R Developments Pty Ltd v Forth
[2016] ACTCA 25
•7 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R Developments Pty Ltd v Forth |
Citation: | [2016] ACTCA 25 |
Hearing Date: | 7 July 2016 |
DecisionDate: | 7 July 2016 |
Before: | Refshauge J |
Decision: | 1. The directions of Deputy Registrar of 2 June 2016 be set aside. 2. In lieu, the appeal books be prepared in accordance with the draft index as filed by the appellants and filed and served on or before 12 August 2016. 3. The appellant’s summary of argument and list of authorities be filed on or before 42 days prior to the date listed for the hearing of the appeal. 4. The respondents’ summary of argument and list of authorities be filed on or before 35 days prior to the date listed for the hearing of the appeal. 5. Any reply of the appellant be filed on or before 28 days prior to date listed for hearing of appeal. 6. The parties have leave to file supplementary appeal papers containing any documents referred to in the parties’ summary of arguments that are not contained in the appeal books as filed, either by consent or, if there is no consent, then with leave of the Registrar, such appeal papers to be filed not later than 21 days prior to the listing for the hearing of the appeal or other date as directed by the Registrar. 7. The listing of 14 July 2016 be vacated. 8. The costs of today’s application be reserved to the appeal court. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEURE – Preparation of appeal – appeal books – contents of appeal books – only material necessary to determine appeal – issues as defined by pleadings – supplementary appeal papers permitted if necessary |
Legislation Cited: | Supreme Court Act 1933 (ACT), ss 37N, 47(2) Court Procedures Rules 2006 (ACT), rr 5413, 5416, 5430, 5430(1)(c), 5431, 5432, 5433, 5606, 6256, 6256(4), |
Cases Cited: | Brisciani v Piscioneri [2016] ACTCA 24 Canberra Hire Centre Pty Ltd v Koppers Wood Products Pty Ltd [2013] ACTSC 162 |
Texts Cited: | D Mildren, The Appellate Jurisdiction of the Courts in Australia (The Federation Press, 2015) |
Parties: | R Developments Pty Ltd (Appellant) Andrew Stephen Forth (First Respondent) Ksenija Maria Nemet (Second Respondent) |
Representation: | Counsel Dr A Greinke (Appellant) Mr D Robens (Respondents) |
| Solicitors Meyer Vandenberg (Appellant) Kamy Saeedi (Respondents) | |
File Number: | ACTCA 7 of 2016 |
Decision under appeal: | Court: Court of Appeal Before: Deputy Registrar Mutharajah Date of Decision: 2 June 2016 Case Title: R Developments Pty Ltd v Forth Court File Number: ACTCA 7 of 2016 |
REFSHAUGE J:
The appellant is a builder who entered into a contract with the respondents to build a residence in Yarralumla, ACT. The appellant terminated the contract and the respondents disputed its right to do so. On 4 February 2016, Mossop AsJ found that the appellant had no right, in the circumstances, to terminate the contract. See R Developments Pty Ltd v Forth [2016] ACTSC 8. The appellant has now appealed to this Court from that decision.
Under the Court Procedures Rules 2006 (ACT), the appellant is required to prepare and file appeal books, called in the Rules “the appeal papers”. I have described the need for this in Brisciani v Piscioneri [2016] ACTCA 24 at [14]. The appeal books are clearly designed, and should be prepared, in order to facilitate the efficient conduct of the appeal and, of course, to assist the Court of Appeal.
The process requires the appellant to obtain and file various documents (r 5430 of the Court Procedures Rules) and prepare an index of the appeal book (r 5431). That index is, of course, to be served on the respondent or respondents. The index is then settled (r 5432), usually by the Deputy Registrar (see r 5432 and s 47(2) of the Supreme Court Act 1933 (ACT)). That is commonly done in court and the settled index provides the basis on which the appeal books are then prepared.
In this case, the Deputy Registrar directed, on 5 May 2016, that both the appellant and the respondents file a draft index and, on 2 June 2016, settled the index for the appeal papers by directing that the appeal papers be prepared in accordance with the index filed by the respondents. The Deputy Registrar did appear to defer the actual preparation of the appeal books until after the usual callover of appeals when, it appears that inclusion of the transcript and the affidavits filed in the proceedings (the inclusion of which was the main difference between the draft index of the respondents, not included in that of the appellant) could be revisited. This seems to me to make the settlement of the index provisional.
The appellant has now appealed against that decision. It filed its Notice of Appeal on 9 June 2016.
