SPEAKING NOTES
Civil Appeals
1.
To know where we are now, it is valuable to know where we have
previously been.
2.
Let me revert to a period five years ago.
3.
Assume there to have been an eight day commercial trial. Let me speak
about that past trial. There was some contested evidence. In limited
respects, credit was in issue. There was an array of documents.
4.
An efficient trial Judge delivered judgment six weeks after the trial.
Assume that Her Honour’s judgment was 60 pages long. There were
three critical factual findings, one based on credit, and two complex
legal issues – one on admission of expert evidence, and one on the
question of equitable assignment.
5.
The Plaintiff lost.
6.
There were no offers of compromise. Upon delivery of Judgment, a
final order was made. Judgment was entered for the Defendant. The
Defendant received, five years ago, a party/party costs order and the
proceeding was otherwise dismissed.
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7.
In that far away land, five years ago, the aggrieved losing party needed
to initiate an appeal in a short time frame. The order from which the
appeal was brought was a final order. Just a Notice of Appeal was
needed. McHugh J once said that in any winning appeal there should be
no more than three grounds of appeal.
In any event, for a skilful
practitioner, in particular one involved in the trial, it is not especially
onerous to prepare a short Notice of Appeal.
8.
Now - it was imperative for the appeal to be lodged in a timely way.
9.
Jackamarra; para [7].
10.
Pausing for a moment, appellate authority has always cautiously adopted
the distinction between an appeal validly initiated within time, and an
appeal not validly initiated within time. In Victoria, Justice Beach was
part of the Bench recognising this point in Tenth Vandy v Natwest
Markets [2010] VSCA 218.
11.
Once the appeal is within time, Courts are highly protective of the right
of an appellant to pursue it to hearing and determination. But my point
was that it was imperative for the appeal to be lodged in a timely way.
12.
Returning to where we were, in that appeal a directions hearing was
listed. Junior Counsel usually attended. Time frames were put in place,
consequent on dialogue. If there was an urgency it could be exposed. If
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there were timing questions about the length of the oral hearing on the
appeal they could, at least, be raised. If from an eight day trial with
credit issues more than six pages was needed for an Outline, that could
be discussed; and in my experience when reasonably proposed, would
be varied. Paperwork would then be prepared: and for well-resourced
parties in commercial disputes, at least, it would all proceed efficiently.
13.
Let me now identify where we are now.
14.
From the point of view of the profession, I want to propose that there are
three changes that might be seen to matter; and thus to focus on those
three changes.
15.
The first change involves timing of paperwork.
16.
Relevant Rules of Court remain in Order 64. Under Rule 64.05, the
relevant application must be “filed” within 28 days after the decision to
which the application relates was made. For these purposes, the date
begins at the making/pronouncing of orders by the trial Court below.
17.
And so, let me focus again on the loser below.
18.
But this time, the hypothetical loss was last week.
19.
On day zero, the loser below received judgment and final orders.
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20.
I was in an appeal this year from a judgment of a trial Judge that was
102 pages long. [For the solicitors in the room, it was an extremely
complex tax case, and I won]
21.
Now - so in respect of a hypothetical 102 page judgment, between day
zero and day 28, the following would need to occur:

Counsel would review the judgment;

orally or in writing, depending on circumstances including the
location of the client, advice on prospects of an appeal would be
prepared and delivered. On important matters, the advice might
be reasonably detailed and would pass through the hands of
Junior Counsel and then Senior Counsel. Five years ago, in
passing, such advice might have included the preparation of
proposed grounds of appeal;

consequent on the advice being provided, instructions would be
received to initiate the appeal processes;
22.

there would be some drafting – and I will return to this;

