LORBERGS v STA OF NSW; TRIMIS v MINA; GOULD v DAY [1999] NSWCA 54

New South Wales Court of Appeal 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

LORBERGS v STA OF NSW PARTIES : TRIMIS & ANOR v MINA GOULD v DAY JUDGMENT OF : Mason P

Lorbergs: J S Van Aalst (Appellant) K P Rewell (Respondent) COUNSEL : Trimis: T G R Parker (Appellant) M R Errington (Respondent) Gould: Appellant in person No appearance (Respondent) John Bettens & Co (Lorbergs - Appellant) SOLICITORS : 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.