Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Prince v Malouf [2012] NSWCA 234
• Hearing dates: 23 July 2012
• Decision date: 23 July 2012
• Before: Basten JA

Decision

(1) Respondent to file and serve a six page summary of the issues and findings he seeks or resists in relation to the appeal and cross-appeal, including cross-references to the paragraphs of his combined submissions filed 18 July 2012, by 14 August 2012.

(2) Vacate order 1 made on 3 July 2012 and direct the appellant to file and serve submissions in response on the cross-appeal, limited to 20 pages, and a reply on the appeal limited to 10 pages, by 10 September 2012.

(3) Vacate order 2 made on 3 July 2012 and direct the respondent to file and serve submissions in reply on the cross-appeal, limited to 10 pages, by 8 October 2012.

(4) The orange book to be filed by 3 December 2012.

(5) Notice of motion of 26 June 2012 otherwise dismissed.

(6) Respondent to pay the appellant's costs of today, payable forthwith.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - procedure - written submissions - party's written submission exceed the length prescribed by the Uniform Civil Procedure Rules 2005 (NSW) - whether there is a public interest in compliance with time and page limits - Uniform Civil Procedure Rules 2005 (NSW), r 51.36(1); APPEAL - procedure - statement of challenges to findings of fact - whether Uniform Civil Procedure Rules 2005 (NSW) require that statements be clearly identified and separate to written submissions - Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2)
• Legislation Cited: Supreme Court Act 1970 (NSW), s 101(2)(r); Uniform Civil Procedure Rules 2005 (NSW), rr 51.17, 51.36, 51.37
• Cases Cited: Hamod v State of New South Wales [2011] NSWCA 375; Hartigan v International Krishna Consciousness Inc [1999] NSWSC 57; Insurance Australia Limited v Checchia [2010] NSWCA 193; Sullivan v Stefanidi [2009] NSWCA 313
• Category: Procedural and other rulings
• Parties: Stephen Thomas Prince (Applicant); John Joseph Malouf (Respondent)
• Representation: Counsel: Mr T K Tobin QC/Mr P D Herzfeld (Applicant); Mr A T S Dawson/Ms A Rao (Respondent); Solicitors: Walters Solicitors (Applicant); Walsh Halligan Douglas (Respondent)
• File Number(s): CA 2012/74304

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-12-09 00:00:00
• Before: McLoughlin DCJ
• File Number(s): DC 2008/317910

Judgment

1 BASTEN JA: In 2006, Dr Stephen Prince, an ear, nose and throat surgeon based in Lismore, wrote letters to various persons complaining about the treatment provided by Dr John Malouf at Grafton Base Hospital. Proceedings were brought by Dr Malouf in defamation by way of a statement of claim filed in the District Court at Lismore in March 2007. The matter was heard by McLoughlin DCJ over a period of 29 days between November 2010 and September 2011. The trial judge delivered judgment on 9 December 2011. Dr Malouf obtained damages in an amount of $138,500 plus costs. The judgment sum, at least, has been paid.

2 Dr Prince filed a notice of appeal on 7 March 2012 as of right, the amount of the payment being marginally above the amount subject to the requirement for leave, namely $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r).

3 Within 14 days, being the period prescribed by the Uniform Civil Procedure Rules 2005 (NSW), r 51.17(2)(b), the respondent filed a notice of cross-appeal and, two weeks later, a notice of contention. The rules further require that the appellant's submissions be filed within six weeks from the notice of appeal: r 51.37. Submissions are not to exceed 20 pages: r 51.36(1)(f). The appellant's submissions (which were 22 pages) were technically in breach of this rule, but no point has been taken in that regard. The respondent's submissions on the appeal were due by 16 May 2012.

4 In support of the present motion, the contents of which I shall refer to shortly, the appellant filed an extensive affidavit from his solicitor outlining a history of lateness and disregard of court timetables by the respondent. With annexures it is in excess of 40 pages, although it is not paginated. Nevertheless, for present purposes, the short point in respect of timing is that the respondent, with respect to submissions due mid-May, obtained an extension of some eights weeks until 16 July 2012 by way of directions from the Registrar. The submissions were finally filed on 18 July 2012. The respondent has filed in court and read an affidavit of his current instructing solicitor explaining in part the reasons for the delay since he took instructions from the respondent at some date vaguely identified as mid-March 2012.

