Casella v Hewitt

[2008] WASCA 13 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	CASELLA -v- HEWITT [2008] WASCA 13 (S)

CORAM : McLURE P

BUSS JA

EM HEENAN AJA

HEARD	:	12 OCTOBER 2007
DELIVERED	:	12 FEBRUARY 2008
SUPPLEMENTARY
DECISION	:	10 JANUARY 2011
FILE NO/S	:	CACV 151 of 2006

BETWEEN : DOMENIC CASELLA

Appellant

AND

ANTHONY JOHN HEWITT
LANA JOYCE HEWITT

First Respondents

RONALD PETER TOLEDO
KAREN TOLEDO

Second Respondents

TERENCE STEPHEN DUCKWORTH
ROCHELLE LOUISE DUCKWORTH as trustees for
TR & G SUPERANNUATION FUND
Third Respondents

PETER GARDINER DARYL THOMSON Fourth Respondents

[2008] WASCA 13 (S)

GRAHAM DEWAR
COLLEEN VAN DIJKEN
Fifth Respondents

JERVIS ATKINSON PAIGE ATKINSON Sixth Respondents

LISA FRAYNE JARMAN

Seventh Respondent

CHRISTINE MARY WORTHINGTON

Eighth Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram	: MASTER NEWNES
Citation	:  HEWITT & ORS -v- CASELLA [2006] WASC 254
Catchwords:

Appeals - Practice and procedure - Application for a new form of relief after dismissal of appeal reserved for consideration by court which heard appeal - Subsequent abandonment of application

Legislation:

Nil

Result:

Application refused Category: B	[2008] WASCA 13 (S)
Representation:
Counsel:

Appellant	:	Mr M L Segler
First Respondents	:	Mr T O Coyle
Second Respondents	:	Mr T O Coyle
Third Respondents	:	Mr T O Coyle
Fourth Respondents	:	Mr T O Coyle
Fifth Respondents	:	Mr T O Coyle
Sixth Respondents	:	Mr T O Coyle
Seventh Respondent	:	Mr T O Coyle
Eighth Respondent	:	Mr T O Coyle

Solicitors:

Appellant	:	Martin Lee Segler
First Respondents	:	Lavan Legal
Second Respondents	:	Lavan Legal
Third Respondents	:	Lavan Legal
Fourth Respondents	:	Lavan Legal
Fifth Respondents	:	Lavan Legal
Sixth Respondents	:	Lavan Legal
Seventh Respondent	:	Lavan Legal
Eighth Respondent	:	Lavan Legal

Case(s) referred to in judgment(s):

Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246

JUDGMENT OF THE COURT [2008] WASCA 13 (S)

1. JUDGMENT OF THE COURT: Shortly before the court convened to deliver judgment in this appeal on 13 February 2008, the solicitors for the respondents lodged in the Registry a minute of proposed orders and an affidavit sworn by Mr T O Coyle on 13 February 2008 foreshadowing an application for the court to order, in addition to dismissing the appeal, that the appellant should pay to the respondents' (plaintiffs') damages in equity in lieu of specific performance and that the matter should be referred to a master for assessment of such damages. A minute proposing orders to that effect was handed up when the decision on the appeal was announced.

2              Because not all members of the court who sat on this appeal were

available to sit when the decision was announced, and because no sufficient prior notice of a new issue requiring attention had been given, it was not possible to deal substantively with this application when the decision of the court was delivered. In order to accommodate the position, the orders made on that occasion were:

1.	The appeal be dismissed.
2.	The appellant do pay the respondents' costs of the appeal, including any reserved costs to be taxed.
3.	The respondents have 10 days within which to make written submissions to the court, which are to be served on the solicitors for the appellant, outlining the basis upon which the respondents seek orders from this court for the appellant to pay damages in equity, or for the respondents to obtain any other form of relief in the action.
4.	The appellant's solicitors have 10 days from the receipt of the respondents' submissions in which to file submissions to the court upon the matters raised by the respondents' submissions.
5.	After the expiration of the 20 day period, the court will consider the written submissions made by the parties and will decide whether or not it should reconvene to hear oral submissions in support of the respondents' application, and whether amendments of the pleadings or any further evidence foreshadowed by the respondents may be permitted. In the event that the court decides, on the written submissions, that it should not reconvene, an order dealing with this reserved application and any costs arising from it, may be made by the court on the papers.

JUDGMENT OF THE COURT [2008] WASCA 13 (S)

3              As events have transpired, no application has been received from the

respondents outlining the basis upon which the foreshadowed orders were sought or in any way pursuing the matter. The time fixed for lodging such submissions has expired. Furthermore, counsel for the respondents has notified the court by facsimile transmission of 13 March 2008 (long out of time) that the respondents are not seeking orders for assessment of damages in equity or other relief. That is sufficient to conclude the matter and to resolve finally the foreshadowed application made to the court.

4              Nevertheless, the occasion should not be permitted to pass without

observing that an application of this kind is entirely irregular. Once the court has heard the submissions advanced by the parties on the appeal and reserved its decision, no further evidence, application or relief can be entertained without leave of the court being sought and given.

5              The application made to this court on 13 February, without adequate

notice, is one which warrants the comments made by Mason CJ, in a slightly different context, in Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 where his Honour remarked (257 - 258) :

I should express my dissatisfaction with the way in which the appellants' case has thus far been presented. … After argument had concluded in this Court, lengthy written submissions dealing with issues not hitherto raised and a further affidavit were filed. … 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.'

6              In the present instance of course, the reference to the parties

attempting to present new material without leave and after the hearing of
the appeal had concluded should be to the respondents.