Written submissions are not filed as of course. Order 11 Division 9 operates on a direction, and once given, the timetable is short and the limits are strict.
Order 11 Rule 12
(1) The court may of its own motion, direct the preparation of written submissions.
(2) The Registrar shall, if ordered, serve notice on the parties of a direction under sub-rule (1).
(3) The short form of the order may be “submission shall be filed”, which shall mean that the parties shall file submissions in accordance with Order 11 Division 9.
At a Directions Hearing the Duty Judge may direct the manner of presentation of arguments including directions as to when extract of submissions and submissions will be filed, in accordance with Order 11 Divisions 9 and 10.
At the Status Conference the Duty Judge confirms that written submissions have been prepared and filed in compliance with earlier directions. So in practice the direction comes at the Directions Hearing, and compliance is checked before the hearing date is confirmed.
Order 11 Rule 13
The appellant or applicant shall within 10 days prepare, file and serve on each other party a written submission which shall —
(a) bear the title of the proceeding;
(b) identify the party whose case it is;
(c) consist of paragraphs consecutively numbered;
(d) state as concisely as possible (i) the circumstances out of which the matters arise; (ii) the contentions to be urged; (iii) the reasons relied upon;
(e) a list of all legislation and authorities referred to.
Order 11 Rule 22 requires each party to file 4 copies of a list of authorities and legislation before the Status Conference unless the list has already been filed pursuant to Order 11 rule 13(e).
So a proper list appended to the submissions discharges the Rule 22 obligation. See the list of authorities.
Order 11 Rule 14
(1) So far as practicable, references to the portions of the transcript relied upon shall be given by page and line, and extracts shall not be set out. References to case authorities or other material shall be cited with precision to the page and paragraph, and extracts exceeding four lines shall not be set out.
(2) The appellant or applicant shall lodge 4 copies of the submission with the Registrar unless he otherwise directs.
Order 7 Rule 43(1) requires every tenth line on each page of the appeal book to be numbered precisely so that Rule 14(1) can be complied with. A submission that says “the evidence of the second witness” instead of “AB 214.18–24” makes the Court do the searching.
The four-line limit on extracts is also strict, and it exists because a 10-page limit disappears very quickly if quotations are set out at length.
Order 11 Rule 16
A submission must not exceed 10 pages in length and must be signed by the legal practitioner or party presenting the argument.
And Rule 17(4): the Registrar shall not receive for filing any written submission which exceeds the length specified in Order 11 rule 16 or any chronology prepared in contravention of Rule 17.
That is a refusal to file, not a criticism at the hearing. An eleven-page submission comes back.
Order 11 Rule 15
Each other party shall, not more than 10 days after receipt of the appellant’s submissions —
(a) file and serve on each other party his written submissions; and
(b) lodge with the Registrar such number of copies as he may direct.
The time runs from receipt, not from filing. Note the date the appellant’s submissions arrive.
Order 11 Rule 17
Where the parties are required by direction to prepare written submissions, the appellant or applicant shall file and serve, with the written submissions, a chronology of the principal events leading up to the litigation, together with cross-references to the page and line number in the appeal, application, reference, review or other book at which the record of the evidence or other material connected with each event is located; and lodge 4 copies unless the Registrar otherwise directs.
Any other party who regards that statement as inadequate or inaccurate shall file and serve their own statement and lodge 4 copies.
The chronology shall not contain argument or submissions.
A dated list of events, each pointing to a page and line of the appeal book, is often what the bench reads first. Preparing one carefully also tests whether the grounds of appeal are supported by the record.
And a chronology that strays into argument will not be received: Rule 17(4) again.
Making 10 pages work
Circumstances — Rule 13(d)(i). Two or three paragraphs: what the proceeding was, what the primary Judge decided, what is appealed. The chronology under Rule 17 carries the detail, so this need not.
Contentions — Rule 13(d)(ii). One numbered contention per ground of appeal, stated as a proposition the Court can accept or reject.
Reasons — Rule 13(d)(iii). Under each contention: the evidence, cited by page and line; the authority, cited to page and paragraph; and why the primary Judge’s conclusion cannot stand.
Orders sought — matching paragraph (d) of the notice of appeal under Order 7 Rule 9, and section 16 of the Supreme Court Act.
List of legislation and authorities — Rule 13(e).
Where a ground is no longer pursued, say so in the submissions. Order 14 makes this express for matters on the papers — submissions in chief shall specify any grounds of appeal or review or any other contentions that are abandoned or otherwise not being pursued — and it is good practice in every appeal.
It shortens the hearing, it improves the position on costs, and it removes the weakest target from the respondent’s reply.
Sources
- Supreme Court Rules 2012 — O 7 r 43(1); O 11 rr 12–18, 22; O 13 rr 8, 10
- Supreme Court Act (Chapter 37) — s 6
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.