CREATIVE LITIGATION

CREATIVE LITIGATION
Julian Burnside Q.C.

(A Paper presented to the APLA State Conference, Lorne – 14-16 May 1999)

Lawyers generally have a reputation for being blinkered, dull and pedantic. In the taxonomy of charisma, we generally rank somewhere between bank tellers and undertakers.

Of course, this is wholly unjustified and has come about only because of the way we behave. For example, consider the way lawyers draft documents. We generally fill documents (even straightforward documents) with chunks of tortured boilerplate; we use language which has a closer affinity to the King James’ version of the Bible than to contemporary English. In the memorable words of Brooking J. in FAI Traders v. Savoy Plaza ([1993] 2 VR 434):

“the lease of the Savoy tavern in Spencer Street suffers from the corpulence which seems to afflict all hotel leases. It runs for some 60 pages. When we open it, the lease exudes the faintly musty smell we have come to associate with leases of hotels. Cesspools and distemper, graining and varnishing, are preserved in its covenants as reminders of a bygone age.”

Not only do we use antiquated language, but we seem also to excel in so twisting our thoughts that the thicket of words becomes impenetrable even to the most intrepid travellers. Lord Justice MacKinnon might have been referring to almost any lawyer’s effort when he wrote (in Winchester Court Limited v. Miller (1944) 1 KB 734 at 736):

“He must be a bold, if not a conceited man who can feel confidence in forming, or expressing, an opinion on any one of the innumerable problems that arise out of what may be cited together as the ‘rent and mortgage interest restriction acts’ but, having once more groped my way about that chaos of verbal darkness, I have come to the conclusion, with all becoming diffidence, that the County Court Judge was wrong in this case. My diffidence is increased by finding that my brother Luxmoore has groped his way to the contrary conclusion.”

It is a commonplace that affidavits and pleadings are typically couched in language so opaque as to serve to conceal rather than display the draftsman’s ideas (if he had any).

Simple propositions become contorted and encrusted to the extent that reading them becomes unpalatable, and finally impossible. Oddly, members of the public regard this as a mark of dull pedantry on the part of lawyers.

The average lawyer’s lack of imagination is not confined to their homicidal assaults on the language. In choice of strategy, many lawyers demonstrate a pedestrian way of thinking. Not just in our documents, but also in our strategic thinking, lawyers tend to err on the side of dullness.

Consider the following, which I suggest might be the template on which a large proportion of modern litigation is based:

A couple decide to buy a milk bar. They make enquiries at the local estate agent. He takes them to a newly developed shopping centre and assures them that Shop 13 is ideal for their purposes, because there will be 5,000 people a day passing through the shopping centre, and theirs will be the only milk bar in the area. It turns out to be the case that he has just that day signed up two other tenants to operate milk bars in the same centre, and the week before he received from the developer a recent demographic survey demonstrating that the freeway recently opened nearby will divert almost of the passing trade away from the shopping centre, accordingly no more than a thousand person per day are likely to visit the shopping centre in the foreseeable future.

When the venture fails, as it must, the plaintiffs have lost $40,000 lease payments and have earned $25,000 less income than they had budgeted for.

In the hands of many lawyers, this fairly commonplace set of facts results in a Statement of Claim which claims relief as follows:

Misleading and deceptive conduct in contravention of the Trade Practices Act.
Misleading and deceptive conduct in contravention of the Fair Trading Act.
Unconscionable conduct in contravention of the Trade Practices Act.
Misleading conduct in relation to an interest in land in contravention of the Trade Practices Act.
Negligence.
Breach of fiduciary duty.
Contravention of various provisions of the Estate Agents Act.
Allegations of aiding and abetting counselling and procuring are made against the employee of the real estate agency, the developers, directors of the development company, the owners of the site and directors of the company which owns the site.
Damages are claimed which are referable to an inflated estimate of earnings for the next 150 years and punitive and exemplary damages are also sought.

The Statement of Claim, needless to say, is a work of the pleader’s art; it is a treasure trove of convolution, hyperbole and repetition. We have all encountered such documents.

Because we have all encountered such documents, the solicitors for the various sets of defendants understand perfectly well the substance of what is alleged against their respective clients. Nevertheless, they foreshadow at the first directions hearing that they will bring an application to strike out the Statement of Claim. With numerous sets of Counsel to be heard debating the precise meaning of each phrase in 60 tightly packed pages, it is little wonder that the strike out application takes weeks to prepare and days to argue.

More in pity than in anger, the Judge determines that numerous paragraphs of the Statement of Claim should be struck out.

