My Single Favourite Judicial Homily

As a history tragic, I am somewhat fond of inspiring political and military speeches. For commercial lawyers, and I say this with an indescribably large level of self-awareness, courtrooms are battlefields and hence judgments are as close to an inspirational war-cry as most will ever hear. That being said, I was recounting the below judgment to a colleague the other day and was shocked that I had not written about it sooner; as it includes my favourite sermon contained within a judgment.

THE BELL GROUP LTD (IN LIQ) -v- WESTPAC BANKING CORPORATION (No 9) [2008] WASC 239 holds a grim honor of being amongst the longest actively heard cases in Australian history occupying 404 hearing days between July 2003 and September 2006. By the time the various appeals were dealt with up to the High Court, it was indeed Australia’s longest ever running case. In the WA Supreme Court matter, the originating process was originally filed in 2000 and the decision was not handed down until 2008. It involved 20 different banks, 7 SC/QCs and numerous other barristers and solicitors.

Without going too deep into the minutia, the case dates back to the acquisition of the Bell Group by Alan Bond in the mid-80s. Bond bought 19.9% and wanted to get around the Acquisition of Shares Code, which would have required him to go public with the acquisition had he bought more. Bond convinced his political allies to use the WA State Government Insurance Commission to purchase another 19.9% and then sell those to Bond. The Bell Group had deep coffers and Bond intended to plunder its booty.

Through other loan agreements, Bond acquired a controlling interest and stripped $1.2 billion from the Bell Group. This landed him 2 years in gaol, the same sentence for disrupting a wedding, and amounted to one day for every $2 million. The incident led to decades of litigation including the above mentioned WA Supreme Court case.

I don’t intend to get into the complexities of this fascinating series of judgments as it is so long and complex that it makes Ken Burns look like Tommy Wiseau.

The politics are worth getting into though. Briefly, they involve backroom deals between Joe Hockey as Treasurer and the WA government agreeing to not press the ATO’s claim to $300m to allow it to flow to WA; seemingly a shady agreement between the two Liberal governments as compensation for a perceived slight over the allocation of GST distributions. Solicitor-General Justin Gleeson SC eventually persuaded Hockey that not pressing the Federal Government’s claim would likely be tantamount to neglecting his responsibilities as ministers (my words). In 2016, the then Assistant Treasurer, Kelly O’Dwyer, relied on Gleeson’s ongoing advice to intervene against a WA law that would have acted to strip the assets from the Bell Group in WA’s favour instead of following the normal preference allocation in insolvency. About one month later, Attorney-General George “Bunsen Honeydew” Brandis gave the unprecedented direction that the government solicitor was not to give advice to the government without clearing it with him first. This snowballed into a showdown that eventually led to Gleeson’s resignation, whose resignation letter rejected “each and every attack and insinuation” and did “not amount to a withdrawal of any position I have taken in relation to matters of controversy between us”. Anyway, its heady days we live in and you know how Ask Jeeves works; so you’ll look into it if you care.

Justice Owens was not aware of the political intrigue that would follow after his decision but his judgment does give an insight into the exasperation one must feel after 404 days of a hearing. The UWA alumn opens his judgment and my favourite commentary:

The Bell group of companies had a splendid radiance in the commercial life of Australia during the 1970s and early to mid-1980s. The group also had aspirations to international prominence. It was a favourite of the stock market and had accumulated (at least on paper) a relative fortune. But as the Bard so wisely remarked: ‘You fools of fortune, trencher-friends, time flies’. By the early 1990s fortune, friends and time had flown. This litigation is a result. It is a dispute of Brobdingnagian proportions that emerges wraithlike from the still-smoking ashes of the late 1980s: an unfortunate period in this State’s business and political history.

Now this is where you’re lucky to have me and this is where I’m lucky to have ctrl-f, because what follows is 9,760 paragraphs of imbroglio and entanglement. After such a “Brobdingnagian” judgment and hearing, the exhausted Owens J closes out his judgment:

I am not so naïve as to believe that the handing down of these reasons will mark the end of the litigation. But stranger things have happened. It is still not too late for the parties to put an end to this saga by a negotiated settlement, guided (perhaps) by the findings I have made. If formal judgment is never entered, or of there is a consent judgment on negotiated terms (whether or not they accord with what is contained in these reasons) I will be the last person to complain.

Whatever the parties decide to do from here, my role in the litigation will come to an end in the near future. Selfish though it may seem, for me that is the primary concern. I will try to engender sympathy for those who come after me: but I make no promises.

From time to time during the last five years I felt as if I were confined to an oubliette. There were occasions on which I thought the task of completing this case might be sempiternal. Fortunately, I have not yet been called upon to confront the infinite and, better still, a nepenthe beckons. Part of the nepenthe (which may even bear that name) is likely to involve a yeast-based substance. It will most certainly involve a complete avoidance of making decisions and writing judgments.

For the moment, in the words of Ovid (with an embellishment from the old Latin Mass): Iamque opus exegi, Deo gratias.

An oubliette is a gaol cell with the entrance in the ceiling, sempiternal means eternal and unchanging and a nepenthe is a mythical Greek drink so powerful that it banishes sorrow and eases grief.

Iamque opus exegi, Deo gratias.  –  And now I have finished the work, thanks be to God.

Justice Owens retired immediately after handing down his decision.