Lorbergs v State of New South Wales

[1999] NSWCA 54

CITATION:	LORBERGS v STA OF NSW; TRIMIS v MINA; GOULD v DAY [1999] NSWCA 54
FILE NUMBER(S):	CA 40861/97; 40164/98; 40828/97
HEARING DATE(S):	10 March 1999
JUDGMENT DATE:	10 March 1999
PARTIES :	LORBERGS v STA OF NSW TRIMIS & ANOR v MINA GOULD v DAY
JUDGMENT OF:	Mason P

COUNSEL:	Lorbergs: J S Van Aalst (Appellant) K P Rewell (Respondent) Trimis: T G R Parker (Appellant) M R Errington (Respondent) Gould: Appellant in person No appearance (Respondent)
SOLICITORS:	John Bettens & Co (Lorbergs - Appellant) Ebsworth & Ebsworth (Lorbergs - Respondent) Coustas & Co (Trimis - Appellant) Elias Gates (Trimis - Respondent)
CATCHWORDS:
DECISION:	Directions given

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40861/97
CA 40828/97
CA 40164/98

MASON P

Wednesday 10 March 1999

LORBERGS v STATE OF NEW SOUTH WALES
GOULD v DAY
TRIMIS & ANOR v MINA

JUDGMENT

1 MASON P: These three matters have been listed for directions today because of non-compliance with the rules.
2 In relation to appeals filed on or after 1 September 1997, Part 51 r 47 requires written submissions and chronologies to be filed by the appellant not later than nine days before the date fixed for hearing. Rule 47(2) makes it clear that days on which the registry is closed are excluded from the calculation of the nine day period.
3 This rule operates in a context where the Court of Appeal allocates special fixtures two or three months in advance of the hearing date. A special fixture allocated in this manner usually means that counsel of choice is briefed from as early as callover and counsel knows from that time onwards of the hearing date. In any event it means that the appellant and/or the appellant's solicitor know of the fixture well in advance.
4 Rule 47 is, or should be, well known to any practitioner who seeks to practise in the Court of Appeal. In any event it is the practice of the Registrar to remind the appellant, or the appellant's solicitor of this obligation when the fixture date is confirmed. Knowledge of and compliance with such a fundamental rule is an ethical obligation of the legal practitioner.
5 A specially convened Court of five judges issued a warning to the profession about the importance of compliance with r 47 in Whyte v Brosch. The judgment is reported in Part 3 of vol 44 of the NSWLR. It has been noted in the Law Society’s Caveat service. In Whyte, Spigelman CJ explained the reasons why compliance with r 47 is important for the efficient use of judicial resources.
6 The Court of Appeal is an extremely busy court. Judges read the submissions in advance of the hearing. Sometimes the convenient time to do this is the weekend prior to the week in which the matter is fixed for hearing. It is important to have this facility so that the argument can proceed with proper dispatch and so that in a proper case ex tempore reasons can be delivered.
7 In Whyte, Spigelman CJ issued a warning to the profession about the sanctions available to the Court to ensure compliance with this rule. His Honour said:
It is important for the profession to understand that other sanctions are available to the Court and may be exercised.
In a case where the opposing party seeks an adjournment of proceedings by reason of the late filing of submissions, if the Court grants the adjournment in accordance with its usual approach, the profession ought to be aware that the Court can order that costs thrown away by any adjournment should be paid by the legal practitioner responsible for the failure.
Other possible sanctions include a reference to one of the professional associations to investigate whether any breach of professional obligations has occurred.
The Court has reserve powers to exercise discipline over members of the profession in so far as conduct before the Court, and in proceedings before the Court is concerned. That jurisdiction is not exercised in deference to the well-established systems of professional discipline operated by the two professional associations. Nevertheless, the Court holds the jurisdiction in reserve, to be exercised if and when the Court finds it appropriate to do so.

