Her Roziness

The Kafkaesque world of case flow management ... Surviving the Intervention Notice pantomime ... Case management judge skewered by Qld CA ... Sir Terence O'Rort reporting from Brisvegas

That flower of the Queensland Supreme Court, Justice Roslyn Atkinson, already has been the subject of detailed analysis in this organ (see: No shortage of spin in the sub-tropics).

However, Her Roziness comes to my attention again, this time with some well selected pearls to members of the Queensland Civil and Administrative Tribunal on how to better express themselves.

See: Justice Atkinson on Judgment Writing.

I'd like to share with you a few morsels from her rich smorgasbord of advice:

"Like it or not, and I assume there is no-one here who would own to regretting it, one half of the population is female...

It is as well to avoid obvious grammatical errors that will make others think less of your work...

Clarity is not just an adornment to prose but may be a matter of life and death...

Avoid the use of clichés. As one writer on the topic said, 'Bite the bullet and avoid trite clichés like the plague'...

An amusing and very useful book on style in general is Lynne Truss's Eats, Shoots and Leaves: The Zero Tolerance Approach to Punctuation... 

It is particularly important that the losing party knows why he or she has lost the case."

Atkinson J is well-qualified to help those lower down the food chain as this extract from her profile on the Queensland Courts web-site attests:

"Before beginning her legal career, Her Honour studied Arts and Education and worked as a secondary school teacher. She completed a post-graduate certificate at the Rose Bruford College of Speech and Drama in the UK and then worked in the theatre as an actor and theatre administrator. She later lectured in literature, drama and film at the Queensland Institute of Technology while studying for her law degree."

Atkinson was also the top student at the bar practice course in 1985 winning the James Archibald Douglas Prize.

Obviously, Daphnis de Jersey was impressed with Roz's credentials when he put her in charge of the management of civil cases in the Supreme Court.

As long ago as 2002 Daphnis and his henchpeople dreamt-up Practice Direction 4, entitled Case Flow Management - Civil Jurisdiction. The aim was to speed up the hearing of civil claims in the court.

This scheme was based on the fantasy that every Supreme Court case would be ready for trial within six months of the filing of a defence.

If a request for trial was not filed by the parties by that time then an "Intervention Notice" would be sent to the solicitors for the parties calling on them to show cause why the proceedings should not be deemed resolved.

The solicitors then had to write to the registry robots listing the 101 reasons why the action was not ready for trial i.e. the fraud who stole our money won't make disclosure because he doesn't want a trial.

If you were a defendant dudder who was intent on avoiding creditors your solicitors would put the Intervention Notice in the bin as they knocked the top off another vat of chardonnay, funded by your fat fees.

However, things were a bit trickier if you were a Mum and Dad dudee simply trying to recover your lifesavings from a local Brisvegan shyster.

If the Intervention Notice got tangled-up in the Bowen Hill Bugle racing guide and disappeared on the floor of the members at Eagle Farm, the automatons at the registry then pressed the button and a "CFM 3 Notice" was spat out of the court's creaky computer and sent to Mum and Dad's solicitors telling them that the proceedings were "deemed resolved".

All that Mum and Dad could do was to try to convince their bleary-eyed solicitor to fess-up in an affidavit and explain that the notice had not come to his attention because it had been lost on the way to an important client conference at Eagle Farm.

The registrar could then "reactivate" the proceedings or refer the matter to a judge.

After a few years of absolute chaos Daphnis got the idea of appointing Atkinson J as the judge in-charge of case management.

This unleashed a torrent of case flow reviews presided over by Her Roziness for the lucky litigants who managed to survive the intervention notice pantomime and whose case had not been deemed resolved.

Punters were required to saddle up their solicitors or barristers and donate a few more thousand dollars to get their lawyers to appear before Roz J to "plan" how the action was to be progressed.

They had to pray their solicitor was on time for the judicial flaying because, as the Supreme Court web-site says:

"Practitioners and self-represented litigants are expected to appear at the review before the Honourable Justice Atkinson; failing this, the matter may be deemed resolved."

Her RozinessSo much for access to justice.

With all her qualifications and experience it's a shame that the crusty old demons on the Court of Appeal fail to appreciate the clarity of Roz's judgments.

Things came to a head in Multi-Service Group Pty Ltd (in liq) v Osborne when the Court of Appeal constituted by the President, Muir JA and the Daubster gave Roz a smack in a joint judgment.

The plaintiff was a liquidator who had issued proceedings against Mr Osborne, a former director of the company in liquidation, and his wife.

The liquidator alleged that Mr & Mrs Osborne had intercepted a cheque made payable to the company and paid it into their joint account.

The liquidator also alleged that Mr Osborne had granted himself a loan from the company of about $106,000, which had not been repaid and he had caused the company to make him a "termination payment" of $200,000 on his resignation as a director. The liquidator alleged that this was either an uncommercial transaction or a payment made in breach of fiduciary duty.

