Litigation Solicitors Take Heed!

2 December, 2009

Litigation practitioners should take heed of the Court of Appeal’s recent comments that the court is a publicly funded resource and there is an obligation upon practitioners to assist the court in utilising its scarce resources in the most efficient manner.

The warning can be found in the case of A Team Diamond Headquarters Pty Ltd and Artusa v Main Road Property Group Pty Ltd and ors [2009] VSCA 208. The case was an appeal from a costs order following an application for an interlocutory injunction. The application for injunction was to prevent the plaintiffs’ solicitors and counsel from continuing to act in the proceeding. Before the application was heard a further application was made to join the plaintiffs’ solicitors to the proceeding as a defendant to the counterclaim. Both applications were heard together, but the interlocutory injunction took up the majority of the 7 hearing days. The application for joinder was granted and the application for an injunction was dismissed as unnecessary because once the plaintiff’s solicitors were joined to the proceeding they would cease to act. Costs of the injunction application were ordered to be paid by the applicant.

The Court of Appeal agreed with the costs decision and said that a

reasonable litigant in the position of the applicants should have realised that there was every likelihood that upon the success of the joinder application the need to obtain injunctions against either the solicitors or counsel would be obviated’.

They said that they doubted whether the applicants’ solicitors gave

any sufficient consideration in preparing and presenting their case as to how they might best assist the Court in the use of its limited resources…Practitioners must ensure that the course chosen in the interests of the client is compatible with this overarching duty. It is a responsibility which should be at the forefront of every practitioner’s considerations throughout the pre-trial and trial process. Without such assistance from the legal profession, the courts are unlikely to succeed in their endeavour to administer justice in a timely and efficient manner.