One of my hobbies, albeit a hobby reserved for those times when I am of a particularly low mood and badly need cheering up, is to read decisions of various courts. Of particular interest is High Court decisions, but I am catholic in my tastes and have been known to read decisions of all sorts of courts and tribunals, both from Australia and overseas.
I also enjoy reading transcripts of high court hearings, which often produce some funny exchanges. Back in 2002, Mr Theodore Rout represented himself before the court in an effort to ... well I’m not exactly sure what he was trying to do. Certainly establishing that the speed of light is not a constant was part of it and something about dividing by zero was part of it too. You can read the whole transcript for yourself here.
On other occasions the humour is more subtle, but no less entertaining. Justice Murphy's wry observation that "The crushing burden of taxation is heavier because of exemptions in favour of religious institutions, many of which have enormous and increasing wealth." ( [1983] HCA 40; 1983 154 CLR 120).
Then there was this exchange in the High Court;
MR STUBBINS:
Your Honour, it is restricted to the extent of the principle that a man’s home is his castle, it is his fortress, and unless it is unambiguous and unmistakable - - -
KIEFEL J:
I was hoping you would not say that, I thought we would hear about the vibes.
MR STUBBINS:
Yes, your Honour, I refrain from that angle obviously, your Honour.
Today though, I want to apprise you of a case that was heard in the Federal Court in 2012. The fun citation for the case is “Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282” and you can find it by clicking on the link.
If you have some sort of legal training, you might just want to go to the link and read the judgement, it’s a fascinating read, but for the rest of you, I’ll explain what’s happening.
The case involves two companies, Superior IP - a technology form of some sort and Ahearn Fox - a firm of patent attorneys. Superior IP had instructed Ahern Fox to file for patent for “an improved connector for timber” in a variety of countries. Ahearn had done the work and issued invoices, which Superior had, in part at least, declined to pay. Which is to say that the invoices were part-paid, but not paid in full. What you’ll find at the link above is the “Reasons for Judgement” that the Federal Court Judge, Justice Reeves, handed down at the conclusion of the hearing. (In official documents, Justice Reeves will be referred to as Reeves J, but this is not an official document, so I’ll spell it out for you.)
I’ll apologise to those of you with an understanding of our court system and note that I am explaining some matters that you might find obvious, but bear with me for the sake of those unlettered folks who might not have your background knowledge.
Courts don’t often publish full transcripts of everything that went on during the case, but rather will publish the Reasons. Even then, not every case is published. Certainly they are all available if you know where to go and who to ask, but my point is that not everything is published. In this case, the hearing was in the federal court as it involved the Corporations Act, a federal piece of legislation.
In the reasons, Justice Reeves begins by noting that the case was brought under the wrong section of the act and says that this “provided a harbinger for what was to unfold in this application.” He then notes that around 450 pages of affidavits had been filed by the parties and that, on the whole, the affidavits seem to consist largely of name-calling and were consequently irrelevant to considerations. Our learned friend the judge then observes that the total amount in dispute is the sum of nine invoices totalling $10,706.33.
Now $10,000 for you and I is a reasonable some of money. Certainly it would cover the cost of a very agreeable lunch, but it falls rather short of the amounts that Federal Court Judges are used to considering. Furthermore, the effort that both parties had put into the affidavits (albeit wasted effort of the whole) and the cost of their legal representation seemed disproportionate to the amount at stake.
Next, our learned friend discovers that the lawyers had not even attempted to negotiate a settlement before coming to the court, so he sends them off to have a chat with some friendly words of encouragement that they should come to an agreement. I suspect the Judge used this time to have a stiff cup of coffee and to ruminate on the pig-headedness of litigants in the Federal Court.
Needless to say the warring parties did not manage to reach any agreement and soon enough returned to the court determined to see the thing through. So, our Judge, who must have been shaking his head so vigorously that his wig was in imminent danger of falling off, instructs the lawyers to tell their respective clients what their fees will be. Superior IP’s lawyer says $10,500 and Ahearn’s lawyer says $8000. On top of that there was just over $2000 in filing fees paid by Superior IP. In other words the total of the legal fees is a little under double the amount at stake. The Judge reminds the lawyers that, by law, they have a responsibility to settle disputes “as quickly, inexpensively and efficiently as possible.” This plea is ignored and, although it is not written into the judgement, I suspect a harried sigh escaped our learned friend as he decided that he “had no option but to proceed to hear the matter”
Things didn’t improve once the hearing started. There were all sorts of objections made by each side over the affidavits. Neither side had attempted to resolve the objections in advance and so the judge had to hear each objection individually. Then, I am sure I hear another sigh at this point, we discover that “neither lawyer appeared to have a copy of the Federal Court Rules 2011 or the Evidence Act 1995 (Cth) with him in court. Thus, neither of them could tell me which section or rule he was relying upon to make particular objections.”
The judge continues later “It is not overstating the matter to observe that this is the sort of conduct that brings the legal profession into disrepute, that significantly undermines the efficient disposal of civil litigation and that has the potential to erode public confidence in the administration of justice in this country.”
I won’t go through the particulars of the dispute, you can read them for yourself if you like, but I will say that the case largely revolved around Superior IP requesting more details on the charges and on Superior IP denying that they had instructed Ahearn to proceed with additional work.
Justice Reeves then says that “Since it has been wholly successful in its application, Superior IP would ordinarily be entitled to an order for costs” but, in light of the conduct of the lawyers in the case, her foreshadows a far more sinister outcome! Yes, the judge notes that he has discretion where the lawyers have not fulfilled their obligation to order that the lawyers bear the costs personally. The unkindest cut of all for a lawyer, no fees!
Finally, in summing up, Justice Reeves instructs the lawyers to each provide their clients with a copy of the Reasons, that they lawyers themselves be joined as parties to the dispute in regard to costs and that he will “direct the Registrar to provide a copy of these reasons to the Queensland Law Society, the Bar Association of Queensland and the Legal Services Commission, so that those bodies may take such action as they consider appropriate in relation to the conduct of the two lawyers concerned.”
Finally, a hat tip to Shit Judges Say for reminding me about this case.
Photo by Thomkins H. Matteson, painter - Collection of the Peabody Essex Museum, Public Domain, https://commons.wikimedia.org/w/index.php?curid=2752308
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