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Victorian Court of Appeal reiterates deprecation of unilateral communication with the Court after hearing by the filing of ‘supplementary submissions’

August 14th, 2012 · No Comments

Frugtniet v Law Institute of Victoria [2012] VSCA 178 is the latest in the saga of a man with a Bachelor of Laws and a Master of Laws who has twice applied unsuccessfully for admission to the profession because of a failure to disclose his criminal convictions.  He had a degree of success in an appeal from a decision of the County Court.  But he became dissatisfied with his counsel after the hearing of the appeal and lodged an 18 page ‘Further Submission’ without leave, and without seeking leave.  The Court paid no attention to them and determined the appeal without further notice, saying the time for submissions is at the hearing.  One comes across this issue frequently, and you are probably sick of me banging on about it, but the other day I saw a litigant who should have known better just tack on to its submissions (which it had leave to file) a statutory declaration by way of supplementation of the evidence, many days after the end of the trial, and noting in the submissions that if the Tribunal was likely to find the evidence determinative, then it would like to make an application for leave to tender the hearsay into evidence.  Here is how the Court of Appeal fulminated unanimously in Mr Frugtniet’s case:

‘Postscript:  Further written submissions

  1. On 6 August 2012, a week after the hearing of the appeal and after we had prepared the reasons which are set out above, the appellant sent an email to the Registry in which he stated that he had withdrawn his instructions to the senior counsel and solicitors who had represented him on the appeal, and enclosing 18 typed pages of ‘Further Submissions’ said to be directed to:

    … the grounds of appeal and by implication certain grounds of appeal that were inadvertently abandoned by Counsel on the premise that the jurisdictional facts argued if upheld would not necessitate the court’s consideration of other grounds which I accept, but I am unable to accede to in the event that such jurisdictional facts were not upheld.

  2. We have not had regard to these ‘further submissions’.  They should not have been forwarded to the Registry.  Neither the Rules of Court nor the applicable Practice Statements gave any authority for them to be forwarded without leave, and the court has not been asked to give or given leave for them to be filed.  Moreover, if leave had been sought, we would have refused it, because, if we were to give leave, we would then have to give leave to the respondents to file replies, with consequent delay in the business of the court.
  3. As has been said repeatedly in the High Court[19] and in this court,[20] the idea that parties may, without leave, file supplementary written submissions after the conclusion of oral argument is misconceived.  The time and place to present argument, whether wholly oral or as supplemented by written submissions, is the hearing of the appeal.  Once the hearing of an appeal has concluded it is only in very exceptional circumstances, if at all, that the court will later give leave to a party to supplement submissions.  Certainly, if a new point arises at the hearing of an appeal, the court may give leave to the parties to file further written submissions within a short period of the hearing.  But parties to an appeal must understand that they have no legal right to continue putting in submissions to the court after the hearing of an appeal; and ordinarily, once a hearing has concluded, the workload of the court and the delay in the court’s business that would be associated with a fresh round of submissions make it impossible for the court to give leave to file further submissions.
  4. It appears that the practice in the Federal Court may be different[21] but, in this court, as in the High Court, as McHugh J said in Eastman v Director of Public Prosecutions (ACT):[22]

    Efficiency requires that the despatch of the court’s business not be delayed by further submissions reflecting the afterthoughts of a party or — as perhaps is the case in this appeal — some dissatisfaction with the arguments of the party’s counsel.

[19]         Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246, 258 (Mason J).

[20]         R v Zhanu Yu Zhong (2003) 139 A Crim R 220, 221 [2]–[4];  R v Theophanous (2003) 141 A Crim R 216, 286 [204].

[21]         Jackson v Conway [2000] FCA 1530, [29] (Branson J);  Spalla v St George Motor Finance Ltd (No 3) [2004] FCA 554, [32] (Ryan J).

[22]         (2003) 214 CLR 318, 330 [12].

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Tags: Ethics · litigation ethics