Seamus E. Byrne's - In Pursuit of Relevance

The Bell Group Limited (in Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239.

Recent Entries

1. Bell Group Litigation - "Decision time" (October 27, 2008)
   This Media Report provides a concise summary of the apparent facts and legal argument.
2. Bell Group Litigation - Judgment Forthcoming (September 14, 2008)
   This Media Report provides a number of document-related trial statistics.

First Look - Justice Owen on E-Litigation

Guide to Reasons

p. 1:

Because of their size, these reasons for decision will be published only in electronic format. They will be available to the parties and others (on request) on CD and to members of the public on the website of the Supreme Court of Western Australia.

pp. 25-26:

The practical logistics for a court hearing a long trial such as Bell are enormous. It was necessary to have a courtroom big enough to accommodate teams of lawyers and a large volume of documents. It meant the installation and upgrading of technological facilities and the removal from other uses for years of the courtroom dedicated to the trial.

Significant resources were allocated (probably at the expense of other more deserving sectors of the Court) to the development and maintenance of the technology necessary to run the trial. The technological facilities were of an extremely high standard.

Despite the earlier reference to large quantities of documents, the trial was conducted largely in electronic format. Although the use of paper was by no means eliminated, it provided an opportunity to reduce the number of sets of documents reproduced in hard copy. For those who are environmentally conscious, a rough calculation indicates that to create one complete set of the tendered documents would use 3.5 tonnes of paper. For that amount of paper, the manufacturing process would require 2.5 pine trees and 200,000 litres of water.

Judgment

At [953]:

Whether the rules of evidence and the practices and procedures that the courts have developed over the centuries to deal with the rules are appropriate for litigation on this scale is debatable.

At [955-956]:

Before I explain what I intend to cover in this section, I will set out some statistics relating to the trial. It is necessary to bear these statistics in mind when considering the evidentiary problems that surfaced before and during the trial. I should also say that all of the statistics quoted in this section have been extracted electronically. I would not want it thought that I have spent much of the last two years counting things.

The parties sent to the court for inclusion in the electronic trial book 134,680 documents (452,178 pages). By the end of the trial, 86,340 documents (318,819 pages) had been tendered. Documents were tendered by lists or categories, not individually. A protocol was developed by which objections to the admissibility of documents in a tender list were itemised in a corresponding objection list. I have no idea how many objections were made to the whole or parts of individual documents. But the number runs into the thousands. There were 363 tender lists covering the 86,340 tendered documents and 350 of them had corresponding objections lists.

At [9746]:

I had intended to include a section in these reasons covering those matters. But lassitude has set in and the prospect of writing about long trials now lacks appeal. In due course I will write extra-judicially on the subject. For present purposes it is sufficient to make these points.

1. Governments are unlikely to increase significantly the resources they allocate to courts. I do not believe that large commercial entities should have unlimited access to a disproportionate share of an already scarce resource.

2. Where a case involves substantial corporate litigants the daily hearing fees should be increased to something closer to the real current cost to the public of providing the human, physical and technological resources necessary to resolve the dispute.

3. Most importantly, a panel of judges should be allocated to hear and decide cases of unusual length and complexity. I have no doubt that had two judges been hearing this action it would have occupied much less than half the time.

Historical Perspective - Select Pre-Liquidation and Litigation Extracts from the New York Times (1987-1990)

18 May 1987 - Media Report - "Australia's Richest Strategist"

As a young and commercially immature nation, Australia specializes in cultivating entrepreneurial geniuses, larger-than-life figures such as Alan Bond, the Perth millionaire who won the America's Cup in 1983, and Mr. Murdoch, the global media executive, and a half dozen others. In America and Europe, companies dominate business; here, people do. And none of the titans commands more attention in Australia than Robert Holmes a Court.

16 February 1988 - Media Report - "Holmes a Court Reports $750 Million Loss in Stock Plunge"

Robert Holmes a Court, the Australian investor, said today that his Bell Group conglomerate had lost more than $750 million in the October [1987] stock market collapse, more than experts had estimated.

1 March 1988 - Media Report - "Merger by Holmes a Court"

Robert Holmes a Court, the Australian financier, today announced a plan to merge his two leading companies after clearing the decks two weeks ago with huge write-offs of losses in the stock market.

30 April 1988 - Media Report - "Holmes a Court Sells Most of Bell Group"

The financier Robert Holmes a Court, whose fortune shrank from billions to millions in October's market crash, today sold most of his stake in the Bell Group Ltd., which has interests in a variety of industries.

The Western Australian State Government Insurance Commission and Alan Bond, a brewing and media entrepreneur who won the America's Cup in 1983, each purchased 19.9 percent stakes in Bell Group. The total sale price was 333 million Australian dollars, or about $253 million (United States), and Mr. Holmes a Court's stake in Bell Group was reduced to about 3 percent.

19 July 1988 - Media Report - "Bond May Have Raised Bell Stake Above 25%"

Alan Bond, the billionaire entrepreneur who is seeking control of Bell Group Ltd., may now have more than 25 percent of the company, which is part of the diminishing holdings of the corporate raider Robert Holmes a Court.

23 November 1989 - Media Report - "Bond Corp. Trading Halted"

Alan Bond, the Australian entrepreneur, suffered a double blow today that left his companies' debt downgraded and their shares suspended.

The Australian Stock Exchange said it had suspended trading in Bond Corporation Holdings Ltd. and a subsidiary after they failed to submit annual reports on time.

12 April 1990 - Media Report - "Bond Corp. Reports Big Loss"

Alan Bond's beleaguered flagship company, Bond Corporation Holdings, today reported a loss of 758.15 million Australian dollars ($580 million in United States currency) for the second half of last year.

But a Bond director, Peter Lucas, said the company thinks it can not only survive, but also rebuild.

Mr. Bond's brewing, media and property conglomerate is battling several court actions in Australia against its creditors. Directors said that the ''hostile environment'' in which Bond had operated in the last six months meant that it had incurred losses on the sale of its assets, reducing their effectiveness.

20 July 1990 - Media Report - "Bond Agrees To Resign"

Alan Bond, the Australian entrepreneur with worldwide holdings in brewing, real estate and publishing, will resign as chairman of his company to appease creditors under an agreement announced today.

Mr. Bond's departure from Bond Corporation Holdings Ltd., which is more than $6 billion in debt, could lead to important refinancing arrangements, said Peter Lucas, a company director. No decision has been made on who will replace Mr. Bond, he said.

3 September 1990 - Media Report - "Robert Holmes a Court, 53, Dies; Australian Built Business Empire"

Robert Holmes a Court, a South African immigrant who became one of Australia's most successful entrepreneurs and corporate raiders, died of a heart attack early this morning at his horse farm near Perth in Western Australia. He was 53 years old.