Practice of written submissions after the hearing

Sherman v Condon [2014] QDC 189




[21] Before concluding, another issue should be noted. In this matter and after the hearing of the application and without seeking or being granted any leave to do so, counsel for the applicants forwarded written supplementary submissions to Court[30].


[22] Whilst Practice Direction 2 of 2008 deals with the filing of written submissions in proceedings, that relates to submissions presented at (or prior to and for the purpose of) the hearing. The misconception that further material, such as written submissions, may be simply forwarded to a court, subsequently and at the will of a party, has been recognised in the High Court. In Eastman v Director of Public Prosecutions (ACT)[31], McHugh J observed:


“[29] …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 Corporation of Australia Ltd [No 1][32], 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’”


Also and in the matter of In the matter of an application by the Chief Commissioner of Police (Vic)[33], Kirby J observed:


“[54] Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material to court registries without permission of the court, publicly signified, is a derogation from the principle of the open administration of justice. It should not occur. If new points of importance arise in the case whilst a matter stands for judgment, the proper course (unless statute or court rules permit otherwise) is for the proceeding to be relisted so that an application to enlarge the record can be made and determined in open court.”


[23] Notwithstanding those observations have been made in the context of the exercise of appellate jurisdiction, the essential principles are equally applicable to proceedings at first instance. However and in distinction to the situation in appellate proceedings generally, it may be considered that the granting of leave to supplement, clarify or enlarge upon submissions made in the hearing of proceedings at first instance, may be more readily achieved and more common, in practice.


[24] Although this communication came with an express request seeking leave to read and file the supplementary submissions, an essential problem in what occurred here is that the supplementary submissions were, apparently, forwarded without any reference to or knowledge of the respondent and it makes no difference that the respondent is not legally represented and it should not be simply assumed that any right for her to be heard in respect of any such further submissions, would be unproductive or a waste of time or that such a litigant should be treated any differently in relation to that right.


[25] It may also be noted that the principles to which reference has been made, are also recognised in the Barristers’ Conduct Rules[34], which whilst recognising how an obligation may exceptionally arise, to bring any overlooked and critical authority or legislative provisions, to the attention of a court which has reserved judgment or decision:

(a) expressly, by rule 33, encapsulates the requirements of this being done with the knowledge and if necessary, consent of an opponent or on relisting of the case; and

(b) also expresses, in rule 53 and under the heading of “Duty to opponent”, a prohibition on unsolicited, unilateral communications with a court “concerning any matter of substance in connection with current proceedings” and outside of “an ex parte application or a hearing of which an opponent has had proper notice”[35].


[26] Accordingly and in this context, I have perused the supplementary submissions, particularly having regard to the inclination as to the disposition of the matter, as has now been explained in these reasons and lest they draw attention to some important matter that might otherwise be overlooked and therefore warranted the relisting of the matter, on notice to the respondent. Having done so, I was satisfied that there was no need for this. Although there was reference to additional cases, the supplementary submissions only had the effect of seeking to reinforce the submissions that had been made at the hearing.



David Cormack – Brisbane Barrister & Mediator

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