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Court in the Act
13 August, 2009  
Lemon Grass interruptus

Terrible birching for ACT Supreme Court judges … Canberra lawyers jubilant at High Court’s wake-up call … Ten months to decide procedural issue … Drowsy procrastination … Natalie Buck reports

The “deplorable” state of judging in the ACT Supreme Court came under fire last week in a scathing judgment from the High Court in Aon Risk Services Australia Limited v Australian National University.

The High’s remarks have been the grist of Canberra lawyer excitement ever since.

imageOne lawyer, who preferred to remain anonymous for the sake of his career, told Justinian:

“This judgment at last brings attention to the a absolutely appalling state of civil cases and the extraordinary delays in getting judgments out of the ACT Supreme Court.

The culture of the long lunchers over there is such that they can barely case manage themselves out of the Lemon Grass restaurant back to court at 3.00.

There is much pent up frustration at the Canberra bar about the delays and absence of case management, which is not voiced publicly.

This judgment is a breath of fresh air.

Justices Gray and Roughshagger (pic, above) are the subject of intense chatter about delays. The master is close behind. Every practitioner has a story about a case reserved for more than 12 months.”

* * *

imageACT Supreme Court Justices Malcolm Gray (at first instance), Hilary Penfold and Chief Justice Terence Higgins – pic – (majority in the Court of Appeal) got a stern knuckle rapping from the High Court for their “torpid languor” and taking an “unduly permissive” approach to an application by the Australian National University to substantially amend its claim mid-trial.

Justice Dyson Heydon found the case provided “numerous examples” on how not to conduct litigation and as a result it merited a “place in the precedent books”.

The High Court also took the opportunity to clear-up its position on case management.

It overturned its earlier thinking in Queensland v JL Holdings.

It said that the Court Procedure Rules should be applied in order to dispose of proceedings in a timely and affordable way and that “there can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory”.

* * *

imageThe stoush was between the ANU and its insurance broker, Aon, concerning damage to a number of ANU properties around the Mt Stromlo Observatory in the 2003 Canberra bushfires.

The ANU commenced proceedings in December 2004 against three insurance companies: Chubb, CGU and ACE.

It joined Aon in the proceedings on June 6, 2005, seeking damages of $75 million in negligence.

The matter was set down for a four week trial in the ACT Supreme Court before Gray, starting on November 13, 2006.

On November 15, 2006 ANU settled with Chubb, CGU and ACE.

* * *

Also on November 15, 2006 ANU sought leave to significantly amend its further amended statement of claim and an adjournment.

The explanation for the application was a bit iffy (after mediation with the insurance companies, senior counsel said it was a good idea).

Gray applied what he thought was some JL Holdings-style justice and gave ANU seven days until November 22 to file and serve the amended statement of claim.

He listed the amendment application hearing for November 27.

imageHeydon (seen here) found this most “surprising”:

“Applications to adjourn trials and related applications for amendments to pleadings are usually decided with extreme speed … It is not usual to permit a month of court time set aside for a trial to be taken up with interlocutory steps conducted in a leisurely fashion.”

On November 27 ANU requested leave to file written submissions in reply to Aon’s written submission by November 30.

Gray responded by giving ANU leave to do so by December 1 and Aon leave to file further written submissions by December 8.

Heydon noted:

“In that fashion, the whole of the four weeks set aside for the trial vanished.”

It was not until a tidy 10 months later, on October 12, 2007 that Justice Gray granted leave to amend.

Heydon thought this approach to be lacking “any good explanation … deplorable [and] excessive … even for the most complex of trials”.

He also described both the delays and procedural directions as being “alien to every axiom of modern litigation”.

The Court of Appeal heard the appeal on February 27 and 28, 2008, managing to just scrape in under the six month mark to deliver judgment on August 25.

It dismissed the appeal. There was no explanation for their six month sojourn.

French CJ:

“The history of these proceedings reveals an unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so.”

* * *

Dyson Heydon described the significant delays by the primary judge and the Court of Appeal as reflective of a “certain culture and mentality”, something that ACT practitioners who have long toiled under the dilatory work practices of the territory’s courts know all too well.

* * *

In Aon v ANU the court overturned its view in Queensland v JL Holdings that “justice is the paramount consideration” and “case management was not an end in itself”.

It said that the court should also consider the public interest in the proper and efficient use of public resources, the effect of undue delay on public confidence in the judicial process and the interests of other litigants in the court system.

It adopted a firmer attitude to limits on re-pleading, stating that a just resolution does not mean “that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.” (see joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell).

imageJustice Kiefel (snap), you might remember, tried to say something along these very lines as the trial judge in JL Holdings, but received a stern telling-off from the High Court at the time.

We leave you to ponder Heydon’s tart observations:

“The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.”


Reader Comments

Posted by: Anonymous
Date: August 13, 2009, 8:27 pm

The reason for the birching is clear. The High Court was reversing JL Holdings and wanted to cover its change. But the delays in the ACT Supreme Court do seem a bit much, to say the least.
Posted by: Anonymous
Date: August 23, 2009, 1:59 am

'A bit much'? Try litigating in the ACT with a moribund Supreme Court and increasingly snippy Magistrates Court. We all pray that we can start and/or transfer a matter to the Federal Court for the sake of our commercial clients at the very least. Many a seasoned practitioner counsels clients to not even try to get a matter before a judge and the advice on outcomes is 'Las Vegas gives you better odds.'
Posted by: Anonymous
Date: August 25, 2009, 11:02 pm

I will give a minority judgement and say that the time period over which Justice Gray was said to be dilatory was when a judge dropped dead and another retired - remember there are only 4 so that is 50% - so he and the CJ were carrying the work of the court between them. This court has an unusually heavy criminal load as no-one in their right mind will do a hearing in the Magistrates Court (unless you score the one or two good magistrates) and the legislation permits trivial matters such as common assaults to be dealt with by jury trial. Ditto bail applications - magistrates just say no so everyone appeals to the Supremo where 65% are granted. The High might think commercial matters deserve priority but surely not over people in custody? Having said that, there certainly are long delays in judgements but the government (bless) didn't help matters by appointing practitioners who were unsuitable. Hilary Penfold - 18 months later - is still finding her way and it is unconscionable to appoint someone at $330,000 and then let them learn how to do it from scratch. She is very pleasant to appear before though but still does not do trials. Refshauge is unsuited by temperament, sleeps in court and puts his feet up on the bench! And this soon after appointment. The ACT government only appoints people who are academics, public servants or their friends. Merit is the last thing they think of.