documents would be lodged.
Very able appellate practitioners in Victoria are reasonably limited.
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23.
In any event, and it may not be alternatively, a client may want to keep
its trial team. The commitments of that able practitioner, or that existing
team, from the standing start on day zero, are unknowable.
24.
I want to return to the issue of drafting.
25.
Drafting, now, involves four separate tasks:
26.
(1)
the Written Case - which in substance is like a Notice of Appeal;
(2)
a Factual Summary;
(3)
a Legal Outline; and
(4)
a Proposed Index.
I want to propose this evening – respectfully - that the present time
frames are too short.
27.
I want to propose an alternative: that only the Written Case be filed and
served in 28 days.
28.
There should then be a further period for the remainder of the drafting,
and thereafter a period for the Respondent’s response.
29.
To be clear, I do not propose that the further timeframe for the applicant
be at all long.
Indeed, I propose the contrary.
consideration further 3 weeks.
I propose for
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30.
The Applicant would thus have further time to prepare in particular its
legal argument, and the Respondent – from the initiation of paperwork
on Day 28 - can be organising its team, its thinking and its approach
awaiting the Applicant’s further paperwork.
31.
My proposal would add three weeks in total to timing. In addition, it
would add no time at all to listing. In this efficient age, listing occurs
perhaps six months after the Judgment of the trial Judge. Extending
paperwork by another three weeks would not affect that prospect at all.
32.
To conclude my first point: lodging of the written case in week four,
and lodgment of all other paperwork in week seven. This gap does not
affect efficiency. It does not cut across the Court’s processes. Nor does
it cut across the Court’s policy intent. It reasonably recognises extant
commitments in a context where the Court of Appeal expects that the
best advocates will fully involve themselves in the relevant paperwork.
33.
May I then turn for the second change which, in my view, matters.
34.
Under the Rules of the Supreme Court – Rule 64.05 - the Application
for Leave to Appeal needs now to be initiated in 28 days. Rule 64.05
provides:
64.05
Time for filing application for leave to appeal or notice of
appeal
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(1) An application for leave to appeal or, where leave to
appeal is not required, a notice of appeal and the other
required documents shall be filed—
(a) within 28 days after the decision to which the
application or appeal relates was made; or
(b) within such further time as the Court of Appeal or
the Registrar may allow.
(2) If leave to appeal is required, and a notice of appeal is
filed before leave has been granted, any respondent may
apply to the Court of Appeal for an order dismissing the
appeal as incompetent under Rule 64.33.
35.
I have already referred to the Judgment of the High Court in
Jackamarra. If the application is not initiated in 28 days, the “winner”
below has a vested right to the judgment. The position is binary: The
processes are initiated in a timely way, or the processes are not.
36.
The new procedures create a hiccup. In my view, the new procedures
create quite a remarkable hiccup.
37.
It is now a matter for the Registry of the Supreme Court whether or not
documents delivered for filing, and substantially in order, are in fact
treated as [stamped and] filed. If, for example, the formatting of the
written case is not in accord with Practice Note or other requirements,
there is a real prospect that the documents will not be accepted as filed,
but will instead be returned to the practitioners for attention.
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38.
Indeed, if a document is delivered to the Registry on a Monday
afternoon, an efficient Registry might return such documents on the
Thursday morning requiring attention. All of this may take, therefore,
quite a few days.
39.
May I notice one further matter.
40.
In April 2015, the Judicial Registrar published publicly a helpful paper
identifying what the Registrar considered to be teething issues and
providing a position and explanation for them.
41.
Issue 4 was called “Signing Requirements”.
The paper relevantly
recorded as follows: READ.
42.
Let me return to the second issue I need to deal with.
43.
The point I wish to make is as follows.
44.
Under these processes, the Applicant cannot be certain of its ability to
file its application, in a timely way. A non-judicial officer of the Court
is causing the paperwork not to be filed. It cannot be satisfactory in my
view for the Jackamarra doctrine to bite in this circumstance. Nor, in
my view, is it satisfactory for a view to be formed that this does not
matter – either because a respondent would not take the point, or
because a judicial officer would give short shrift to a respondent
demanding that an extension of time application be made. We wouldn’t
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tolerate other property rights being subject to the unreviewable whim of
administrative officers.
45.
I propose one change only to the system.
46.
In my view, the written case when delivered should be treated as filed
and stamped accordingly. Alternatively, it should be noted in a register
as filed on a particular day; and when in correct form, stamped by
reference to that date. No other approach is satisfactory because it
cannot be satisfactory for a non-judicial officer to determine whether or
not paperwork has been filed in a timely way.
47.
The third issue I wish to raise is closely connected with the second issue.
48.
Under the new provisions, in practice and in fact, many more decisions
are now being made by the Registry; or at least without the parties
having an opportunity to be heard.
49.
There is no directions hearing.
50.
There is no occasion to make submissions on the suitable timing for the
appeal.
51.
There is no satisfactory process to identify how to seek an extension of
the page limit for the legal submissions.
52.
In the High Court, the page limit for submissions is 20 pages.
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53.
Reading submissions on line, in the quality advocacy appeals, there is no
sense that these pages are being wasted or that they are unnecessary.
54.
I return to our appeal processes.
55.
I phrase rhetorically how an applicant seeking an extension of the page
limit is to obtain that extension. The paperwork is terribly important.
We all know that in some appeals the author or authors of judgments
pay particular attention to it. It cannot be satisfactory that a party
seeking an extension of a page limit will not be heard; and if denied the
request, cannot relevantly have that speedily reviewed. Nor, in passing,
is it satisfactory for an applicant to obtain an extension without a
respondent having an opportunity to be heard.
56.
The more general proposition is that, at least in important matters, there
should at least be an opportunity for an oral directions hearing. 30 days
of Court time might have been taken on an important commercial trial.
It cannot be disproportionate or inefficient for a suitable officer, on
occasions a judicial officer, to manage appeal processes.
My own
experience, and anecdotally, suggests to me that this is not occurring.
57.
Can I conclude my speech this evening with some final remarks.
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58.
I have raised matters already which present to me as being worthy of
consideration, but the system itself involves important and desirable
reforms.
59.
I have no concerns about paperwork being proposed at the
commencement of the proceeding.
60.
Nor do I have concerns, in the usual case, with efficient processes being
followed by practitioners and enforced by Registry staff.
61.
Further and importantly, it is marvellous that applications for leave are
heard and determined with such speed.
When I commenced
participating in appeals in the late 90s, it was not unusual for there to be
in the order of 15 or 18 months between trial judgment and hearing in
Court of Appeal. This was obviously unsatisfactory. It is a credit to the
Court that parties’ interests are properly now protected by efficiencies
enabling appeals to be heard in the usual case about six months after
initiation. All of this is to the good, and to the credit, of the Court.
21 September 2015