8 Unfortunately this warning appears to have gone unheeded. I say that, not just because of what has been disclosed in these three matters, but in the light of experience in a number of other matters where submissions have not been filed on time over recent weeks. An alarming percentage of appeals continue to see the late filing of the appellant's submissions. (A survey of 69 matters listed for hearing in March 1999 revealed 67% of matters in which the appellants were in default.) Seldom is this accompanied by an apology to the Court. It is most rare for any application to be made in advance to the Registrar for any extension of time.
9 A climate of complacency pervades.
10 Nothing appears to get done until phone calls are made from the Court. These phone calls are at times greeted with disbelief and annoyance rather than any sense of recognition of the burden which lax practices are imposing upon the Court and its staff.
11 Without suggesting this remark is applicable to any of the present cases, I should say that these attitudes are indicative of contempt in both its technical and lay senses.
12 It bears reminding that it is not only the Court that is inconvenienced. The effective time allowed to the respondent to prepare his or her submissions is curtailed if the appellant's submissions are late. It is not infrequent for respondents to file two sets of submissions, the first prepared in total ignorance of the points which the appellant proposes to press in the appeal. Respondents also incur costs through having to come to directions hearings such as this.
13 The sanction of dismissing proceedings summarily is available, and the time may come when it will be used. If that occurs, an appellant who has lost a valuable right will no doubt commence proceedings for professional negligence against the solicitor and barrister involved. The Court is reluctant to place this burden upon a litigant when the fault lies, as it does in most cases, in professional work practices which leave things to the last minute.
14 It is recognised that sometimes there are genuine difficulties involving fees. At other times, problems descend upon the legal practitioner which are entirely unexpected. But one suspects that more often than not the real problem lies with the practitioner who takes on too much work, or who traditionally leaves matters to the last minute, or who treats the rules as indicative of something less than an obligation.
15 One alternative would be to refrain from setting matters down until the appellant's submissions have been filed. This is the practice of the Court of Appeal in Queensland. There are difficulties inherent in this, but the present practices cannot be allowed to continue.
16 Turning then to the three particular matters, in Lorbergs the hearing date is fixed for 18 March. The appellant's submissions were due on 5 March. Nothing happened until a phone call was placed with the appellant's solicitors. A message was left with a secretary with an emphasis that the matter was urgent. Still nothing occurred. The matter was then put in for directions. This produced the response of a letter from the appellant's solicitor indicating that counsel briefed in the matter had indicated that the submissions and chronology would be able to be filed by 4pm today. The letter indicated, and counsel who has appeared today has confirmed, that part of the problem had been due to some difficulty in relation to ensuring that counsel's fees are adequately accommodated. That difficulty has been overcome. I suspect that the difficulty could have been overcome had a note of proper urgency been injected into the matter earlier.
17 Counsel for the appellant has indicated to me that he expects now to be in a position to file the submissions and chronology by 2pm tomorrow, 11 March. I will direct that the submissions and chronology be filed and served by that time. This is a case where it is proper to order that the appellant pay the costs of this direction hearing and I so order.
18 In the matter of Gould v Day, the appellant is a litigant in person. He has appeared today in response to the matter being listed by the registry. The appeal is fixed for 16 March. The appellant's submissions were due on 3 March. After a number of phone calls the matter has come to a head in that the appellant has appeared before me and has produced to the Court his submissions. The respondent has not appeared. It may be that the respondent has not received the notice of the matter being listed today because there seems to be some difficulty with the respondent's address for service.
19 In these circumstances, and having heard the explanation given by Mr Gould, I propose to take no further action in the matter. If it ever comes to the respondent's attention that this directions hearing has taken place, the respondent cannot assume that any extension of time for the filing of the respondent's submissions has become available because of the late filing of the appellant's submissions.
20 In the matter of Trimis v Mina, the hearing date is fixed for 17 March. The appellant's submissions were due on 4 March. No notice was given to the registry. Nothing was done. There was a phone call from the Court on 5 March to the solicitor on the record for the appellant. That produced a call from counsel for the appellants who indicated that the submissions and chronology were not ready but would be filed late on Monday 8 March. They were filed by 9 March. Counsel has appeared before me and tendered an apology and offered an explanation. Counsel for the respondent has indicated that the late filing of the appellant's submissions has meant that counsel briefed on the appeal for the respondent has lost the opportunity that he had intended to use over the last weekend to prepare the respondent's submissions. This is another example of some of the problems that occur when a short time table gets behind. It is possible that this may lead to a change of counsel with possible ensuing additional costs.
21 What I propose to do is to extend the time for filing of the respondent's submissions to 4.30pm on Monday 15 March. I will order the appellant to pay the costs of this directions hearing and I reserve to the respondent the right to seek a further order for costs thrown away by reason of the default in the event that new counsel have to be briefed to respond to that default.
22 [Other directions were given].

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