5 The notice of motion, which was originally filed on 26 June 2012, sought that certain orders made by way of directions be vacated and a further timetable set in respect of the submissions to be filed on the appeal and cross-appeal by the respondent, also the cross-appellant, and submissions in reply by the appellant in respect of the appeal. That matter was due to come before the Court on 3 July 2012 for directions. Part of the notice of motion sought an order that if the respondent failed to comply with the directions in respect of his submissions, a self-executing order would be made requiring that his notice of cross-appeal and notice of contention be struck out. In the event, the motion has been overtaken in large part by the orders made on 3 July for the appellant to file submissions on the cross-appeal and in reply on the appeal by 13 August 2012, and for the respondent and cross-appellant to file submissions in reply on the cross-appeal by 13 September 2012. As I have noted, the respondent's combined submissions on the appeal and cross-appeal and his notice of contention were filed on 18 July 2012.

6 The failures of the respondent to comply with court-directed timetables have extended, it appears (although I have not explored the detail), not only to the matter in this Court but also to previous events in the long litigious history of these proceedings, and suggest a degree of culpable dilatoriness on the part at least of the legal representatives of the respondent from time to time. The proceedings in this Court have been set down for hearing for two days in mid-February 2013. It appears unlikely that any significant delay in obtaining a hearing date has resulted from the extensions of time granted so far in respect of the appeal and cross-appeal.

7 The issue in respect of which the present motion arises (and in support of which the appellant has filed a nine page written submission) is the length of the respondent's combined submissions. As the appellant notes, they total 66 pages. Of those, 23 pages are broadly referable to the appeal and 23 pages to the notice of contention and cross-appeal. A further schedule of 20 pages is sought to be justified as the statement in narrative form relating to challenges to findings of fact permitted by r 51.36(2). The schedules, and there are three of them, appear to comply with the purpose of r 51.36(2). Each of the submissions in respect of the appeal and cross-appeal are beyond the limit specified by the rules but not by much more than the written submissions for the appellant. In this respect it is neither productive nor appropriate to undertake the comparative word counts for the respective submissions prepared by the appellant.

8 To describe the prescriptive limits in the rules as mere guidelines would be wrong, but the court has not entered into the calculation of the comparative lengths of the submissions or the relative delays in order to assign culpability to one party or the other. There is however, as the appellant notes, an element of general public interest in ensuring that parties are, so far as possible, compelled to comply with court and rule-prescribed time limits and page limits. The appellant referred to Hartigan v International Krishna Consciousness Inc [1999] NSWSC 57 at [11] where Bryson J noted the public interest in maintaining the court's authority by observance of arrangements with which the court has directed litigants to comply. I accept that that statement of principle is a factor to be taken into account and those who do comply with the time limits should not be penalised for doing so, nor should those who fail to comply obtain some benefit from their dilatoriness or culpability in that regard.

9 As with many aspects of life, detailed regulation will only work with a degree of flexibility and trust in their administration. When one party pushes the limits beyond reasonable flexibility, a response may be expected. The respondent has pressed the limits in circumstances where his past record has depleted his reservoir of trust. A cross-appeal should not require the full twenty pages of a primary appeal when the background has been clearly established in respect of the submissions on the appeal. The fact that combined submissions were thought appropriate should have led to a reduction in the overall length of the submissions on the appeal and cross-appeal significantly below forty pages and not in excess of it, nor should it be assumed that the statement of disputed facts require a further twenty pages in all cases, a point I sought to make in Sullivan v Stefanidi [2009] NSWCA 313 at [16]. This course, of which this case is not the sole example, places in doubt the desirability of maintaining r 51.36(2) in its present form.

10 The appellant submits that the extra time used to write more detailed submissions was an improper benefit obtained by the respondent, and that extra time that will be taken for the appellant to respond to them; these matters, combined with the fact that the statement set out in the three schedules does not, in the appellant's submission, clearly comply with the terms of the rule, suggests that steps should be taken to have the submissions withdrawn and redrafted, albeit at this late stage of the proceedings.

