A Thousand Miles from Care – 3

The latest episode of McLaughlin v Manly Dungowan, referred to in my previous post on this topic, has resulted in a decision against the McLaughlins, handed down by Justice Pembroke last week.

The opening paragraphs of the judgment give a foretaste:

1 The plaintiffs do not readily embrace the principle of finality of litigation. On 25 March 2011 I gave judgment against them. Subsequently on 13 May 2011, on their application, I exercised my discretionary power to re-open the judgment and permit a further limited hearing. I explained that limited basis in paragraphs [27] – [29] of my judgment given on 10 May 2011: [2011] NSWSC 384.

2 I set out my reasons for doing so at [33] as follows:

This is a marginal case for the exercise of the exceptional power to re-open a judgment and grant a re-hearing. I am exercising my discretion to do so partly because the unfortunate litigious history between the plaintiffs and the Company, suggests that, ultimately, it will be in the interests of justice if I do so; because it may limit the opportunities for further disputation if I go further than what I have so far done. I do not therefore think that I should limit myself to rejecting the specific declarations and orders which the plaintiffs seek. I should go further and do what I can to facilitate the resolution of the real issues. If necessary, I should give such further judgment or order, or provide such further reasons, as the nature of this particular case requires.

3 I now regret giving any further opportunity to the plaintiffs to litigate this dispute. They have abused the privilege that I granted to them and they have ignored the limited basis on which I exercised my power. Their submissions on the further hearing have canvassed and re-agitated, with rising intemperateness and indignation, the central conclusions of fact and law that I have already reached. In my judgment given on 10 May 2011, I stated explicitly that I was allowing a re-hearing only “so that the parties can put submissions as to what possible further declarations should be made, given the conclusions of fact and law that I have already reached.”

There is more:

Moderation & Restraint

30 This leads me to another matter that I feel compelled to address. It needs to be emphasised that the efficient conduct of commercial litigation, indeed all litigation, can only be assisted by restraint, moderation, sensible co-operation and sound judgment by counsel. Indeed the due administration of justice demands it. Written submissions, such as those of the plaintiffs, that are unduly lengthy, excessively detailed or unnecessarily tendentious, will often fail to advance the case of the party on whose behalf they are put. If that occurs, the interests of justice will not be served. The duty of counsel in this regard is part of the wider duty to the Court to which I referred in Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822 at paragraphs [19] – [22]. It is also a manifestation of the statutory duty imposed on practitioners by Section 56 of the Civil Procedure Act, 2005 (NSW).

31 In his article entitled “Reciprocal Duties of Bench & Bar” (2007) 81 ALJ 23, the Hon Justice J D Heydon AC explained how every aspect of modern litigation has tended to become “sprawling, disorganised and bloated”. That tendency, he explained, can be seen not just in pleadings, discovery, affidavits and cross-examination but also in “oral, and in particular written argument”. The plaintiffs’ written submissions on this further hearing illustrate the point. There were in total almost 50 closely worded pages. I have marked the plaintiffs’ three sets of written submissions Exhibits A, B and D. They referred to 59 separate authorities of which I was taken to virtually none in argument. The fact that they also ignore the limitations that I stipulated in my judgment given on 28 April 2011 considerably exacerbates the matter.

32 An additional problem is the absence of moderation in the tone, expression and delivery of the plaintiffs’ oral argument. This feature also deserves comment. The promiscuous use of extravagant language tends to obscure the value that may exist in the underlying submission. It is timely to repeat the compelling wisdom of the words attributed to Lord Bingham of Cornhill by Lord Mackay of Clashfern in his address at the Thanksgiving Service for Lord Bingham; The Times , 26 May 2011:

The effective advocate is not usually he or she who stigmatises conduct as disgraceful, outrageous, or monstrous, but the advocate who describes it as surprising, regrettable or disappointing.

33 The defendants’ submissions exemplified this approach. Regrettably, the plaintiffs’ submissions represented the polar opposite. No doubt they were delivered with the best intentions but they did not assist the efficient conduct of this litigation. They have prolonged it unduly.

And even more:

34 This dispute has now occupied an inordinate amount of time…Enough is enough. I am against the plaintiffs. They may not like the result but questions of contractual construction and statutory interpretation can sometimes be notoriously difficult and I have done my best. The law is not an exact science and on issues such as these, reasonable minds may occasionally differ. That is why an unsuccessful party has a right of appeal. Adherence to the principle of finality of litigation is of paramount importance in the administration of justice. The judicial system would become discredited if decisions were unduly subjected to further consideration. Litigants consumed by the uncompromising certainty of their own rectitude must accept the result, subject to their rights of appeal, and the exceptional but limited power to re-open.[reference omitted]

Actually, I think both paragraphs 32 and 33 (apart from the last sentence) are both irrelevant and impertinent observations on His Honour’s part. Oh, of course, in the “whispering” equity side we would prefer if outrage could be euphemistically described as regret and honey (or at worst Campari) rather than vinegar set the forensic tone. Then we could all feel so much better and not worry about the failure of the court to twig to the McLaughlins’ grievance when interlocutory relief was first and secondly sought and (with hindsight) regrettably refused.