantly, an annulment of his bankruptcy could only occur by operation of s 153A itself or by an order being made under s 153B of the Bankruptcy Act.

59 His Honour rightly found, in our opinion, that there was no need for the appellant to make an application to the Court for an order under s 153A. If he had satisfied the conditions precedent in the subsection, he was entitled to an annulment by force of the section.

60 However, his Honour noted, incidentally, that there was evidence that not all of the bankrupt’s debts had been paid. He also noted that the Official Trustee was not satisfied of the matters necessary to cause s 153A to operate.

61 Insofar as the appellant relied upon s 153B, for the reasons already given, there can be no criticism of his Honour’s approach and conclusions.

Subsequent Events

62 Subsequent to the hearing, the respondent’s solicitors forwarded a letter to the Court, a copy of which was copied to the appellant. In that letter the solicitors said that the respondent wished to make two corrections.

63 Concerning the first correction, the solicitors wrote:

The Appeal Book and the Respondent’s Submissions show the Respondent as the "Secretary, Department of Education, Employment and Workplace Relations". On the other hand, the order of Justice Goldberg is different and shows the name as "Secretary, Department of Employment and Work Relations (Appeal Book, Part A, page 13). The Notice of Appeal gives the name of the Respondent as "Secretary, Department of Education, Employment and Work Relations" (Appeal Book, Part A, page 30). The correct name of the Respondent is "Secretary, Department of Employment and Workplace Relations". We say this as the proceeding was commenced in that name and the Court has not made an order changing the name.

64 The second correction sought to be made by the respondent was to correct a statement made by a witness in an affidavit filed in the proceeding.

65 On the same day the appellant filed a document entitled "The Appellant’s Outline of Submissions" in which he restated the written submissions made before the hearing of the appeal and the oral submissions made at the hearing. It is likely that the respondent’s solicitors’ letter provoked the appellant to file the further submissions.

66 In Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246, Mason J, as he then was, said at 257-8:

After argument had concluded in this Court lengthy written submissions dealing with issues not hitherto raised and a further affidavit were filed. The affidavit asserts that the mortgages were extended but no attempt is made to specify the extended expiry dates or the facts giving rise to the alleged extension. 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.

67 In Jackson v Conway [2000] FCA 1530, Branson J said, at [29]:

In this case ... 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.

68 Consistent with those authorities, the respondent’s solicitors’ letter should not have been sent without leave of the Court having first been obtained. That is especially so when, as in this case, the appellant is unrepresented.

69 The appellant’s further submissions, even though they do not add anything to what has already been said, should not have been filed without leave being granted.

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.

72 We propose to ignore the appellant’s further submissions for no other reason than they add nothing to what has already been written and said.

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.

76 The appellant brought his application for annulment against the Secretary, Department of Employment and Workplace Relations. The respondent filed a "Notice Stating Grounds of Opposition to the Application". The first respondent, as described in the heading of that notice, was "Secretary, Department of Employment and Workplace Relations". The notice commenced:

The Secretary, Department of Education, Employment and Workplace Relations (described above as the Secretary, Department of Employment and Workplace Relations), the petitioning creditor, intends to oppose the application ...

77 No application was made to the primary judge to amend the respondent’s description. The sealed order made by the primary judge described the respondent in the same way as the application. In the notice of appeal to this Court the appellant has described the respondent as "Secretary, Department of Education, Employment and Work Relations". The respondent’s notice of appearance in the appeal describes the respondent, in the title and in the body, as "Secretary, Department of Education, Employment and Workplace Relations".

78 The respondent’s description in the appeal should be the same as his description in the proceeding until such time as an order is made altering the description.

79 It is likely, we think, that the respondent’s correct description is Secretary, Department of Education, Employment and Workplace Relations.

80 On delivery of these reasons we will hear any application by the respondent to amend the proceeding and the appeal to reflect his correct description.

81 As to the respondent’s second correction, a party cannot correct a statement of fact contained in a witness’ affidavit by writing a letter to the Court purporting to do so.

82 In our opinion, the appeal must be dismissed. The appellant must pay the respondent’s costs.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Lander and Flick.

Associate:

Dated: 22 May 2009

	The Appellant appeared in person
Counsel for the Respondent:	Mr G K Moore
Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	18 May 2009
Date of Judgment:	22 May 2009