FEDERAL COURT OF AUSTRALIA

Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for the Sustainability, Environment, Water, Population and Communities [2013] FCA 782

THE COURT ORDERS THAT:

1.    The final three paragraphs of the applicants’ reply submissions be struck out.

2.    Costs of and incidental to the appearance today be the respondents’ costs in the proceedings.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 27 June 2013, I reserved judgment in judicial review proceedings between Seafish Tasmania Pelagic Pty Ltd (Seafish Tasmania) and another and two Commonwealth Ministers of State, one the Minister for Sustainability, Environment, Water, Population, Communities, and the other a Minister with responsibility materially for fisheries. At the time, I gave directions in respect of the filing of further written submissions. Those written submissions were by direction confined – and that was the word used deliberately by me – to but one particular topic. That topic was the making of further submissions if so advised in relation to the heads of statutory power which would have been open to the Environment Minister or another officer or agency of the Commonwealth to impose conditions of the kind sought by Seafish Tasmania in its submission of 16 October 2012.

2    Submissions were filed by the parties last month. As it happened, the submissions of the applicant addressed not only the subject specified in the grant of leave, but also another topic. That topic had been covered in oral submissions. The addition of further material was truly gratuitous in the sense that it was not the subject of any grant of leave by the Court. Those acting for the Commonwealth Ministers have taken objection to the gratuitous addition of further submissions by the applicants. In so doing, they have drawn attention to pertinent authority.

3    It is necessary to remind those acting for the applicants as well as the profession more generally, I think, of what was said by the High Court in NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at [192]. In that case also there had been a gratuitous addition of submissions to written submissions which were the subject of a restricted grant of leave. In their joint judgment McHugh ACJ and Gummow, Callinan and Heydon JJ observed of that gratuitous addition:

This is unsatisfactory. It is impermissible to file further submissions without leave, and this cannot be evaded by adding on to submissions filed with leave other material for which leave should have been obtained.

[footnotes omitted]

4    Those observations, though made in relation to the exercise of appellate jurisdiction, are no less pertinent in relation to the exercise of original jurisdiction. There is an important principle which underlies those observations. That is, the judicial power of the Commonwealth must be exercised in open court, save in respect of a restricted class of case (of which the trial was not one) which may truly be dealt with in chambers, and fairly.

5    The course urged upon me on behalf of the Ministers is to strike out the passages concerned from the written submissions filed on behalf of the applicants. That seems to me to be the appropriate course to take.

6    Costs have been incurred by the Ministers in the attendance at today’s mention. It seems to be that it will be sufficient in relation to costs if I order that the costs of and incidental to the appearance today be the respondents’ costs in any event.

7    I should as a matter of fairness also indicate that, though the applicants were represented by senior and junior counsel at the trial before me, the submissions concerned were authored only by junior counsel.

Associate:

Dated:    7 August 2013