The Plaintiffs now retain Senior Counsel, since all the Defendants have retained Senior Counsel. She wrestles with the pleading and (having close regard to the terms of the judgment striking out various parts of the Statement of Claim) manages to improve the pleading substantially. This of course does not satisfy the Defendants, who again seek to strike it out. After another expensive argument, further deficiencies in the Statement of Claim are detected and duly remedied.

Pausing here, the process has consumed in total something between three to six months’ elapsed time (depending on the availability of Judges) and six or eight days in Court. The total cost is approaching $100,000. The fact that this exceeds the true loss of the Plaintiffs is a matter of sublime indifference: after all, the true case which was always apparent to everyone has now been pleaded in such a way that the true case is apparent to everyone. If there were any aspects of the Statement of Claim which were real sources of difficulty, the Defendants have helped the Plaintiffs sort out those difficulties, so that the Plaintiffs have the inestimable advantage of having clarified their own thinking about their case.

We have all seen this happen.

It is very common to see defendants mount repeated assaults on a Statement of Claim. No pleading is ever perfect. A pleading should be struck out if it is truly incomprehensible or if, on any reasonable reading of it, it discloses no cause of action known to the law.

It is a very different matter, however, to say that because a paragraph in a Statement of Claim is capable of bearing more than a single meaning, that you should seek to strike it out. First, it may be that the alternative meanings available are sufficiently close to each other that it makes no difference which is the true meaning intended. Second, it may be that one of the meanings available on the face of the document is so absurd that any reasonable reader would understand that the other meaning is the meaning truly intended. Third, the English language is riddled with words which bear more than a single meaning. It is difficult to construct a paragraph in which you cannot find nuances of language which produce ambiguity. This being so, the question for the Defendant’s lawyer is not “can we find any ambiguities in the Statement of Claim which we can attack?”, but rather “what will be achieved by attacking the Statement of Claim?”. In most cases, the only thing achieved by attacking the Statement of Claim is that the Plaintiff’s thinking becomes increasingly focussed, and their way of putting their case becomes more effective as its nuances are explored in the course of a strike-out application. It is difficult to see what line of reasoning dictates the strategic approach so often seen.

One other example will suffice to illustrate the point that litigators very often adopt strategies which can apparently serve no objective beyond improving their opponent’s hand. A few years ago in Melbourne there was a very large scale litigation involving many parties and a huge number of lawyers. The case was complex although, in its essentials, it was fairly straightforward. There was a huge number of documents. The subsidiary factual issues had grown exponentially as various teams attacked and counter-attacked pleadings, pursued further and better discovery, sought further particulars and generally kicked up an immense cloud of dust as lawyers tend to do. By the time the matter was brought on to trial, a number of the Defendant’s teams were in disarray because the amount of material was so great as to be beyond manageable proportions for all but the very largest firms.

By contrast, the Plaintiff’s team was well resourced and well organised. After all, they were driving it. They had spent millions and millions of dollars in preparation for the case. Because of the complexity of the facts, it might reasonably be expected that the case would take several days to open. A Plaintiff with a streak of nastiness might have tried to compress that opening, while keeping it sufficiently comprehensive that the Judge could understand the landscape.

What the Plaintiffs did in fact was to open with more detail than I have ever seen in any opening before or since; they opened with more detail than has been seen in any other case in legal history as far as I am aware. Whilst the Nuremberg war crimes trials took 2 days to open, the Plaintiffs’ opening in this litigation lasted ten weeks!

The opening was a masterpiece of organisation. All of the material had been brought together in such a way as to give a highly structured and yet highly detailed and comprehensible survey of the entire case. It must be conceded, that after the first few weeks the opening lost its “first fine careless rapture”, and that by the end of ten weeks it had developed a grinding momentum of its own. All that said, it was still a model of organisation and clarity. At the end of the opening, every Defendant’s team was fully versed in every aspect of the case: the Plaintiffs had helped the Defendants to an extent that was inconceivable: they had in fact helped the Defendants prepare their own cases.

At the time, I wondered about the strategic sense which dictated a course so advantageous to the Defendants. I still can’t see it.

