Donkin, C.J. v A.G.C. (Advances) Ltd

[1991] FCA 475

Re: COLIN JOHN DONKIN AND HEATHER KAYE DONKIN
And: A.G.C. (ADVANCES) LIMITED
No. G107 of 1989
FED No. 475
Practice and Procedure
103 ALR 95

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Practice and Procedure - use of lengthy written submissions at first instance.

HEARING

BRISBANE

#DATE 7:8:1991

Counsel and Solicitors for applicants: A. Harrison QC with T. Somers

Instructed by: Hempenstall O'Donoughue

Counsel and Solicitors for respondent: R. Morrison QC with J.C. Sheahan

Instructed by: Feez Ruthning

JUDGE1

During address on the preliminary question, counsel for the respondent handed up written submissions of some 90 pages without seeking leave for this purpose and without prior notice. This can give rise to difficulties. Lengthy written documents of this kind are useful where the material dealt with is not contentious, but where the issues are complex and contentious, oral argument is usually necessary to identify the real issues (see In Re E (Minors), English Court of Appeal, The Times Law Reports, 20 June 1991). This is not to say that an outline or "skeleton" of the argument is not of assistance. It usually is.

1. The English Guide to Commercial Court Practice (2nd ed. 1990) states (at p 25):
   

"The extent to which submissions are made in writing or aided by written material must depend upon the circumstances in each case. There is a right to make oral submissions and written submissions are usually only used with the agreement of the Court and counsel as a means of restricting the scope and length of the oral submissions. In heavy cases their use can save time and costs, particularly where there are a large number of matters to be covered; in other cases they would merely be productive of delay and can involve the parties in additional costs in their preparation. However as on other hearings it is advantageous and economical for counsel to submit a skeleton argument on matters of law together with references to legal authorities and to identify the findings of fact asked for in the light of the evidence given during the trial, together with the references to the evidence where necessary."

I agree.

1. In Carr v Finance Corporation of Australia Limited (1980-1981) 147 CLR 246, 258, Mason J. said that in the High Court parties may not file written material after the conclusion of oral argument without leave having been given beforehand. This Court's Practice Note in relation to appeals makes it clear that only a summary of argument is contemplated.

2. In Trade Practice Commission v TNT Management Pty Ltd (unreported, 12 February 1985) Franki J. declined to accept some extremely lengthy written submissions upon the basis that "the mere obligation to read or to decide whether or not to read such a mass of material ... was an unreasonable burden to impose on a Judge". It is hardly necessary to add that another disadvantage is that costs may be thrown away by such an exercise.

3. For these reasons, I directed that lengthy written submissions not be used except with the leave of the Court.