An appeal against a decision of the Registrar, or a Deputy Registrar exercising the powers of a Registrar, may be commenced under r 6256 of the Court Procedures Rules. The appeal is a hearing de novo: r 6256(4). That means, as explained in Lacey v Attorney-General of Queensland (2011) 242 CLR 573 at 597; [57], that the court will hear the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.
Rule 5433 of the Court Procedures Rules, which sets out, in effect, the default list and order of the documents to be included in the appeal books, gives an indication of the material that is to be included. In Sullivan v Sullivan (1901) 27 VLR 86 at 87, A’Beckett J pointed out, though on somewhat different rules in form but perhaps not in substance,
the intention of that rule was that only that which appears to be essential to the appeal shall be printed ... Previously the practice was to put in almost every document. The parties were under an obligation to do that, for they did not know what might be said to be material. This rule is intended to prevent the wasteful setting out of documents and evidence which was unavoidable under the old practice.
Of course, only material that was before the trial Judge should be included in the appeal books. Any other material is only admissible if the court gives leave under r 5606 of the Court Procedures Rules and there are procedures in the rules for moving the court accordingly.
In recent times, there has been concern expressed by the courts about the inclusion in appeal books of unnecessary and often voluminous material that is infrequently referred to on the appeal, even as to giving context to material on which reliance is placed or to which reference is made in submissions, written or oral.
Thus, in Cultivaust Pty Ltd v Grain Pool Pty Ltd (2005) 147 FCR 265 at 280-1; [72], [76], the Court said:
72 A further issue was raised on the hearing of the appeal concerning the costs of the appeal books. The appeal books consist of nine volumes, four of which contained exhibits to witness statements. Three of the remaining books consist of witness statements and oral evidence. Only several pages of those seven volumes were referred to in the course of the hearing. It is clear that there was a very significant quantity of material included in the appeal books that was quite unnecessary for the resolution of the issues raised on appeal...
76 The needless inclusion of material in appeal books is a matter of growing concern in this Court. The present appeal demonstrates starkly how little of what has been included was necessary for the orderly disposition of the matters actually in issue...
The test is really that the appeal book should contain all documents necessary to enable the questions posed in the Notice of Appeal and any Notice of Cross-Appeal or Notice of Intention to be determined, but no more. See Purvis v Dairy Adjustment Authority (No 2) (2006) 150 FCR 48 at 50; [11].
In his useful volume, The Appellate Jurisdiction of the Courts in Australia (The Federation Press, 2015) at 39; [4.24], the Honourable Dean Mildren, an experienced former judge both at first instance and on appeal, wrote:
The purpose of the index, apart from producing a useful aid to finding what one is looking for, is to ensure that every document which is required to decide the appeal is before the court, and that irrelevant documents are excluded. There is nothing more annoying to an appellate judge than to be presented with large volumes of material only to find that little more was required than the judgment appealed from. The judges may have wasted a great deal of time reading unnecessary material before the appeal is heard but, in addition, the parties have been put to additional costs for labour and photocopying that have been unproductive. This could well result in a costs order against the party who insisted that the irrelevant material be included in the appeal books, irrespective of the outcome of the appeal. If in doubt, it is better to leave something out than to put it in. If it turns out at the hearing that some document was left out that should have been included, this can be handed up later if notice has been given to the other side and there is no objection, as is often the case.
Indeed, courts have now become more willing to order that a party who unnecessarily produces documents shall, whatever the outcome of the hearing, pay the costs of such unnecessary copying. See, for example, Settlement Wine v National and General Insurance Co (Unreported, Supreme Court of South Australia, Perry J, SCGRG 9569 1988, 27 February 1997).
The task of the Registrar (or, where appropriate, the Deputy Registrar) in settling the index to the appeal papers under r 5432 of the Court Procedures Rules involves identification of the material (mostly documents) that was before the court from whose decision the appeal is taken and then deciding which of those documents are to be included in the appeal papers.
The latter task involves an understanding of the issues in the appeal and that is to be ascertained from the grounds of the appeal and, of course, having regard to the order of the court below and the reasons published for that order. It is assisted by the case summary that the appellant is required to prepare and file under r 5430(1)(c) of the Court Procedures Rules as noted below at ([19]).
The appellant contends that the index prepared by the respondents does not comply with these principles. The appellant seeks to exclude four volumes of material which it says contains material which is not necessary or relevant to the proper disposition of the appeal.
