Argos Pty Ltd v Corbell
[2012] ACTCA 45
•6 November 2012
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 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
REASONS FOR JUDGMENT
REFSHAUGE J:
This appeal has been listed to be heard in the Court of Appeal sittings to commence on 11 February 2013.
The appellants have requested that a change be made to the usual timetable for the filing and serving of the pre-appeal documents set out in r 5438 of the Court Procedures Rules 2006 (ACT), specifically the summaries of arguments (r 5439) though, sensibly, that should also apply to the list of authorities, legislation and texts (r 5440). It has been suggested, at least on behalf of the appellants, that a longer period than required by the rules would be desirable both for the parties and for the Court. This arises in part because the usual vacation in late December and January means that the timetable becomes quite tight just prior to the hearing of an appeal in that period.
Strictly speaking, that is not quite correct, since even were the appeal to be listed on the first day of the sittings, the time required for filing of the appellant’s submissions would be on 4 February 2013, the first day of the 2013 term. Of course, preparation of the submissions would have to occur before that.
That the court only deals with urgent matters until 4 February 2013 (see, for example, Notice to Practitioners dated 26 October 2010), does not mean that the work of the Court does not continue during this period and while that is a convenient time for practitioners and others to take vacation, that must be subject to the needs of orderly disposal of the court’s business.
Nevertheless, the appellants' proposal was attractive to the Court because difficulties have been experienced in previous Court of Appeal sittings. The present timetable, set out in r 5438, requires an appellant to file the documents five days before the date for which the hearing is set and the respondent two days before that date.
This has meant that when the parties do not comply with the rules, as regrettably happens from time to time and too often, the Court is then unable properly to prepare for the appeal. That can be particularly problematic for the additional judges who have to travel from interstate and whose preparation can be compromised significantly. The tight timetable also prevents the Court from taking remedial action.
Indeed, the Joint Rules Advisory Committee, established under s 11 of the Court Procedures Act 2004 (ACT), is considering amending r 5438 to increase the time before the hearing date of the appeal by which the documents are to be filed.
Rule 36.55 of the Federal Court Rules 2011 (Cth), provides that the appellants outline of submissions and chronology must be filed 20 business days before the hearing date of the appeal, and the respondent’s outline of submissions and chronology 15 business days before that date and then any submissions in reply by the appellant 10 business days before that date. That is the approach that is being considered.
That would, however, have some challenges for parties to appeals that commence in early February in each year, especially as the end of the year in December is often a very busy time.
Nevertheless, such problems can be overcome if the parties are properly organised for the appeal.
I note that the Appeal Books are expected to be filed shortly. I note also that on 17 October 2012 I gave directions that permitted some material that would otherwise be included in the Appeal Books to be omitted and other material to be filed electronically if the parties wish.
I have, accordingly, given careful consideration to the appropriate directions to be made to ensure the smooth preparation and conduct of the appeal.
As a result, I will direct as follows:
1. That under r 5438(1) of the Court Procedures Rules, 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.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 6 November 2012
Counsel for the Appellants: Ms A Menyhart
Solicitor for the Appellants: Bradley Allen Love
Counsel for the First, Fourth
and Fifth Respondents: Mr L Stawski
Solicitor for the First, Fourth
and Fifth Respondents: ACT Government Solicitor
Counsel for the Second
and Third Respondents: Ms R Pattison
Solicitor for the Second
and Third Respondents: King & Wood Mallesons
Date of hearing: 17 October 2012
Date of judgment: 6 November 2012
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