Now, having spent a good deal of time criticising lawyers for being dull, pedantic and poor strategists it has to be said at once that there are some notable exceptions: All members of APLA are free of these vices (as I am instructed). Lord Denning’s judgments are famously readable. The late, lamented Neil McPhee, Q.C. was one of the great strategists at the Bar; the Honourable Tom Hughes, Q.C. has a well earned reputation for style, wit and a colourful way in cases. Geoffrey Gibson of Blake Dawson Waldron writes professional letters which are literary masterpieces. Nick Styant-Browne of Slater & Gordon rejects most of the orthodoxies of litigation and is one of the best litigators I have encountered. Judge Gebhardt writes poetry; Brian Kewley is a painter. Jeff Sher, Q.C. does things his own way and with striking success, and we can all think of others who have shaken off the stereotype. But they are exceptions.

Look at the matter differently: there are about 9,000 lawyers in Victoria; could anyone here name even 5% of that number whom they would regard as interesting litigators or good strategists, or capable of drafting legal documents which are readily understood and even interesting to read? Inevitably, we are judged by the qualities of the 95%.

It seems to me, that there is a real role – indeed a real need – for creativity in litigation. I would like to use, as an example, the litigation between the Maritime Union of Australia and Patrick Stevedores which occupied so much attention in the first half of 1998. The case was a good example of creativity in a number of different ways. Perhaps it was an illustration of the idea that desperate circumstances focus the mind. Certainly, the circumstances of the MUA were desperate on the 8th April, 1998 when members of the Union were excluded from Patrick’s premises around the country and security guards with balaclavas and rottweilers took their positions to protect scabs who had been taken on to replace the MUA members.

The litigation had begun early in 1998. When the Dubai mercenaries had been exposed, and Patricks leased Webb Dock No. 5 to entities associated with the National Farmers Federation. The MUA sued Patricks, the NFF and others alleging various contraventions of the Workplace Relations Act and conspiracy to injure. Pleading a conspiracy is a bit like spotting an iceberg. It is axiomatic that there is more beneath the surface. It is very hard to know in advance just how much is beneath the surface.

One of the first instances of creative thinking in the MUA case is the way the legal team was put together. Josh Bornstein of Maurice Blackburn & Co. was the solicitor who had the primary conduct of the matter. His expertise is in industrial relations. Not surprisingly, he initially engaged two industrial relations barristers, Herman Borenstein and Mordy Bromberg. As the matter escalated during February 1998, it became apparent that the team needed to be expanded. It was at that time that I was added to the team.

On any view, I was a surprising choice, since I had no industrial relations’ experience and no discernible political leanings. As Josh tells the story, a number of people were hostile to the idea that I be briefed. When things became even livelier in April, Michael Gronow and Peter Fox were added to the team. They are both very junior barristers with strong commercial experience in their former lives as solicitors. Again, they might be regarded as unusual choices for a case that was seen primarily as an industrial relations case. Jonathan Kramersh of Holding Redlich was brought in subsequently to help with commercial law aspects of the case which emerged and Jim Peters of Counsel was brought in for the same reason.

I should also mention that Josh got tremendous help from Josh Bornstein’s Administrative Assistant, Rebecca Curren; who was a still, small voice of calm in the storm.

The result was a very eclectic team of lawyers who would never have imagined they might work together as a single team, and some of whom might never have imagined that they would be acting in the interests of a union, let alone a union with the MUA’s history.

Josh Bornstein had given a great deal of thought to each additional member of the team. He consulted carefully before each additional member was chosen. The result was an extraordinarily good fit. Each member of the team brought to bear on the case their somewhat different skills, knowledge and experience. None of us could have done the case alone, but together we felt invincible.

The development of the legal team very often does not often involve very much strategic thinking. It has to be conceded that the MUA litigation was an extreme case. It is worth bearing in mind that from the 8thApril when security guards took control of the wharves and administrators took control of the Patrick’s employment companies until the 4th May when the High Court upheld North J’s injunction, we worked every single day and we were in Court almost every working day. We worked together through Easter; we worked together every weekend; we worked very long hours and we worked to extraordinarily tight deadlines.

It is worth remembering the chronology of events:

7 AprilAdministrators appointed to Patricks labour-supply companies, at 7 pm;

8 AprilMUA members locked out at 2 am; injunction application at 10.15 am;

injunctions granted at 4 pm to last 7 days; matter adjourned for 7 days, because of Easter

9 AprilWe learn of the corporate restructure which paved the way for appointment of Administrators;

Fri 10 April Good Friday; all Easter we prepare a new Statement of Claim to accommodate the newly discovered circumstances;

15 – 17 April Argument on injunction continues before North J;

Tues 21 April 10.15 am North J delivers judgment, and grants injunctions pending trial; 3 pm, Full Court convenes by video link (Wilcox J in Sydney, von Doussa J in Adelaide; Finkelstein J in Melbourne); they stay the orders of North J pending appeal;

22 & 23 April Full Court Appeal is heard; judgment given at 6.50 pm; at 9.30 pm, Hayne J in the High Court grants a stay of the Full Court’s orders pending special leave application;

Fri 24 April Hayne J gives directions for hearing of special leave application; stay on Federal Court orders continues;

Mon 27 April High Court appeal begins before bench of 7 in Canberra;

Thurs 30 April High Court reserves decision;

Tue 4 May High Court upholds North J’s decision.

