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Court in the Act
16 April, 2010  
Aeons for Aon

Five years of preliminary skirmishing … The Australian National University’s battle with Aon Risk Services is still moving at a snail’s pace through the ACT Supremes, despite a blustery warning from the High Court eight months ago about “torpid languor” ... Samantha Bowers reports


imageThe High Court’s panning last year of case (mis)management in the ACT doesn’t seem to have sped things up any for Aon Risk Services and the Australian National University.

The parties have been at each other’s throats since June 2005 over insurance cover for damage to ANU’s Mt Stromlo Complex (pic) during the 2003 Canberra bushfires.

A four-week trial was set down for November 2006, but never got off the ground because ANU settled with all the defendants (except Aon) three days in and promptly requested an adjournment.

The full bench of the High Court issued a memorable rebuke to the ACT Supreme Court, whose handling of ANU’s subsequent attempt to amend virtually its entire case has become enshrined in precedent as a model of how not to conduct litigation.

After smacking ANU’s amendments on the rump, along with Justices Malcolm Gray and appeal judges Hilary Penfold and Terence Higgins CJ, the High Court might have thought it had got the message across.

Not really.

Eight months later, the parties still haven’t gone to trial, Aon is still struggling to work out what case it has to meet and Justice Gray appears as indisposed as ever to flex his case management muscles.

The trouble this time? Amendments to ANU’s statement of claim, which sound a bit like history repeating itself.

This time Aon consented to the proposed amendments, which were made when the High Court sent the matter back to the Supreme Court last November.

See Justinian’s report: Lemon Grass interruptus

The changes seemed minor – made mostly to accommodate ANU’s settlement with the other defendants.

Gray J directed ANU to file further evidence.

Aon understood this to mean evidence relating only to new issues arising out of the amendments to the statement of claim.

It seems ANU took a different view, because it went ahead and filed affidavits which Aon says aren’t restricted to new issues at all.

The insurance outfit brought an application before Gray in February, seeking to prevent ANU from relying on any evidence filed after 2006, except to the extent that it arose out of the amendments.

imageIts main beef is that the evidence seeks to address issues that were the subject of the very application to amend, which was knocked back by the High Court.

Bob Stitt (pic), counsel for the defendant Aon, said ANU was seeking to overcome the ruling of the High Court. He argued:

“It’s leading evidence in stealth. It’s making a case which was denied to them on the pleadings.”

Stitt tried to convince the judge to use case management principles and/or section 192A of the Evidence Act to restrict the evidence ANU could rely on.

Section 192A allows a court to make an advance ruling or finding on the admissibility or use of evidence “if it considers it appropriate to do so”.

Unfortunately for Aon, HH did not think the case raised those appropriate circumstances or justified the restriction of ANU’s evidence under case management principles.

He rejected Aon’s application with costs.

One of the insurance company’s concerns was that the evidence was “extensive” and most of it had “nothing at all” to do with it.

Stitt suggested that as a “basic preliminary” ANU should be required to identify the specific parts of the affidavits which Aon was required to meet.

HH agreed the evidence was “quite extensive” and “it may well be irrelevant”.

Nonetheless, he was “not sympathetic … to requiring the plaintiff to do that” and didn’t see that it would greatly affect Aon’s preparation for the case it needed to meet.

When Stitt asked to cross-examine ANU’s solicitor on the preparation of the evidence, he was told that it was “too late”.

“Well, you didn’t ask for him to be cross-examined at the outset,” the judge said (though Stitt claimed that he did).

Stitt rallied, arguing in the context of one affidavit that the witness had been available to ANU throughout the whole case.

It could have been filed back in 2006 and no explanation for the delay had been proffered. Why should ANU now be allowed to “patch up their evidence”? Stitt said:

“The plaintiff [ANU] obviously made a forensic decision not to put her evidence on, not to call her.”

Unmoved, his Honour responded:

“Well whether or not that was so, I still don’t see that as a justification at this stage for excluding her evidence.”

Stitt suggested that there, “must come a time when there is fairness”, to which HH replied:

“Are you suggesting I’m not being fair?”

imageAon may have lost the battle, but it’s still got its sights on the war. On March 3 it applied for leave to appeal from Gray’s decision.

It took the united efforts of counsel for both parties to convince Justice Hilary Penfold (seen here) in the ACT Court of Appeal that she could hear Aon’s application for leave.

Once she’d got comfortable with that, her Honour decided it would be best for the court to hear the appeal itself at the same time.

Although it will only take a day, the earliest date available was July 23.

Bizarrely, after counsel for ANU said they’d like the matter resolved “as soon as possible”, Penfold suggested it might be unhelpful if the registry were able to find an earlier date.

The parties disagreed.

Assuming this latest interlocutory stoush doesn’t push the timetable out even further, the earliest the trial could be held in the Supreme Court is January 31, 2011.

Bob Stitt suggested this date could be brought forward if the evidence was limited as sought by Aon, as this would cut the trial length from three weeks to one.

No cigar. It turns out the Supreme Court can’t even hear a one week trial before next year.

As Justice Penfold said:

“I’ll leave you … to reflect on that and judicial resources over morning tea.”