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William Collins
28 November, 2005  
Notes from Yarraside

David Byrne J troubled by boots-and-all style of litigation … Justice Elizabeth Hollingworth drops the judicial language, for a moment


No trench warfare please, we’re co-operative litigators

David Byrne J, sitting in the Supreme Court’s Commercial List commenced his short reserved judgment in ANZ Banking Group Ltd v ANZCover Insurance Pty Ltd [2005] VSC 329 with a crisp observation:

“The parties to this litigation have again taken up their position in trenches which are separated by a distance just beyond voice range.”

The use of “again” suggests that when the trial gets underway early next year it will be quite a stoush.

The decision disposed of an interlocutory discovery dispute concerning legal professional privilege.

The trench warfare analogy arose from the inability of the parties’ representatives to agree on a timetable for completion of further steps necessitated by the delivery of an amended statement of claim in July.

Yes, it was a timetabling row, no less, which led to Byrne administering a thoroughly modern case management birching.

There is no substitute for the judge’s description of what had happened (or rather what had not happened) and his ensuing displeasure:

“When the matter was called on for hearing each side submitted a revised timetable. I was told that, although they had been sitting in court for some time while I dealt with another matter, there had been no attempt to discuss these dates. As a consequence, a good deal of court time recorded on nearly 50 pages of transcript was occupied resolving these details which, in other cases, are commonly able to be agreed. This proceeding is being conducted in the Commercial List. The failure of the practitioners to attempt to resolve the timetable issues is a contravention of paragraph 3.10 of the Commercial List Practice Note. I take this opportunity to remind the practitioners concerned, if reminder be necessary, of the expectation of the court that, in litigation of this kind, their role is to assist the court to resolve matters in a just and efficient way. This requires a degree of co-operation so as to avoid needless expense and delay.”

In this age of renewed faith in the beauty of the market as the all-purpose cosmic guiding force, one simple precept is often overlooked: there are winners and there are losers in the free enterprise system.

In the inherent blood-letting that is necessarily a part of the market process, many captains of industry expect their highly-paid lawyers to go into battle for them boots and all.

After all, is not besting your opponent the essence of the market and, thus, is not commercial litigation the apotheosis, as it were, of the market?

In their lay ignorance, they might well consider that the exhortatory terms of the Commercial List Practice Note is the work of an unreconstructed wuss.

* * *

Demon drink injunction

Appointed to the Supreme Court of Victoria last year Elizabeth Hollingworth also has an endearing way with words.

I specially like the early signs from her deployment of the vernacular.

In Re Waters [2005] VCS 443, she found that there were exceptional circumstances warranting the grant of bail to Rick Anthony Waters who had been charged with murdering his 70 year old father in early 1996 and had already spent 14 months in custody waiting trial.

imageThe accused’s application was skilfully advanced by a former local First Law Officer, James Harley Kennan SC (seen here). His client’s life had been a grim odyssey through a vale of tears.

The intake of alcohol was one matter of concern to her Honour as the following passage from her decision, with Mr Waters present in court, makes plain:

“I propose to make it a condition of bail that the applicant refrain from alcohol use at all times whilst on bail, and I will make him subject to random alcohol testing at the discretion of the officer in charge of the Springvale Police Station. That does not mean that when he attends three times a week he may only be randomly tested at that stage. He may be randomly tested at any time. Mr Waters, I expect you to stay off the grog, because alcohol appears to me to represent the most serious risk of you going off the good tracks you are currently on.”

“Stay off the grog” and keep on “the good tracks” – if only we could all abide by Hollingworth J’s wise injunction.