Clayton Utz’s strictures about the importance of timely discovery and document retention have not dented the consciousness of the Commonwealth’s litigators.
In one of Ken Crispin’s last bursts of fire, before slipping out of his ACT Supreme Court robes, the judge struck out the Commonwealth’s defence in a long-running action against the Air Force by Squadron Leader Russell Vance, who objected to being told involuntarily to hang up his flying goggles.
Crispin may have stopped the fun too soon, as hostilities between the parties had only been underway for 12 years and cost in the vicinity of $10 million.
A board of inquiry on its own notched up a $6 million bill for taxpayers and then had to be reviewed by barristers Jeffrey Hilton SC and Dr James Renwick at God knows what additional expense.
A whole range of matters were probed by the BOI, including whether Vance told risque jokes while officer in charge of the RAAF base at Butterworth.
As Crispy said:
“The amount spent on this inquiry would presumably have covered the cost of the plaintiff’s salary for more than a century… It is difficult to see how even a season of storms in a teacup could have justified such financial profligacy.”
Hilton and Renwick, from the RANR, decided that the board’s findings were in order, whereupon Vance was issued with a “termination notice” which later turned into a determination to retire him involuntarily on medical grounds.
Vance sued for damages, the proceedings starting in May 2001. He alleged that the RAAF was actually motived by a desire to be rid of him without having to rely on the challenged findings of the board of inquiry.
“The conduct of the case during the six years that have elapsed since its commencement has plainly resulted in substantial further haemorrhages of public funds.”
On April 2, 2002 the registrar of the ACT Supreme Court made an order requiring the defendants (Air Marshall “Biggles” McCormack and the Commonwealth of Orstraya) to provide discovery by August 30 that year.
Between 2002 and 2007 there was a flurry of affidavits from the director of litigation at the Department of Defence and some rummaging through boxes of paper, yet the defendants still had not adequately complied with the order for discovery.
Vance applied for orders that the RAAF and the Commonwealth not be permitted to defend the allegations contained in the relevant paragraphs of the statement of claim and that the key paragraphs of the defence be struck out.
“It is now obvious that the searches instituted within the military were not pursued with sufficient diligence or competence.”
Three years after the order for discovery had been made the department unearthed a further 41 boxes of documents.
This, Crispin said, was a stark demonstration of the inadequacy of earlier searches, which should have galvanised the department into the “most rigorous pursuit of every reasonable avenue of inquiry”.
Richard Miller, DoD’s director of litigation, made the following rueful concessions during cross-examination by Francis Purnell SC:
Purnell: Now, its your responsibility when you swear an affidavit of discovery to have caused due search and inquiry to be made. You understand that, don’t you?
Purnell: You’ve used that verbal formula on several occasions in these affidavits?
Purnell: So, when you swore in this affidavit of 8 June this year that you’d conducted due search and inquiry, you’d done nothing of the kind had you, you hadn’t done that?
Miller: Well, to the extent that I was relying upon others doing through it AGS.
Purnell: You had not done the …
Miller: I had not done it.
Purnell: You had not done the inquiries. You hadn’t asked anybody else to do it and you had not been informed that it had been done?
Purnell: So, how were you able to swear that you’d conducted due search and inquiry in your affidavit of 8 June?
Miller: Well, plainly I haven’t been entitled to make that statement.
Purnell: I’m sorry?
Miller: Plainly I haven’t been entitled to make that statement.
The Crispy Cream exploded:
“It is inescapable that the defendants have already had almost five-and-a-half years to find the documents relevant to the retirement of a single officer. An earlier generation of military officers waged the First World War in substantially less time.
“No plaintiff should be forced to endure such an extraordinary delay in the litigation of his or her claim due to the sustained default of a defendant and even Mr [Robert] Crowe’s eloquent submissions [for the Commonwealth] have left me quite unconvinced that there has been any real justification for it.”
His Honour referred to BATAS v Cowell, the case on which Clutz has hung its hat for almost five years.
In Cowell VicAppeals hatched the notion that the destruction of documents prior to the commencement of litigation (but even when the prospect of litigation was real) could only attract a sanction where the conduct amounted to an attempt to pervert the course of justice or was a contempt of court.
As Crispin observed:
“This judgment has been subject to serious criticism.”
He didn’t much like it himself. Quite apart from failing to address the extent to which the destruction of evidence affected the plaintiff’s capacity to have a fair trial, he added:
“If I may say so with respect, it does seem to me to be somewhat incongruous for a court to approach its duty to do justice between the parties to a civil case by dipping into the criminal law and asking whether conduct that may have caused irremedial prejudice to one side was tainted by illegality.”
The thing for decision in Vance’s case was what should be done about the “extraordinarily persistent non-compliance” with the order for discovery?
It had been more than five years. There was no adequate explanation. No assurances had been given as to when search and inquiry would be undertaken. The missing documents were important to the plaintiff’s case.
In a further blow to the already unravelling law of BATAS v Cowell, Crispin struck out the Commonwealth’s defence.
How much longer can Clutz cling to it?