Seamus E. Byrne's - In Pursuit of Relevance

[Bold text denotes emphasis added].

Intel Corporation v Unwired Group Ltd [2008] FCA 1927 (11 December 2008).

The recent decision of Rares J ordered a judgment sum of A$38M to Intel Corporation, following their earlier investment in Unwired, for support in the implementation and adoption of WiMAX (802.16) wireless networking technology. The claim for repayment commenced upon the takeover of Unwired by a wholly owned subsidiary of Seven Network Limited in late 2007.

On 11 December 2008, His Honour subsequently allowed Unwired leave to re-plead two additional and purportedly significant points of claim. However, this order was preceded by the following comments:

[61] The purpose of pleadings, particularly in commercial cases such as these is to make clear to the parties and the Court the real issues which are to be joined at trial. There was discussion on a number of occasions during the course of argument about whether the pleadings adequately exposed what would be the real issues to be fought at the trial. It is an essential feature of the procedures offered by this Court (and, indeed, as I understand the position of the Commercial List and other lists in the Supreme Court of New South Wales) that the parties are required to articulate and bring forward, clearly, precisely and definitively, the real issues that they wish to have litigated. It is not proper or right for parties or their lawyers to leave buried within a myriad of particulars, or an ambiguity in the phrasing of a pleading, a real issue which a party intends to litigate.

[62] Litigation comes at a real cost to the community that must provide the resource of independent courts as the third branch of government for the resolution of disputes and quelling of controversies. Litigation also comes at a real cost in terms of financial outlays to the parties, as well, where individuals are affected, in terms of their emotions and their abilities to conduct their lives. The stress of a contested court case on individuals is a toll incapable of measurement. Litigation is not a game, or a point scoring exercise. It is the means by which our society allows disputes to be resolved authoritatively and impartially by judges and juries applying the law to the facts that each party brings forward as relevant to their dispute. That is why, even in the adversarial system of litigation which our nation’s courts use, it is no longer acceptable for parties to hold their forensic cards up their sleeves. The function of the courts is to resolve a controversy, not to play a game or be the parties’ vehicle for game playing. And, the parties, as well as their lawyers, owe a duty to the Court to bring forward clearly and precisely the real issues, and only those issues, which they need to have resolved by the Court. It is not appropriate for a party to leave a point buried away in a pleading or particular which, on a fair but close reading, may possibly be seen there, but which has not, as a matter of substance been fleshed out or exposed in a meaningful way.

[63] The purpose of case management and the docket system adopted by this Court is to enable both the parties and the Court to be informed, from the outset of the case each of the parties intends to advance and to identify the real issues in dispute. This is so that directions can be crafted to enable the efficient management of the litigation, with a view to focusing on and allowing those issues to be tried, and, at the same time, eliminating irrelevant matters quickly and efficiently: White v Overland [2001] FCA 1333 at [3]-[4] per Allsop J (applied by Heydon JA in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 128-129 [28]-[32], Mason P and Young CJ in Eq agreeing); Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159 at [29] per Allsop J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160]-[162] per Allsop P, with whom Beazley and Campbell JJA agreed.

[64] In Maniotis v JH Lever & Co Pty Ltd [2006] FCAFC 7 at [72], Finn, Emmett and Bennett JJ said:
"In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one’s interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4]." (emphasis in original)