Case Notes — Preparation of Submissions

Barristers ought take careful note of the recent observations of the President of the Court of Appeal in Bowman v Brisbane City Council [2017] QCA 84, a decision handed down on 9 May 2017.

The proceeding before the Court was an application under s 498 of the Sustainable Planning Act 2009 for leave to appeal an order refusing an application to vary an enforcement order.

While the Applicant was self-represented before the Court on that occasion, he had a written outline that had been settled by senior and junior counsel.

The learned President noted that the written outline stated:

“It is, therefore, a nonsense for the primary Court to have found that Council agreed to forbear its right to litigate Bowman’s non-compliance with the orders.”

And that:

“‘In consideration of Council forbearing its right to litigate, Bowman agreed to the terms of the order and consented to the making of the order thus avoiding exposure to prosecution.’ Bowman was prosecuted and convicted at that time.”

The learned President went on:

I wish to denounce in the most emphatic manner the use of derisive and disrespectful language of this kind. It’s contrary to the standards expected of the bar. It is also poor advocacy, because it reveals that the tenor of a submission is wholly partisan, and requires the court therefore, having no faith in the substance of the submission, to sift each proposition made to determine its reliability. Moreover, that submission is wrong. Upon any ordinary reading of his Honour’s dictum in the context of this case, his Honour was referring the respondent’s willingness, in consideration of the applicant’s consent for the order, to forbear suing the applicant to judgment in this matter or to continue his prosecution of him for contempt of court, by which the applicant, having regard to his prior history, might well have been ordered to serve an actual term of imprisonment.

The President’s observations are a salutary lesson for all counsel in preparing and making submissions.

Ed.