FEDERAL COURT OF AUSTRALIA

White v Overland [2001] FCA 1333

practice and procedure – efficient and proper conduct of civil litigation – general principles – responsibility of parties to ensure that litigation not proceed on misconceptions or apparent false assumptions

Jackamara v Krakouer (1998) 195 CLR 516 referred to

Scott v Handley [1999] FCA 404 referred to

Peter White v Simon Overland and Michael Keelty

No A 39 of 2001

ALLSOP J

20  SEPTEMBER 2001

SYDNEY

REASONS FOR JUDGMENT

1                     These reasons contain rulings on an affidavit of the first respondent dated 27 August 2001.

2                     This matter was heard in the week commencing Monday 20 August 2001 in Canberra together with the matter of Eaton v Overland and Another (A28 of 2000, judgment reserved).  During the course of hearing in this matter (the White matter) an issue arose as to events in early June 2001 providing the foundation for the proposition that the first respondent, Mr Overland, had in fact made a further decision, not subject of attack in the existing application, which made moot the whole of the proceedings.

3                     The further decision was one which the applicant said was impermissibly based upon without prejudice communications.  I will not traverse the history of the rejection and then the acceptance of those without prejudice communications into evidence during the course of the hearing.  Suffice it to say for present purposes that an amended application was sought to be filed and leave was granted for its filing.  This amended application sought to attack the decision made, or said to have been made, in early June 2001 on the basis of the matters raised in the amendment, principally that it impermissibly was founded on without prejudice communications.

4                     The respondent sought time to put further evidence on in relation to the communications of late May and early June which were said to found the without prejudice communications.  I granted that leave over the objection of the applicant and brought the matter back for directions on the 28 August 2001 to assess whether any further evidence proposed would cause difficulties in the further conduct of the matter.  In particular, I had in mind the question as to whether any of the legal representatives of the applicant would have to cease acting to become witnesses.  The applicant’s solicitors and counsel have considered the affidavit of Mr Overland dated 27 August 2001 and have informed the Court that even if it is accepted in its entirety into evidence there will be no need for anyone to return his brief or terminate his or her participation in the case.  As I indicated on 28 August, this made it unnecessary for me to consider the question of who should bear the costs caused by any such dislocation.  It will be necessary to deal with additional costs brought about by the amendment and the short adjournment.  I will deal with this in my final judgment.  However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are.  Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly.  Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said.  Litigation is not a game.  It is a costly and stressful, though necessary, evil.  To paraphrase Roscoe Pound from “The Causes of Popular Dissatisfaction with the Administration of Justice” (1906) 29 ABA Rep 395, 404-406, the “sporting theory of justice” and any behavioural manifestation of it should be seen as a survival, or better, a relic, of the days when a lawsuit was a fight between two clans: cf Jackamara v Krakouer (1998) 195 CLR 516 at 526-527 per Gummow and Hayne JJ.  Representatives do not owe duties to the other side’s client.  They owe duties to their own client.  But no one’s interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false.  This is very much the case when an issue, if it is to be propounded, might endanger the instructions of those acting for the other side.  In saying this I need make no reference to the well-known responsibility of the Crown and emanations of the Crown to act at all times as model litigants beyond referring to what was said by the Full Court of this Court in Scott v Handley [1999] FCA 404 at [43] ff.  I would expect no less than that which I have indicated of bitterly competitive commercial parties in the hardest fought of cases.  In the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone.

5                     The affidavit of the first respondent dated 27 August 2001 is sought to be relied upon by the respondents.  I have received submissions concerning the admissibility of that affidavit and I propose to rule on it in these reasons.  The matter is one of the admissibility of evidence.  I take the view that elaborate reasons are not required.

6                     The first objection taken is that the affidavit should be rejected in whole because it does not comply with the leave which I gave and does not add anything further to the evidence led at the hearing.  I do not accede to this submission.  While I think the affidavit goes little beyond what inferences I could otherwise draw from the existing evidence, I do not propose to reject it entirely on this basis. 

7                     Particular objections are thereafter taken.  I deal with them as follows.  Paragraph 4 is objected to on the basis that it seeks to introduce evidence outside the leave granted and seeks to attempt to introduce evidence as to the state of mind of Mr Overland.  I propose to admit the evidence.  The existence of the so-called state of mind of Mr Overland I take as evidence of the course of the decision-making process.  On that basis I will allow it.

8                     Paragraph 8 is objected to as once again seeking to introduce Mr Overland’s state of mind.  Once again I propose to allow the evidence on the basis of displaying the course of the decision-making process.

9                     Paragraph 10 is objected to in particular again on the basis of displaying Mr Overland’s state of mind.  I propose to allow it on the same basis.

10                  Paragraph 11 is objected to.  Again I propose to allow it as revealing the course of the decision-making process.

11                  Paragraph 13 is objected to.  I reject the paragraph other than the first sentence.  The witness is merely describing the content of documents and such matters as he identifies concerning his state of mind do not assist in understanding the course of decision-making.

12                  Paragraph 14 is also objected to.  I reject the second sentence.  As to the balance of the paragraph, which might be said to deal with his state of mind, I allow it on the basis that it describes the decision-making process.

13                  Paragraph 15 is objected to.  The first sentence is merely chronology.  I allow it.  I reject the balance of the paragraph.  Though it is couched in state-of-mind terms and as such could possibly be supported as describing the process of the decision-making, it is better analysed simply as describing the contents of the letter.

14                  Paragraph 16 is objected to.  I reject this paragraph.  The state of mind there referred to does not assist in the understanding of the decision-making process.  The taking of legal advice does not advance the matter and is irrelevant.

15                  Paragraph 17 is objected to.  I allow it as describing the course of the decision-making process.

16                  Paragraphs 18 and 19 are objected to.  While the documents are already in evidence, I will allow them.

17                  If the applicant, in the light of these reasons, wishes to further cross-examine Mr Overland I should be informed of this promptly so that arrangements can be made for that to occur.  If I have not heard from the parties within seven days I will deal with the matter on the basis that each party has closed his case and the matter is reserved.

Associate:

Dated:              20 September 2001