11 The appellant took the Court to observations of Macfarlan JA in Insurance Australia Limited v Checchia [2010] NSWCA 193 at [2], that the statement contemplated by r 51.36(2) should be identifiable as such even though incorporated into the written submissions. One of the propositions that was made today was that it might be desirable to incorporate so much of the statement as is required into the written submissions, thereby detaching the statements in the three schedules and discarding them, in favour of a rewriting of the written submissions. This was a course which might result in a disregard of the purpose of the rule, which is to seek to have the statements of primary fact clearly identified and dealt with in a separate document. That would be the understanding derived from Hamod v State of New South Wales [2011] NSWCA 375, a judgment in which Beazley JA, with the concurrence of Giles and Whealy JJA, stated at [774] that the rule requires, "the separate identification in the written submissions of substantial challenges made to primary facts found by the trial judge." Her Honour continued that it was not directed to conclusions drawn by the trial judge from primary facts, nor to challenges based upon an argument that there was no evidence to support a conclusion, nor to challenges made on the basis that the trial judge applied a wrong legal test.

12 It is not helpful to expand upon the purpose and content of r 51.36(2) in this case. The contents of the offending submission appear to have been carefully scrutinised by counsel for the appellant for the purpose of this application. It seems futile to reject the document in its present form or to require what would in effect be increased costs for both parties if the document were to be removed and reconstituted in some way. Rather, it should be accepted that the document should stand but that the respondent's counsel should bear the responsibility, as a non-recoverable cost, of the preparation of a six page summary of the issues and findings which he seeks or resists. I propose to direct that that step be taken by 14 August 2012.

13 The written submissions in their combined form with the schedules should stand. The fact that they are extensive means of course that the appellant will be required to undertake greater preparation at a date somewhat before the hearing of the appeal, which is no doubt unfortunate, in order to reply. However, I do not propose any extension on the usual practice in relation to the appellant's response to the cross-appeal or his reply on the appeal. The response to the cross-appeal is entitled to be up to 20 pages and in respect of the reply on the appeal I propose to allow 10 further pages. The current direction made on 3 July 2012 requires that that document or documents be filed by 13 August. Given that the document should in effect respond to, and have the benefit for the purposes of response to, the summary, which will not be available until 14 August, it is appropriate that the 13 August date be vacated, and the appellant's submissions should be filed and served by 10 September 2012.

14 The respondent, according to the timetable proposed on 3 July, has an entitlement to file submissions in reply on the cross-appeal by 13 September 2012. That document should also be limited to ten pages. The date for filing that document should be extended to 8 October 2012. Those documents will all then be in a convenient form to be included in an orange book to be prepared by 3 December.

15 I would add one thing in relation to the summary that is proposed. Although no doubt it will be of assistance to the appellant in formulating its submissions in reply, the primary purpose is to allow the Court to have ready access to the respondent's position in relation to the appeal and cross-appeal through a brief document. If it is thought desirable to cross-reference the summary to paragraphs in the longer document, that would no doubt be of assistance. It is a greater test of good advocacy to reduce submissions to a concise statement than to write an extended treatise, but this way we may have the benefit of both exercises.

16 There remains a question as to the costs of today. I note that there has been no order for costs in relation to the motion of 26 June generally. However, most of that motion has in effect I think been overtaken by circumstances. The fact that I have not made a self-executing order is perhaps an indication that the notice of motion should now be dismissed. I do not however propose that either party obtain the costs of the motion in its present form. I think it is true to say that whatever may have been the cause of dilatoriness and failure to comply with requirements of the rules in the past, the present matter is before the Court because of steps taken or not taken in a timely fashion by the respondent, and I propose to order that the respondent pay the appellant's costs of today.

17 I make the following orders:

(1) Respondent to file and serve a six page summary of the issues and findings he seeks or resists in relation to the appeal and cross-appeal, including cross-references to the paragraphs of his combined submissions filed 18 July 2012, by 14 August 2012.

(2) Vacate order 1 made on 3 July 2012 and direct the appellant to file and serve submissions in response on the cross-appeal, limited to 20 pages, and a reply on the appeal limited to 10 pages, by 10 September 2012.

(3) Vacate order 2 made on 3 July 2012 and direct the respondent to file and serve submissions in reply on the cross-appeal, limited to 10 pages, by 8 October 2012.

(4) The orange book to be filed by 3 December 2012.

(5) Notice of motion of 26 June 2012 otherwise dismissed.

(6) Respondent to pay the appellant's costs of today, payable forthwith.

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Decision last updated: 02 August 2012