Hearsay ... the Journal of the Bar Association of Queensland
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Issue 83: Sep 2018
Case Note: Birketu Pty Ltd v Westpac Banking Corporation Print E-mail

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[2018] NSWSC 879

by Adrian Duffy QC 

Birketu Pty Ltd v Westpac Banking Corporation [2018] NSWSC 879

This recent decision of McDougall J in the New South Wales Supreme Court offers a timely reminder of the need for professionalism in dealings with opponents in litigation.

The case involved an application that a former solicitor for the plaintiffs not communicate directly with a number of persons who are in effect the principals or the employees of one or other of the plaintiffs, in relation to the proceeding and for as long as the plaintiffs’ present solicitors continue to act for the plaintiffs.

His Honour commenced by observing:

If this were a tale written by Beatrix Potter, it might be entitled The Tale of the Tempestuous Teacup . Unfortunately it is not a children’s story. It is a judicial decision made necessary by an application, peripheral to the real and significant issues involved in the substantive litigation, that appears to have arisen from a situation where on each side ego has triumphed over reason.

The application arose out of correspondence between the parties, of which, his Honour observed:

… whatever its original justification may have been, can be seen to have been ill-advised and intemperate, and to have become worse in tone and content as time passed.

The power relied upon for the orders sought was previously considered by the Court of Appeal in McGuirk v The University of New South Wales. In that case, Sackville AJA said at [144]:

No doubt a finding that the unjustified behaviour of one party has significantly increased the costs of the proceedings or inflicted hardship on the other party makes it easier for the court to conclude that the behaviour is likely to lead to delays and that orders curtailing the behaviour will assist in bringing about the speedy determination of the real issues in dispute. But that does not detract from the proposition that the language of s 61(1) requires the court to consider whether the proposed orders are appropriate for the purpose identified in the sub-section. If no such conclusion is or can be reached, the proposed directions are not authorised by s 61(1). The fact that the court must seek to give effect to the overriding purpose when considering whether to exercise the power conferred by s 61, does not allow the court to read s 61 as authorising any direction it thinks appropriate for the just, cheap resolution of the proceedings. Thus, s 61(1) cannot be read, for example, as authorising a direction that will have no bearing on the speedy determination of the “real ” issues, but might be thought to save some costs or avoid unnecessary distress to a party. …

And further, at [163]:

In my opinion, if a party to proceedings repeatedly sends gratuitously offensive or threatening communications to the other party or its legal representatives, it will not usually be difficult to conclude that it is convenient for the just, cheap and quick disposal of the proceedings to make directions or orders requiring the party to desist from such conduct. In particular, a finding that the party responsible for the communications is in breach of his or her duty under s 56(3) of the CP Act (as the primary Judge found in this case) would support such a conclusion. It will be even easier to reach that conclusion if the communications have caused distress or safety concerns to some of the recipients. In the circumstances I have described, it would generally be open to a court to find that the proceedings cannot be disposed of justly if a party cannot pursue or defend a claim, or its legal representatives cannot discharge their responsibilities to the client or the court, without being subjected to gratuitously offensive or threatening communications. An order or direction requiring the offending party to desist can aptly be described as an order or direction for the “conduct of the proceedings ”.

After reviewing the facts, his Honour considered that the case was distinguishable from McGuirk. His Honour concluded that there was no basis shown for making the orders sought. His Honour observed:

[35] … If it were possible, I would consider giving a direction that each side take a step back and a cold shower and then resume the civilised preparation of the litigation. But that is an order for which no precedent exists, and which I perceive to be beyond even the wide powers conferred by r 2.1.

The application was dismissed.

Adrian Duffy QC



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