The grounds of the appeal, set out in the appellant’s Notice of Appeal, are as follows:
(a) the primary judge erred in finding that the Owners’ obligations under clause 4 of the Contract ceased upon the commencement of works by the Builder;
(b) the primary judge erred in finding that by commencing works the Builder made a binding election;
(c) the primary judge erred in finding that clause 27(1)(v) did not impose obligations upon the Owners or permit the Builder to terminate the Contract;
(d) the primary judge erred in finding that clause 27(a)(v) was not an essential term of the Contract;
(e) the primary judge erred in finding that upon termination of the Contract the Builder was not entitled to claim damages;
(f) the primary judge ought to have assessed damages and erred in finding that additional issues would be relevant.
The appellant says that the appeal grounds are, in fact, very narrow and involve merely the construction and legal effect of a clause in the building contract entered into between the appellant and the respondent and which is a standard form contract published by the Master Builders Association of the ACT.
The case summary, required to be filed by the appellants under r 5430(1)(c) of the Court Procedures Rules, is designed to give a picture of the case so that the issues can be set in context. The summary in this case was as follows:
In the proceeding above the appellant (Builder) and the respondents (Owners) had entered into a standard form ACT Home Building Contract published by the Master Builders Association of the ACT (Contract). On 3 August 2013 the Builder gave the Owners a letter requiring them to provide evidence of sufficiency of funds for the project, and giving notice that the Builder intended to terminate if the Owners failed to provide that evidence within 5 days. On 13 August 2013 the Builder terminated the Contract and claimed damages. At trial the Owners contended that they had shown the Builder evidence of funding in February and August 2013, and that the termination was invalid on the property construction of the Contract. The Owners counterclaimed for damages for repudiation by the Builder. The primary judge found that the Owners had not shown evidence of funding to the Builder, but held that the Owners had no obligation to provide that evidence for, on the proper construction of clause 4(a) of the Contract, once building works had commenced, the Owners’ obligation to provide evidence of funding ceased. The primary judge further held that: clause 27(a)(v) did not impose any obligation to provide evidence of funding; the notice of termination was formally invalid; and even if the Builder validly terminated the Contract, it was not entitled to any damages. The primary judge found that the defendants had failed to prove their loss and damage. The orders were that the defendants have judgment on the Builder’s claim and nominal damages on their counterclaim. The appellant contends that the primary judge erred as to the proper construction of clauses 4(a) and 27(a)(v), and ought to have found that the Builder validly terminated the Contract and was entitled to damages.
This confirms the appellant’s assertion about the scope of the appeal. Thus, grounds (a) to (d) of the appeal set out above (at [17]), are directed to the proper construction of the terms of the contract, being in particular, clauses 4 and 27. Ground (e) is said to be a pure question of law not turning on any facts.
No findings of fact by the Associate Judge have been challenged in the Notice of Appeal and no Notice of Contention nor Notice of Cross-Appeal has been filed. The time for filing any such Notice of Contention (r 5416 of the Court Procedures Rules) or Notice of Cross-Appeal (r 5413) has now expired and the filing of any such notice would require the leave of the court.
An inspection of R Developments Pty Ltd v Forth at [97]-[130] and [133]-[144] (clause 22) shows that the contention of the appellant is correct. His Honour, in those passages, was engaged entirely in the task of construing the two clauses in the contract. While there is, of course, some factual background which places the contract in the context of the actual proceedings, this is not entirely necessary for the understanding of the terms of the relevant clauses of the contract.
As the appellant asserts, extrinsic facts are not ordinarily admissible to interpret a written agreement. See Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337. While the strictness of that approach has been tempered in recent times and the relevance of “surrounding circumstances”, which may require evidence, has given some nuance to what was there said, as I explained in Canberra Hire Centre Pty Ltd v Koppers Wood Products Pty Ltd [2013] ACTSC 162 at [180]-[208], none of that seems to be relevant in this case.
An inspection of the passages from his Honour’s decisions, to which I have referred above (at [22]), show that his Honour did not rely on any extrinsic facts to assist in the textual analysis in which his Honour was engaged.
The appellant further asserts that the factual findings of Mossop AsJ are sufficient to resolve the proceedings if the correct construction of the contract is held to be as the appellant contends.
That is to say, Mossop AsJ found that neither respondent showed to a director of the appellant the documents which the appellant says were required to be shown. See R Developments Pty Ltd v Forth at [65], [87]. Thus, for example, there was no occasion for the need to consider whether documents shown constituted “reasonable satisfactory evidence” as required by clause 4 of the contract.