As an example of the pressures of the case, on the night of Thursday, 23 April, the Full Federal Court dismissed Patrick’s appeal against the judgment of North J. At 10 o’clock that night, the High Court stayed the orders of the Full Court and announced that the High Court would hear Patrick’s appeal in Canberra on the following Monday. On the morning of Friday, 24 April, Hayne J. directed that Patrick’s outline of argument be delivered to us on Saturday and that our outline in response should be delivered to Patricks and the Court on Sunday afternoon. Although, in form, Patrick’s application was for special leave to appeal, Hayne J. warned the parties that the hearing on Monday may be regarded as the appeal itself. Those of you who are experienced in running High Court appeals will appreciate the exhilaration of preparing the appeal and filing the papers during the course of a single weekend.

That level of pressure characterised the litigation from the grant of the first injunction to the disposition of the High Court appeal. Not once during that time did any member of the team show any sign of bad temper or respond badly to the stress. On the contrary, there was regular joking and laughing and a general sense of high spirits more suited to the end of term at school than to the most intense and desperate litigation any of us had ever experienced. I am confident that in large part this was due to the careful and thoughtful and creative selection of each individual member of the team.

The next feature of the case which was notably creative was that, although the case was primarily an industrial case, Herman Borenstein suggested that a plea of conspiracy to injure was available.

Conspiracy to injure is a rare tort. Its legal characteristics emerged in the late 19thCentury and have been fashioned progressively by the Courts in response to changing social circumstances and changing judicial attitudes.

Conspiracy to injure has two forms: conspiracy to injure where the predominant purpose of the conspiracy is the infliction of injury and conspiracy to injure by using unlawful means. The “predominant purpose” conspiracy is a strange animal, because it makes actionable, when done collectively, things which would not be actionable if done by one person alone.

Conspiracy to injure by unlawful means is also a strange creature because it makes actionable concerted behaviour which happens to involve unlawful acts, even though the remedies for those unlawful acts might be quite different from or less effective than the remedies available for a conspiracy to injure.

It is interesting to reflect on the fact that conspiracy to injure emerged in 19thCentury jurisprudence as a response to the growing trouble caused by organised labour. Herman Borenstein’s creative idea was to turn the weapon back on the forces which created it.

Another aspect of the case which involved some creative thinking – at least to the extent of avoiding a knee-jerk response – turned out to be one of the decisive moments in the case.

By early April, the litigation was dragging its way through the usual succession of strike-out applications. The Dubai exercise had been exposed; Webb Dock No. 5 had been leased to companies associated with the NFF; injunctions had been granted by the Supreme Court to restrain MUA members from picketing Webb Dock No. 5. Otherwise, it was apparently business as usual.

Increasingly however, there were disturbing rumours that “something was about to happen”. An informant, who had no great track record for reliability, insisted that everything was going to happen during Easter, which was then one week away. He insisted that Patricks were going to sack everyone. We got together on the Friday before Good Friday to see what all this might mean, and the view amongst those with industrial expertise was that the sacking would inevitably be followed by reinstatement and therefore seemed a futile step.

On the other hand, we reasoned that if Patricks went out of the business, then reinstatement would not be possible. But how could Patricks just go out of business? One method which occurred to us was that Patricks might sack the workers and simultaneously sell their assets and undertaking to another entity in the Lang Corporation Group. In those circumstances, Patricks would get away with the sacking and the new entity would be free to employ whoever it wished. This line of reasoning, coupled with the information we had been receiving and coupled with Corrigan’s refusal to give clear undertakings about his intended course of action led us to conclude that we had enough evidence to justify seeking an injunction to restrain Patricks from sacking the employees and to restrain them from disposing of their assets. We resolved to issue a motion the following Monday, returnable on Wednesday, seeking those orders. It was an unorthodox response: certainly, Patricks had not expected it.

As Australia awoke to the morning news on Wednesday, 8th April, 1998, they learned that Patricks had sacked its entire waterfront workforce during the course of the night and that masked guards were now in control of the wharves. They had, it seemed, done one of the things which we were seeking to have the Court restrain them from doing.