The matter started with the usual Intervention Notice sent out by the registry commanding all and sundry to appear before Roz and was in the following terms:

"Because of the failure to file a request for trial date the matter will be listed for review before Justice Atkinson at 11.00 am on 30 May 2008.

At the review hearing Justice Atkinson WILL require a plan (in the form of a draft order) which should include the following elements to ensure the timely disposition of the matter:

• Directions that include an actual date for compliance with each step;
• If directions include a provision for expert reports then a provision for experts to meet under rule 429B. You should also give consideration of the appointment of a single expert;
• An actual date for filing a request for trial.

Justice Atkinson has directed that the registry is not permitted to accept a consent order to amend a case flow plan approved by her.

Any amendment to such a plan must be submitted to Justice Atkinson at a further review."

After the usual flogging Roz made orders requiring the plaintiff to serve a Request for Trial Date upon the defendant by May 15, 2009 and the defendant to sign the Request for Trial Date and file it in the registry by May 22, 2009 or the matter be deemed resolved.

This nifty bit of judicial thinking was based on the assumption that defendants, i.e. people who owe money, are enthusiastic to go to trial, i.e. a place where people who owe money are ordered to pay it.

For various reasons the plaintiff did not comply with a number of other directions made by HH and on May 19, 2009 the plaintiff's lawyers wrote to the defendant's lawyers proposing further draft orders and saying:

"Given that the 'deemed resolved' date is 22 May 2009, we ask that you provide your response as a matter of urgency."

Surprise, surprise. The defendant's lawyers did not respond and the deemed resolved date came and went.

The registry staff performed to their usual standard and issued a deemed resolved notice on May 22, 2009, even before the time for compliance with the order made by Atkinson had expired.

In any event, they stuffed-up the order because the non-compliance was not with an Intervention Notice but with Roz's order.

Bravo.

The plaintiff's lawyers notified the defendant's solicitors that the plaintiff intended to bring a "reactivation" application, but in another completely surprising development the defendant's solicitors notified their opposition to such an application.

The reactivation application was heard by Her Roziness and she refused to reactivate the matter.

Rather modestly she referred to her earlier decision in Arc Holdings Pty Ltd v Riana Pty Ltd as establishing the principles that the court should apply.

Things didn't begin well when Roz got the date of the registrar's order wrong in her judgment, but went from bad to worse when in the words of the Court of Appeal she ...

"treated the application for reactivation as akin to an application for dismissal for want of prosecution or to an application for leave to proceed under r.389."

Unsurprisingly, the Court of Appeal found that Roz was in error because there was no application for the dismissal of the proceeding for want of prosecution or leave to proceed.

The liquidator had led uncontested evidence as to the complexity and scope of the investigations necessary to be undertaken by him. Roz put it it differently ...

"An insolvency involving 500 documents could hardly be considered a large insolvency matter."

The only problem was that the evidence before Her Rozness was that the liquidator had to consider 500 boxes of documents.

In any event the Court of Appeal found that HH had got it all wrong and that the liquidator had a fairly arguable case, a trial could take place in the reasonably near future, that the liquidator had a plan to facilitate the speedy determination of the proceedings and that his material had explained and justified how the deemed resolution had taken place.

The court ordered that the defendant pay the liquidator's costs of the appeal.

In Multi-Service Group Pty Ltd (in liq) v Osborne [2010] QCA 172 the Court of Appeal granted the defendants an indemnity certificate pursuant to the Appeal Costs Fund Act for the appeal costs, on the grounds that Roz was mistaken in her Arc Holdings judgment and because she made a factual error in the judgment the subject of the appeal.

As Roz puts it in Judgment Writing:

"Some judgments almost write themselves. They are purely mechanical and can be dealt with quickly."

A differently constituted Court of Appeal in Barton v Atlantic 3-Financial (Aust) Pty Ltd (in liq) [2010] QCA 223 also couldn't agree with Roz and administered another bollocking in a 3-0 judgment.

The appeal bench found:

"The exercise of the primary judge's discretion miscarried as a result of an undue focus on past delay and the giving of insufficient consideration to the appellant's prospects of advancing the proceedings in a timely way."

The Court of Appeal reactivated the proceedings and granted the defendant an indemnity certificate pursuant to the Appeal Costs Fund Act.

Lest you might think that Her Roziness is a tad upset at the insensitivity displayed by the beastly Court of Appeal I'll leave the final word to HH herself:

"Once you have been writing judgments for a while you come to welcome the clarification or expansion of the law by an appeal court or the identification of errors that you have made so that you don't repeat those errors. It takes an immense burden from a judicial officer to know that if you get it wrong it can be corrected on appeal."

I wonder whether the trustees of the Appeal Costs Fund share a similar warm and fuzzy feeling?

Sir Terence O'Rort reporting