Mr D Robens, who appeared ably for the Respondent, submitted:
(1) that s 37N of the Supreme Court Act 1933 (ACT) required all the evidence that was before the court below to be before the Appeal Court;
(2) that the present state of the appeal, it was not possible to be sure what the Appeal Court would want to consider by way of evidentiary material; and
(3) that the Respondent may argue that even if the Appellant succeeded in all the grounds of its appeal, so far as the construction of the contract and its terms were concerned, the factual findings of Mossop AsJ were not such as to mean that the Appellant should succeed in its claim for damages.
So far as the first point is concerned, s 37N of the Supreme Court Act is as follows:
37N Evidence on appeal
(1) The Court of Appeal must have regard to the evidence given in the proceeding out of which the appeal arose.
(2) The Court of Appeal may draw inferences of fact from that evidence.
(3) The Court of Appeal may receive further evidence in any of the following ways:
(a) by oral examination before the court or a judge
(b) on affidavit;
(c) by audiovisual link or audio link;
(d) any other way the court may receive evidence.
(4) In this section:
audio link – see the Evidence (Miscellaneous Provisions) Act 1991, section 16 (Definitions—ch 3).
audiovisual link – see the Evidence (Miscellaneous Provisions) Act 1991, dictionary.
In my view, this section is not a mandatory direction to the Appeal Court to read all the evidence given in the court below and that, were parts, especially substantial parts, not necessary to the disposition of the appeal then the section would not require that, nevertheless, the whole of the evidence should be in the appeal books. The section is, in fact, an indication of the nature of the appeal, as has been set out in Omari v Omari [2016] ACTCA 16 at [11].
As to the second point, it seems to me that the Appeal Court is generally bound by the pleadings, that is the Notice of Appeal and, if any, a Notice of Cross-Appeal or a Notice of Contention.
If a finding of the court below is not challenged in such a way by such pleadings then unless such a finding is otherwise disturbed, such as by a necessary consequence of another finding of the Appeal Court, it should not be disturbed on, for example, the own motion of the court. While it is correct that it is not possible to predict what an Appeal Court will consider relevant, the pleadings will define the issues and an Appeal Court cannot complain if, on the hearing, it wishes to look at other material that is not in the appeal book because it is not in issue before it.
The Hon Mr Mildren pointed out that this can be rectified by the handing up of the material at the Appeal hearing.
Finally, as to the third point, it seemed to me that the kind of challenges Mr Robens was suggesting were ones that would require a Notice of Cross-Appeal or a Notice of Contention to be filed and which have had not been filed.
It would require leave of the court for either notice now to be filed.
Mr Robens submitted further, however, that the precise scope of any evidence that may be needed would not be known until the submissions of the appellant were filed.
While that seems unlikely, I accept that, if the appeal books are to be truncated in its contents, as suggested by the appellant, then there should be some mechanism in this case for supplementary material to be supplied.
That was, in a sense, available under the Deputy Registrar’s directions, for the appeal books were, it appears, not to be produced until after the callover and then a decision could be made about the contents. The directions seemed to amount to a provisional settlement of the index which was not, I have to say, how I read the Deputy Registrar’s decision.
Nevertheless, some version of this approach may be appropriate.
I consider, however, that the appeal books should be filed in the ordinary way without delay. That is convenient to the court and to the parties in preparing their submissions so that, for example, cross references to the appeal books can be included in those submissions and then material to be before the court clearly known. In my view, the appeal books should be prepared in accordance with the draft index prepared by the appellant.
I accept that a changed timetable for the proper conduct of the appeal should also be made so that any supplementary material can be provided in the event that the submissions of any party makes reference to anything other than the material in the appeal books.
To this end, the orders I propose to make, subject to any submissions of the parties are:
1. The directions of Deputy Registrar of 2 June 2016 be set aside
2. In lieu, the appeal books be prepared in accordance with the draft index as filed by the appellants and filed and served on or before 12 August 2016.
3. The appellant’s summary of argument and list of authorities be filed on or before 42 days prior to the date listed for the hearing of the appeal.
4. The respondents’ summary of argument and list of authorities be filed on or before 35 days prior to the date listed for the hearing of the appeal.
5. Any reply of the appellant be filed on or before 28 days prior to date listed for hearing of appeal.
6. The parties have leave to file supplementary appeal papers containing any documents referred to in the parties’ summary of arguments that are not contained in the appeal books as filed, either by consent or, if there is no consent, then with leave of the Registrar, such appeal papers to be filed not later than 21 days prior to the listing for the hearing of the appeal or other date as directed by the Registrar.
7. The listing of 14 July 2016 be vacated.
8. The costs of today’s application be reserved to the appeal court.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 21 July 2016 |
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