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Uncalled for written submissions after a hearing March 8, 2016

Bale & Anor v Mills [2011] NSWCA 226

Allsop P at [1];
Giles JA at [1];
Tobias AJA at [1]

57 The parties here, and their legal representatives, may perhaps be forgiven if there was any lack of clarity in the leave granted by the President. It is useful, however, to remind the parties (and through the publication of these reasons the profession and public generally) of the correct position that has been stated, over and over again, by the courts. The High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without, or outside, any leave given: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 at 258; In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; 79 ALJR 881 at 884-885 [19]-[23] and 890 [53]-[54]; Dwyer v Commonwealth of Australia (1995) 31 ATR 48; Kirwan v Cresvale Far East Ltd (In liq) [2002] NSWCA 395; 44 ACSR 21 at [340]; Chapman v Caska [2005] NSWCA 113 at [19]; Willis v Health Communications Network Ltd [2007] NSWCA 313; 167 IR 425 at [35]; Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [62]-[73]; Jackson v Conway [2000] FCA 1530; R v Theophanous [2003] VSCA 99; 141 A Crim R 216 at 286 [14]; and R v Zhan Yu Zhong [2003] VSCA 56; 139 A Crim R 220 at 221 [2]-[4].

58 Notwithstanding these clear statements the practice still occurs. That the practice still occurs notwithstanding the regular statements of the courts that it should not is no reason not to continue to state clearly to the profession and the public the correct position.

59 Not only have the parties and their legal representatives no right (whether they agree among themselves to do it or not) to place before the court without prior leave further material after an appeal has been heard, it is wrong. It undermines and derogates from the principle of the open administration of justice. The practice is not legitimated by sending the material and in that material seeking leave. The proper course (unless prior leave, statute or court rule permits otherwise) is for the proceedings to be relisted so that an application to enlarge the record can be made and determined in open court: see In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; 79 ALJR 881 at 890 [54] per Kirby J.

60 The appeal is not an occasion merely for a discussion of the issues so that the parties can go away to marshall and develop their ideas further, bearing in mind the discussion with the court. It is the time and place when and where argument, and sometimes decision, occurs. Once the appeal is reserved, the parties’ rights to argument and to be heard have been exhausted.

61 The consequence of this is not only that sending submissions to the court is wrong, but also the court may (and generally will) ignore what has been sent.

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