High Stakes Litigation: Highlights of the Victorian Bar and Law Institute of Victoria Joint Conference
The first ever Victorian Bar and Law Institute of Victoria Joint Conference, held on Friday 17 October 2014, was an opportunity for the profession and the judiciary to confront the complexities and challenges of modern high stakes litigation and dispute resolution.
Session 1: Keynote Address – Judicial Perspective on current developments and challenges in conducting litigation in the Federal and Supreme Courts
Chief Justice Marilyn Warren has been head of the Victorian Supreme Court for the last decade. In that time, the introduction of technology has both assisted and challenged the conduct of some of the most testing of cases. Prominent among those has been the Great Southern class action and the Kilmore East Bushfires class action, with their multiple parties and expert witnesses and mountains of documents. In the latter of these, steps were taken to ban trolleys and folders from the courtroom and, on the whole, the year-long trial was paper free. Indeed, the Chief Justice estimated that the use of technology had led to a saving of a third of court time.
Emboldened by the research, Her Honour confirmed the court was aiming to be paper free across all cases by 1 January 2016.
Her Honour spoke of what she termed the “litigation contract” accepted by those working in the courts. She spoke of the need for judges to strive to be courteous, civil, but firm, to be interactive listeners, and mindful that the ultimate consumer is the lawyer’s client. She reminded counsel of their need to be courteous to the court and opposing counsel and practitioners, to be succinct, to not take unnecessary points and to remind clients it is counsel who runs the case, not them.
Chief Justice Allsop of the Federal Court spoke of the challenges faced by Australia in the region to remain known for our first class legal profession and judiciary in commercial dispute resolution. His Honour decried the notion that there was some kind of competition with Singapore or Hong Kong, and emphasised instead the development of the international reputation of the region as a whole and its commercial centres in particular.
Chief Justice Allsop stressed the importance of courts investing in their procedures to this end. His Honour highlighted the recent advent of electronic filing as creating a foundation for the court moving to the next phase, wherein the court file will become the file of the practitioner.
His Honour then announced the restructuring and reorganising of the administration of the Federal Court into a truly national framework in which state registries will remain as administrative organs, but the business of the court will be managed nationally along 9 subject lines: appeals; administrative, constitutional and human rights cases; native title; industrial relations; intellectual property; taxation; admiralty and maritime; criminal & cartel trials; and the last broad category of commercial and company law (including international commercial arbitration, as well as regulatory and consumer work). Judges will be assigned to practice areas and travel around the nation to hear cases (which they already do for Full Court appeals).
Sessions 2 and 3: Cost Effective Management of Litigation/Overarching Obligations Under the Civil Procedure Act
There were some common themes across the next two morning sessions. The first was led by a panel including Justice James Judd (VSC), Allan Myers QC, Caroline Kenny QC, Allens Partner Louise Jenkins, Mallesons Partner Chris Fox and NAB Head of Dispute Resolution Raechelle Binny. The second included Justice Jack Forrest (who conducted the Kilmore East Bushfires Class Action), David O’Callaghan QC, Michael Wheelahan QC, Roisin Annesley QC and Allens Linklaters Partner Maryjane Crabtree.
Although the Victorian civil procedure legislation adopts a rather more elegant imprimatur than the NSW requirement to be “just, cheap, and quick”, there is no doubt that the introduction of the overarching purpose to ensure the “just, efficient and timely resolution of the real issues in dispute” has begun to generate a significant behavioural change in civil litigation.
Other measures of note include the aggregation of similar claims into representative proceedings (aka class actions). The minimisation of compulsory disclosure of documents (discovery) has reportedly reduced litigation costs by as much as 60%. The introduction of court-annexed mediation has also been a major addition to the arsenal of judges shepherding parties to earlier (and cheaper) resolution.
Discussion touched on the use and management of expert witnesses so as to minimise cost and time, including making arrangements for expert conclaves, joint reports and concurrent evidence by issue.
There was however some anxious discussion about the process which had resulted in the imposition of personal cost sanctions on legal practitioners for breach of the Civil Procedure Act overarching obligations (see Yara Australia Pty Ltd v Oswal  VSCA 337 and Hudspeth v Scholastic Cleaning  VSCA 78). Whilst commentators acknowledge the necessity for costs sanctions in appropriate cases, concern focussed on the lack of prior notice and summary treatment by the court, in circumstances where the issue – as it it touches the impugned practitioner – is more akin to a civil penalty regime for professional (mis)conduct than a mere matter of practice and procedure. (It is worth noting that most legal professional indemnity policies will not respond to adverse personal costs orders).
Session 4: Arbitration – an Australian and international perspective
Led by CiArb Australia President Albert Monichino QC, this next session included remarks from Justice John Middleton (FCA), Justice Clyde Croft (VSC), Martin Scott QC, Herbert Smith Freehills Partner Bronwyn Lincoln and Singapore based King & Spalding Partner Peter Megens.
There has been unmistakeable progress for arbitration in Australia in recent years. The modernisation and harmonisation of the legislative framework is all but complete, and the courts have resolved some important uncertainties and resolutely opposed public policy challenges to enforcement of arbitral awards (see eg TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd  FCAFC 83).
Speakers noted that recognition of Australia’s increased credibility as a venue for international arbitration was confirmed with Melbourne’s recent launch of a new facility for commercial arbitration and mediation, and Sydney’s announcement as the host city for the 2018 International Council for Commercial Arbitration Congress.
Practitioners were reminded of the need to make real and meaningful efforts if they wish to compete for Asian based arbitration work.
Session 5: Class Actions – The way of the future?
This next session included remarks by Justice Forrest and newly appointed Justice Jonathan Beach (FCA), Ross Ray QC, Tim Tobin SC and Freehills Partner Ken Adams.
