Most jurisdictions in Australia have procedural rules to the effect that matters are resolved justly in a timely fashion and cost effectively. How these rules should be applied were the subject of the recent High Court decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. The case arose after a number of buildings owned by the ANU were damaged in the Canberra bush fires in January 2003. ANU settled with its insurers and then wanted to make extensive amendments to its claim against its broker, Aon. The lower courts allowed the amendment on the basis that justice was the paramount consideration. Not so, in the High Court!

The majority (at [114]) found:

The Rule’s objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU’s application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a “just resolution” of ANU’s claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it.

Or as Justice Heydon concluded (in the very last paragraph of the judgment):

The presentation and adjudication of the case in the courts below do cause it to merit a place in the precedent books. The reasons for placing it there turn on the numerous examples it affords of how litigation should not be conducted or dealt with. The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.

Photo used under creative commons licence.

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