Argos Pty Ltd v Corbell - [2012] ACTCA 45

ARGOS PTY LTD, CAVO PTY LTD ATF DEMOS FAMILY TRUST T/AS IGA KALEEN SUPERMARKET, KOUMVARI PTY LTD ATF VIZADIS FAMILY TRUST T/AS IGA EVATT SUPERMARKET AND COMBINED RESIDENTS ACTION ASSOCIATION INCORPORATED V SIMON CORBELL, MINISTER FOR THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT, AMC PROJECTS PTY LTD, NIKIAS NOMINEES PTY LTD, AUSTRALIAN CAPITAL TERRITORY PLANNING AND LAND AUTHORITY AND AUSTRALIAN CAPITAL TERRITORY EXECUTIVE

[2012] ACTCA 45 (6 November 2012)

PROCEDURE – courts and judges generally – appeals to the Court of Appeal – summaries of argument – timetable for filing.

Court Procedures Act 2004 (ACT), s 11
Court Procedures Rules 2006 (ACT), rr 5438, 5439, 5440
Federal Court Rules 2011 (Cth), r 36.55

Notice to Practitioners, 26 October 2010

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 31 - 2012
No. SC 665 of 2011

Judges: Refshauge ACJ
Court of Appeal of the Australian Capital Territory
Date: 6 November 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 31 - 2012
)          No. SC 665 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ARGOS PTY LIMITED
First Appellant

CAVO PTY LTD ATF DEMOS FAMILY TRUST T/AS IGA KALEEN SUPERMARKET

Second Appellant

KOUMVARI PTY LTD ATF VIZADIS FAMILY TRUST T/AS IGA EVATT SUPERMARKET

Third Appellant

COMBINED RESIDENTS ACTION ASSOCIATION INCORPORATED

Fourth Appellant

AND:SIMON CORBELL, MINISTER FOR THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENTS
First Respondent

AMC PROJECTS PTY LTD

Second Respondent

NIKIAS NOMINEES PTY LTD

Third Respondent

AUSTRALIAN CAPITAL TERRITORY PLANNING AND LAND AUTHORITY

Fourth Respondent

AUSTRALIAN CAPITAL TERRITORY EXECUTIVE

Fifth Respondent

ORDER

Judges:  Refshauge ACJ
Date:  6 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

That under r 5438(1) of the Court Procedures Rules 2006 (ACT), it is appropriate to vary the times within which the parties are to file and serve the copies of summaries of arguments in accordance with r 5439 and the list of authorities, legislation and texts in accordance with r 5440.

That the appellants file and serve their summaries of argument and lists of authorities, legislation and texts on or before 3 December 2012.

That the respondents file and serve their summaries of argument and lists of authorities, legislation and texts on or before 24 December 2012.

That the appellants file and serve any written summary of arguments in reply on or before 11 February 2013.

IN THE SUPREME COURT OF THE     )          No. ACTCA 31 - 2012
)          No. SC of
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ARGOS PTY LIMITED
First Appellant

CAVO PTY LTD ATF DEMOS FAMILY TRUST T/AS IGA KALEEN SUPERMARKET

Second Appellant

KOUMVARI PTY LTD ATF VIZADIS FAMILY TRUST T/AS IGA EVATT SUPERMARKET

Third Appellant

COMBINED RESIDENTS ACTION ASSOCIATION INCORPORATED

Fourth Appellant

AND:SIMON CORBELL, MINISTER FOR THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENTS
First Respondent

AMC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] ACTCA 45
Decision Date: 6 November 2012

CaseChat Overview and Summary

Argos Pty Ltd (appellants) sought to vary the times stipulated by the Court Procedures Rules 2006 (ACT) for filing and serving summaries of argument and lists of authorities. The respondents opposed this application. The matter came before the Court of Appeal of the Supreme Court of the Australian Capital Territory.

The central legal issue before the Court of Appeal was whether it was appropriate, pursuant to rule 5438(1) of the Court Procedures Rules 2006 (ACT), to grant an extension of time for the parties to comply with the filing and service requirements for their respective summaries of argument and lists of authorities, as mandated by rules 5439 and 5440.

The Court considered the application and determined that varying the prescribed times was appropriate. It reasoned that such a variation would facilitate the orderly and efficient conduct of the appeal process. Consequently, the Court made orders that the appellants were to file and serve their summaries of argument and lists of authorities by 3 December 2012, and the respondents were to do so by 24 December 2012. Further, the appellants were granted leave to file and serve any written summary of arguments in reply by 11 February 2013.

Orders

Orders of the court

1. That under r 5438(1) of the Court Procedures Rules 2006 (ACT), it is appropriate to vary the times within which the parties are to file and serve the copies of summaries of arguments in accordance with r 5439 and the list of authorities, legislation and texts in accordance with r 5440.

2. That the appellants file and serve their summaries of argument and lists of authorities, legislation and texts on or before 3 December 2012.

3. That the respondents file and serve their summaries of argument and lists of authorities, legislation and texts on or before 24 December 2012.

4. That the appellants file and serve any written summary of arguments in reply on or before 11 February 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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