A highlight of this session was provided by remarks by Adams, who often acts for corporate defendants to class actions. He raised three principal “unknowns” when advising his clients. The first challenge concerned identifying who was claiming, since class closure usually does not occur until 12-18 months into the proceedings. The second concerned evaluating the quality of claims. Subgroup representatives are rarely appointed, and he recommended the abolition of the cost hurdle to foster more use of this device so as to get a better sense of those claims lying behind the lead plaintiff. The third concerned advice on quantum: because of the bifurcated approach of liability then quantum determinations, any proposed compromise sum risked being a crude guess, which was unsatisfactory for boards with obligations to shareholders and insurers with their own obligations to loss reinsurers.
Session 6: The Role of the Regulators in Enforcement and Litigation
This was one of two concurrent sessions (the other was on Litigation Funding). Panellists included ACCC General Counsel Wendy Peter, ASIC Chief Legal Officer Michael Kingston, Fiona McLeod SC, Norman O’Bryan QC, Minter Ellison Partner Ross Freeman and AGS National Group Leader Matthew Blun.
As someone who has advised and appeared as counsel both for and against regulators, one becomes quickly conscious of the need to discharge the many additional obligations imposed when asked to evaluate the commencement and prospects of any enforcement action.
Both Wendy Peter and Michael Kingston emphasised the detailed and comprehensive process of case review and consideration that regulators undertake in making their case selection. Factors taken into account include not only the agencies’ overriding statutory purposes, but whether there is sufficient admissible evidence available to prove the case, and what plausible explanations there may be for the impugned conduct, including any likely defences. Fiona McLeod SC went on to emphasise the need for those advising regulators to have special regard to public interest considerations (such as general deterrence) and both she and AGS’s Matthew Blun pointed to the need to identify applicable enforcement policies and the role of the Commonwealth’s Legal Services Directions (especially the Model Litigant rules).
Other issues canvassed by the panel included a concern that compulsory examination of directors by liquidators will be used as a springboard to regulatory action for pecuniary penalties and banning orders (see the discussion in Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq)  VSCA 182); the recent trend of compensation claims being left by regulators to private funders; and finally, what I have long decried as the “nationalisation” of discovery costs, the (cheap) access by class actions to the fruits of a regulator’s exercise of compulsory powers for production of documents and examination.
Concluding Session: the collision of Public Relations and the Law – managing strategic legal and PR objectives
The extent to which lawyers should take an active, public role in articulating their client’s case was debated by the final expert panel – none of whom could be described as wallflowers.
Arnold Bloch Leibler Partner Leon Zwier led the charge, advocating the need and appropriateness of adapting and modernising our traditional approach of dignified silence. He highlighted instances where uninformed media reporting had adversely affected reputation of corporations and their officers, and the virtue of framing a client’s position in the media as a means to affect the ultimate course of the litigation. Zwier illustrated with the case of Richard Pratt, and the telegraphing of his intention to “apply the blowtorch to Graeme Samuel’s ACCC” prior to his death.
Defending the charge was criminal lawyer Tony Hargreaves, who confirmed his view that a lawyer should not generate publicity about their client. He cautioned against anything more than a brief statement encompassing a mea culpa, expressing regret to the family, and asking for privacy. He placed his comments in the context of his basic distrust of the media and warned of the risk of public comment generating admissible evidence which may be subsequently used against the client.
Robert Richter QC observed that the differing opinions of Zwier and Hargraeves could perhaps be explained by their different client types. He went on to tease out some of his “rules” – questions to ask when considering crafting any “reputation” defence:
– whose reputation are you trying to protect – the corporation or an individual? If the latter, is the individual’s reputation salvageable or will the taint stick?
– what is the cause in issue?
– what stage are we at? The best option -for now – may be silence.
– do I know enough about the issue?
– is the problem a legal or political problem?
– what is already out there? Can it be decisively rebutted by a public statement, or is it better to give no oxygen but a proper background?
– will anything put out to the public come back to bite you? Consider the risk of generating admissible evidence/false denials.
– have I appreciated the ultimate endgame?
– finally, is it ethical?
The final comments were delivered by Julian Burnside QC, who of course has become a well known public figure and often appears on programmes such as Q&A. He thought backgrounding “makes perfect sense” but was firm in his view that barristers should not be talking about their cases. He noted that barristers talking to the media more generally was now accepted as part of our popular culture, and emphasised his position that if one has learnt matters of public importance in the course of their career, counsel has a duty to speak, indeed to speak up.
The day’s concluding remarks were delivered by MC and Chairman of the Victorian Bar Will Alstergren QC, who adjudged the conference a success and invited the Victorian Attorney-General Robert Clark to deliver the Closing Address. The Attorney emphasised the need for the court system to efficiently resolve difficult and high stakes cases such as those generated by the bushfire disasters. He talked of the need for collaboration between all parts of the profession and courts. He had that day jointly announced with NSW Attorney-General Brad Hazzard the inaugural members appointed to the newly established Uniform Legal Services Council, and he again lauding the need for consistency of regulation between jurisdictions.
This was a great opportunity to meet up again with friends and colleagues and devote some time to analysing the changing context in which we work. The issues canvassed at this Victorian conference occur throughout Australia. The challenge continues for Australian courts and practitioners to embrace technology, mobility and adaptability so as to better effect quicker and affordable access to the resolution of disputes.
19 October 2014
Dominique Hogan-Doran is a Sydney-based barrister and an interstate member of the Victorian Bar. She specialises in complex corporate and financial dispute resolution, regulatory action and public inquires. She is a member of the NSW Bar Association’s Costs and Fees Committee and its Working Party on the Productivity Commission’s Inquiry into Access to Justice Arrangements.
This article first appeared on Dominique Hogan-Doran’s blog hogandoran.com.