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Court in the Act
20 April, 2005  
A long way from high noon

The massive litigation unleased by Taswegian logger n’ chipper, Gunns Ltd, is going to chew up more time and resources than it is likely the directors contemplated. It will be about a year before the case is actually ready for trial. Then it will rumble on for who knows how long.

imageHaving brought a massive case against the Wilderness Society and nineteen other defendants, Tasmanian logger n’ chipper Gunns Ltd now has a huge job in front of it to keep up.

Justice Bernard Bongiorno (seen here) of the Victorian Supreme Court made some pointed comments about Gunns’ astonishing under-estimation of the time it will take to prepare, let alone to try this monster.

The directions hearing on April 8 was attended by eight sets of defence counsel including top guns Julian Burnside, Mark Dreyfus, Brian Walters and Tasmania’s Stephen Estcourt. The serried ranks of other defendant counsel included Phillip Bornstein, Stephen O’Meara, Sam Hay, Judy Benson, Laurence Maher, Roland Browne and Michael Gronow.

The action commenced on December 13, 2004 when Gunns issued its writ. The statement of claim ran to 215 pages, comprising 529 paragraphs, alleging a raft of wickedness against 20 defendants: machine sabotage, destruction of property, blocking of access, obstruction and trespass.

Gunns wants damages of $3.5 million from the Wilderness people and total damages against all defendants of $6.3 million.

The plaintiff is proposing that defences be filed by April 29, further and better particulars by various dates after that, replies sometime in July, discovery in August, inspection in August, and further directions also in August.

However, as Bongiorno said at the directions hearing:

” it seems to me as I think I expressed last time, that the ultimate resolution of this matter, if it proceeds according to what might be said to be ordinary or normal litigation procedures, will be years away. It is the complexity of the statement of claim is such, the number of parties are such, that the chances of it being able to be run as if it was an intersection collision involving two motor cars, is very remote.”

The judge contemplated the idea that it might be better to split the case up into a number of smaller cases:

“It seems to me to be a waste of resources for every defendant to grapple with every allegation in this massive pleading of whatever it is, 200 pages with 500 paragraphs, when some defendants may be only involved in some parts of this matter.”

That was not supported by counsel for Gunns, John Irving.

The Bonge then asked Irving, “When it is anticipated that this case will be ready for trial?”

IRVING: It will depend very much on how these pleadings proceed.

HIS HONOUR: When do you want it to get on for trial?

IRVING: As soon as it is ready, Your Honour.

HIS HONOUR: What do you anticipate that is likely to be, this year, next year, 2008?

IRVING: I haven’t, Your Honour, turned my mind to the exact timetable that might occur after 29 August. There will be a need for interrogatories and after the inspection of documents, which is slated here to occur on 26 August, we would anticipate that interrogatories will be extensive in the matter, Your Honour.

HIS HONOUR: Have you turned your mind to how long a trial of the whole of this proceeding at once would be likely to take?

IRVING: Your Honour, subject of course to the defences that are raised in the matter, we would anticipate that the matter would go for some weeks, certainly.

HIS HONOUR: Some weeks? That is the greatest expression of optimism I have heard in this court for a long while. I mean could you see it finishing within a year, in all seriousness? I mean I have only read the statement of claim, I have not looked at any of the evidence, but having read the statement of claim it seems to me that particularly if whatever it is 18 or 19 parties are going to be represented and all taking part in the trial, I could not imagine it finishing within a year. I may be wrong, it may be

IRVING: Within a year of now, Your Honour, no.

HIS HONOUR: No, no, within a year of commencing the trial?

IRVING: I would anticipate that most certainly.

Some defendants have already requested further and better particulars and the requests, so far, run for over 50 pages covering 104 separate matters.

His Honour was unenthusiastic about the plaintiff’s attempt to withhold documentation from defendants because they had written letters of request rather than “formal” notices to produce. It transpired that not one document had been despatched to any defendant and that the solicitors for Gunns’ had even refused to provide a Word version of the statement of claim.

The Bonge also gave short shrift to Irving’s protestations about the “enormous quantity of work” involved in providing further and better particulars before any strike-out applications or defences were filed. As the judge said:

“You cannot produce a 200 page statement of claim without saying, ‘We are going to have to do some work’.”

Dreyfus, for six of the defendants, pointed out:

“The plaintiffs have to resource this case. They have brought it, they have chosen to bring it against defendants and it has to be properly resourced.”

Justice Bongiorno ordered Gunns to provide further and better particulars by June 10.

The trial is yonks away and one wonders whether the Gunns directors realise quite what they have unleashed.