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Court in the Act
9 March, 2010  
Cha Cha Cha

Defamatorium … The mother of all hellish defamation cases … Years in the making … Endless drama … Barristers birched for lack of computer skills … Samantha Bowers reports


If you’re into archaeology there is nothing more exciting than the discovery of ancient fossils.

One species nearing extinction, descendants from the Pleistocene age, is the computer-illiterate lawyer.

imageAlthough personal computers have been a common fixture of life since the 1990s, this rare animal is all fingers and thumbs in the vicinity of the basic technological tool of modern productivity.

Ask them to run a search on Lawlink and they’ll assume the legal profession has started-up a light rail service.

If it disadvantaged them alone such technophobia might be comical.

However, in a recent 400-page defamation decision, Judge Judy Gibson (above) makes it clear it’s no laughing matter for the NSW District Court.

See HERE and HERE.

The defamation proceedings got off the ground in 2002, when former chairman of the Kor-Aus Olympic Supporting Committee, Bob Chae-Sang Cha, claimed seven defendants had defamed him in Korean language newspapers after the Sydney Olympics.

By the time the final reasons was handed down in December, after 21 interlocutory judgments, documents had gone missing in action, a defendant had died and memories had grown dim.

imageOne defendant had a tendency to forget the beginning of a document by the time he’d reached the end.

Cha’s counsel, the wily Clive Evatt (snap), reassured the witness he had the same problem.

In the end, the plaintiff bagged $240,000 in damages against three of the seven defendants. Another coughed-up $60,000 to settle.

However, Cha racked up $175,000 in legal costs in the first half of 2009 alone. The word “disproportionate” comes to mind.

As Judge Judy said in relation to the perils of “mega-litigation”, when the public sees the legal profession running up jumbo fees, the last thing they’re going to do is “admire the cleverness of the lawyers”.

HH had already taken two weeks out of her holidays to read hundreds of pages of submissions.

After the hearing, she had to churn out a judgment worthy of Leo Tolstoy in only two months, with no time out of court to write it and no secretarial assistance.

No wonder she sounded snippy in places.

She also soldiered on despite a significant language barrier, witnesses who kept bursting into tears or leaving the witness box willy-nilly, a self-represented defendant who sat up the back laughing, and applications – from both sides, at different stages – for her to disqualify herself.

Not to mention countless delays for everything from that existential question “to jury or not to jury”, to disputes arising out of difficulties arising from the hard-copy transcript which, by the end, had reached a whopping 4,606 pages.

Which brings us back to the computer-illiterate lawyer.

Judge Judy had done her best to move things along by installing computers at the bar table so the transcript could be read electronically.

The difficulty was that neither defence counsel Scot Wheelhouse nor Clive Evatt for the plaintiff were comfortable with those darn computer contraptions.

In her judgment, Judge Gibson observes that just, quick and cheap results are …

“difficult to achieve without assistance from computer-literate counsel who have considered the law, distilled the facts and issues and presented them in a clear and concise fashion in properly pleaded and particularised claims and defences.”

Ouch.

Mind you, it’s not like they haven’t been warned.

In 2001, the NSW Supreme Court’s Clifford Einstein said:

“Use of technology to achieve necessary efficiencies in relation to litigation is not only highly desirable but sometimes absolutely essential.”

The self-proclaimed “Prince of Luddites” (Wheelhouse) and Evatt (whom the judge dubbed “no better”) have had ample opportunity to pick up a copy of PCs for Dummies.

Perhaps there wasn’t time.

Wheelhouse had his hands full trying to convince the plaintiff to admit to things which (as it was later discovered) weren’t actually true; Evatt was preoccupied accusing Wheelhouse of cowardice, and watching for Cha’s eyes to glaze over in a cross examination that wouldn’t say die; and Cha kept everyone busy with his penchant for “long speeches”.

At one stage it was necessary for the judge to ask him to “stop shouting”.

And counsel for both sides did an admirable job of maintaining a consistent state of “hostility and unpleasantness” at the bar table. The judge observed the proceedings were unusually combative, even for a defamation case:

“while defamation actions are adversarial proceedings, lawyers must act with decorum, and not allow oratorical exuberance to prevail”.

Quoting former appeal judge R.P. Meagher in relation to her own role in managing the proceedings, she made it clear there was no requirement for her to “endure the ordeal with ladylike serenity”.

Samantha Bowers reporting