In Court that morning, we learned that administrators had been appointed to the labour-supply companies, because labour supply agreements had been breached. None of us understood the reference to labour-supply companies; none of us had ever heard of the labour supply agreements. Patricks argued that we were not entitled to proceed in litigation against companies under administration; they argued that it was too late for the Court to do anything. We all sensed that we had fallen into an abyss, and all around was dark.

But there was one ray of hope. Courts are very astute to see that their authority is not nullified by sharp practice. In those rare cases where litigants have tried to forestall the judgment of the Court, Courts have acted decisively in restoring the position that existed before the Defendant’s precipitate action. We found a case where the Plaintiff issued a motion to restrain his neighbour from continuing to build a wall between their properties in such a way that it would deprive him of his light. Whilst the motion was pending, the Defendant engaging extra workers and completed the wall overnight. When the Court learnt of this, it ordered that the building work which had been done after the issue of the motion should be taken down pending trial. This was very similar to our own case. Patricks had tried to forestall the decision of the Court on the injunction application by acting quickly. For a short time, we were gratified that at least they had not disposed of their assets as well. It was another three days before we learned that the labour-supply companies had disposed of their assets 6 months earlier.

As it turned out, the Patrick labour-supply companies had not sacked their workers. What they had done was to move their operations into different companies the previous September, so that the labour-supply companies had nothing but a workforce and a contract to supply that workforce to other entities. On the night of the 7th April, what they had done was to terminate the labour supply agreement, which left the workforce with no work to do; it looked very much like a sacking. But technically, the workers were still employed by the labour-supply companies, even though they had no work to do.

North J. granted an injunction until the Wednesday after Easter to restrain the labour supply companies from dismissing the employees. This was crucial, since the prospects of having the employees reinstated would have been extremely bleak, given the position the companies were then in. During Easter, the team worked like people possessed to put together a new Statement of Claim which accommodated the facts which had so recently and dramatically come to light. The pressure of circumstances effectively guaranteed that the Statement of Claim would be confined to the central matters in dispute; we resisted the temptation to proliferate causes of action. Added to this, we were driven by a sense of outrage which was shared by most Australians.

There is a further aspect of the MUA case which showed real creativity. You will readily appreciate that the mood amongst the sacked unionists was not good. They had a profound and legitimate sense of grievance. The union leaders, notably John Coombes of the MUA and Greg Combet of the ACTU showed remarkable skill in restraining the response of the disaffected workers. This was strikingly illustrated in at least two instances.

First, when the first injunction hearing came on and it emerged that administrators had been appointed to the labour-supply companies, it was immediately obvious that it would be very helpful if the Applicants could give an undertaking to avoid the risk that the administrators would be personally liable for their wages. Under the Corporations Law, administrators are personally liable for debts incurred by them. It was clear that there was no work for the employees to do, and yet we sought an injunction to keep them on the payroll. There was no immediate prospect that the Patricks operating companies would pay anything to the labour-supply companies. Without the employees undertaking that they would not look to the administrators for payment, the balance of convenience would very likely tip against the grant of an injunction. The union organisers very quickly appreciated the force of this proposition, and very quickly gave instructions to give the undertaking. It was a remarkable performance.

Second, on the evening of 23 April 1998 the whole of Australia watched as Wilcox J. delivered the judgment of the Full Court live-to-air on television. So intense had interest become that all stations continued the broadcast through 7 o’clock, thus interrupting their ordinary programming. The workers had then been shut out for over two weeks. Their jubilation on hearing the result was tremendous. There was a universal sense of relief and exultation that two Courts had now said that they could go back to work.

Within a few hours, however, Hayne J granted a temporary stay of the Full Court orders, pending an application for special leave to appeal to the High Court. This was a sharp disappointment which dashed the hopes of hundreds of workers who had been locked out of their workplace in such dramatic circumstances. There was a real and serious risk that they would react violently. Many thousands of supporters had gathered at the wharves in support of the workers; the potential for serious civil unrest was enormous. Again, the union leaders managed to maintain order despite the high emotions of the occasion. Again, it was a remarkable performance.

Litigation such as MUA v Patrick Stevedores does not happen often. Difficult circumstances call for daring responses, and no doubt this emboldened us. But the fact remains that there is scope for creativity and imagination in all litigation. Quite apart from the fact that you will probably improve your success rate by thinking creatively, it makes litigation a much more rewarding and entertaining pastime.

Who knows, some day the public may even start to think of lawyers as interesting.