FEATURE ARTICLE -
Issue 96: June 2024, Professional Conduct and Practice
“Breach of Counsel’s Professional Responsibility” by Delivering Submissions After Hearing or Beyond Leave Granted Upon Hearing
In Madsen v Darmali (No 3) [2024] NSWSC 582 (17 May 2024), Rees J addressed the circumstance in which a party to litigation, following an oral hearing, delivered further submissions for which leave was not given. The issue is not one of mere procedure, but rather goes to the professional responsibilities of the barrister engaged who transgresses the leave granted. Rees J wrote:
[1] The application concerns the Court’s management of proceedings when parties serve submissions which go beyond the Court’s leave to provide further submissions after a hearing.
[2] The defendants seek to vary a costs order made in their favour. The plaintiff was ordered to pay the defendants’ costs on an indemnity basis, payable forthwith, save for the defendants’ costs of submissions served after the hearing ‘in reply’ but beyond the bounds of the leave granted by the Court. The defendants later garnered the plaintiff’s consent to pay the costs of the submissions served without leave.
[3] The application is made under various heads of power but, specifically, r 36.15(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provides that an order may be set aside if the parties to the proceedings consent. The issue is whether the Court’s discretion should be exercised in the manner sought. Before turning to the facts, it is timely to repeat some fundamental and uncontroversial propositions.
Submissions without leave
[4] The parties have the opportunity to put their case at the hearing; only in “very exceptional circumstances, if at all” will the Court give leave to supplement submissions once the hearing has concluded: Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318, 330 at [29] (per McHugh J). Proceeding otherwise is not possible given the Court’s workload: “Efficiency requires that the despatch of the Court’s business not be delayed by further submissions reflecting the afterthoughts of a party or … some dissatisfaction with the arguments of the party’s counsel”: Eastman at 330, [31].
[5] The Court may (and generally will) decline to engage with submissions sent without leave after the conclusion of a hearing: Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at [249] (per Leeming JA) (appealed but on a different point); Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [61] (per Allsop P, Giles JA and Tobias AJA); Armet v Browne [2024] WASCA 44 at [49] –[50] (per Mitchell, Vaughan and Hall JJA). Likewise, submissions which go beyond the bounds of the leave granted will be ignored: NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90, 142 at [192] (per McHugh ACJ, Gummow, Callinan and Heydon JJ); Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, 388 at [111] (per Heydon, Crennan and Bell JJ).
[6] The High Court has “deprecated in strong terms” litigants who submit submissions after the conclusion of a hearing, either without leave or beyond the leave granted, observing that this practice is “misconceived”, “unsatisfactory” and “impermissible”: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 258 (per Mason J); NT Power Generation at 159, [192]; Bale v Mills at [57] . Nor does it matter if the parties agree among themselves to put on further submissions; the parties have no right to place further material before the Court after the hearing has concluded, absent leave: “… it is wrong. It undermines and derogates from the principle of the open administration of justice”: Bale v Mills at [59] .
[7] Making submissions that go beyond the scope of any leave granted is a breach of counsel’s professional responsibilities: Bull v Lee (No 2) [2009] NSWCA 362 at [9] (per Allsop P, Campbell and Young JJA). The practice also “has the capacity to cause waste of the court’s time, and both waste of time and expense for counsel’s opponent in deciding what to do about the submissions that have been made without leave”: Bull v Lee at [9] .
[8] This case illustrates why these principles are important. Indeed, the fact that I did not adhere to these principles more strictly had the consequence that the plaintiff’s legal representatives, and my chambers, wasted time and resources in deciding what to do about the submissions that had been made without leave, by exploring whether the plaintiff could nonetheless meet the submissions. The service of such submissions also places the Court in an invidious position. On the one hand, an assessment needs to be made as to whether the submissions are, in fact, outside the terms of the leave granted. On the other hand, it is inappropriate for the Court to have regard to the submissions if, on examination, the submissions are without leave, as doing so infringes the right of the parties on the receiving end of those submissions to also be heard.
Reasonable opportunity to be heard
[9] The defendants sought to explain their actions on the basis that they were denied procedural fairness at the hearing, as their counsel only got through one-third of what he wanted to say; “It would be a dark day … for case management” if the defendants were not permitted to rely on their further submissions given the seriousness of the subject matter.
[10] It is a fundamental principle of our system of justice that the courts are obliged to give the parties a reasonable opportunity to be heard; the content of this obligation varies according to the circumstances of the particular case, where procedural fairness is an essentially practical concept: HT v R (2019) 269 CLR 403 at 416–7 , [17]–[18] (per Kiefel CJ, Bell and Keane JJ). As Lindsay J observed in C v W [2015] NSWSC 1774 , “Any “right to be heard” (assuming that the language of entitlement is apt) is qualified by a consideration of what is “reasonably practical”, and limited to a “reasonable opportunity” to be heard”: at [105]. For example, in a busy list “the hearing time allocated to each matter does not allow for a leisurely pace, nor detailed engagement between the bench and the parties”: Jakaj v Kinnane [2019] ACTSC 71at [44] McWilliam AsJ (as her Honour then was). Sometimes, of course, “a judge, conscious that he is about to make a decision in accordance with that sought by a party will, particularly in a busy list, not invite address by that party”: R v Tocknell (Court of Criminal Appeal (NSW), 28 May 1998, Hulme J, unrep) at 7.
[11] As Murray Gleeson also observed extra-curially in “The Judicial Method: Essentials and Inessentials” (2010) 9(4) The Judicial Review 377, 381: (emphasis added)
The High Court of Australia strictly limits the time allowed for oral argument in applications for special leave to appeal. In some cases it permits no oral argument at all. The High Court does not have the resources to allow … applications to be presented with unlimited oral argument. It rations its time. … giving unlimited time for [argument] is not an essential part of the system . … [C]ourts … need to reconcile efficient deployment of scarce judicial time with the requirements of a fair hearing.
[12] In Isicob Pty Ltd v Baulderstone Hornibrook (Qld) Pty Ltd (in liq) (2001) 17 BCL 198; [2001] QSC 064 , White J noted, “It is far from unusual to confine submissions in a court to a limited period and is not thought to constitute a breach of the principles of procedural fairness that that should be so”: at [83]. The same has been said in respect of directions concerning the filing of written submissions with page limits. In Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Quirk (2023) 414 ALR 516 , Colvin J noted that such limits “should be scrupulously observed. If it is considered that there would be unfairness if a party was confined to the page limit then application can be made but parties should not take matters into their own hands by ignoring such limits or pursuing stratagems to frustrate their purpose”: at [441].
[13] Nor is the Court required to allot identical time to opposing counsel: Zan & Wen (No 2) [2023] FedCFamC1A 130at [33] (per Austin, Tree and Christie JJ). Nor does a party have the right to make repeated submissions: Owners — Strata Plan No 74,442 v Harrison [2023] NSWCATAP 144 at [62] . Nor is the Court obliged to permit the hearing time to be absorbed by the exposition of legal principles with which the Court is well-familiar.
…
(emphasis added)
Decision available here.
