McNickle v Huntsman Chemical Company Australia Pty Ltd (Further Conduct of Hearing)
[2023] FCA 1216
•9 October 2023
FEDERAL COURT OF AUSTRALIA
McNickle v Huntsman Chemical Company Australia Pty Ltd (Further Conduct of Hearing) [2023] FCA 1216
File number: VID 243 of 2020 Judgment of: LEE J Date of judgment: 9 October 2023 Date of publication of reasons: 11 October 2023 Catchwords: PRACTICE AND PROCEDURE – contested proposed orders for documentary tender and closing submissions in initial trial – where revised orders proposed consistent with the overarching purpose – orders made Legislation: Federal Court of Australia Act 1976 (Cth) Pt VB Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 14 Date of hearing: 9 October 2023 Counsel for the applicant: Mr A Clements KC with Ms M Szydzik SC, Ms R Singleton and Ms R Howe Solicitor for the applicant: Maurice Blackburn Counsel for the respondents: Mr R Craig KC with Ms K O’Gorman and Mr R Ajzensztat Solicitor for the respondents: Herbert Smith Freehills ORDERS
VID 243 of 2020 BETWEEN: KELVIN MCNICKLE
Applicant
AND: HUNTSMAN CHEMICAL COMPANY AUSTRALIA PTY LTD (ACN 004 146 338)
First Respondent
MONSANTO AUSTRALIA PTY LTD (ACN 006 725 560)
Second Respondent
MONSANTO COMPANY (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
9 OCTOBER 2023
THE COURT ORDERS THAT:
1.By 5pm on 18 October 2023, the parties send to the Associate to Justice Lee a consolidated list of documents which each party wishes to tender that identifies the documents in respect of which objection is taken by the other party.
2.The initial trial be adjourned part heard for the receipt of any further evidence to 10:15am on 19 October 2023.
3.By 5pm on 1 November 2023, the parties file and serve the initial version of their closing submissions limited to 200 pages (including any annexures or schedules) and provide a Microsoft Word version of those submissions by email to the Associate to Justice Lee.
4.By 5pm on 15 November 2023, each party provide the final version of their closing submissions limited to 260 pages (including any annexures or schedules) which include, in a revised closing submission, any material in reply, and provide a Microsoft Word version of the revised closing submissions by email to the Associate to Justice Lee.
5.The submissions filed by the parties in accordance with these orders are to be in Times New Roman 12 point-type, are to refer to any authorised report and medium neutral citation of any cases referred to or cited (or in the absence of an authorised report, any unauthorised report and the medium neutral citation), and are not to include footnotes.
6.The initial trial be listed for hearing of oral submissions at 10:15am on 29 January 2024 with an estimate of no more than two days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)LEE J:
On 6 October 2023 (that is, three days ago) my Associate received a draft minute of order from the respondents (collectively, Monsanto) concerning documentary tender and the filing of closing submissions in the initial trial of this proceeding (proposed orders). A controversy has arisen as to these proposed orders and given this contest, it is desirable I provide reasons for the course I propose to take.
The proposed orders were provided by Monsanto in circumstances where it had been anticipated last Friday that the oral evidence in the initial trial will conclude on 9 or 10 October. As it happens, as presently advised, the oral evidence will close tomorrow morning at the conclusion of the cross-examination of Dr Sawyer, an expert witness engaged in the proceeding by the representative applicant, Mr Kelvin McNickle. This has happened because despite initial estimates of a much longer trial, the parties have cooperated with the Court in streamlining the initial trial significantly.
At the instigation of the parties, I have deferred the documentary tender until the end of the initial trial. This is in circumstances where the parties have helpfully minimised the number of objections raised in relation to the vast number of expert reports filed through a series of conferrals. The highly cooperative way in which this process has been conducted suggests that the documentary tender will be voluminous but relatively straightforward.
The proposed orders envisage a regime whereby each party serve on each other a list of documents they propose to tender. There is a notification process for objections, then a conferral, following which the applicant is to send to my Associate, by 23 October, a consolidated list of documents which the parties wish to tender that identifies those documents in respect of which objection is taken. It is only then proposed that the proceeding be listed for hearing on the first available date after 23 October for the purpose of receiving the documentary tender in the event that objections to the tender require determination.
The email attaching the proposed orders was sent to my Associate at 8:42pm last Friday evening. However, given the matter was resuming on the following Monday (that is, today), I instructed my Associate to respond, which she did on the following day, being Saturday morning. That email response contained my own proposed minute of order (revised proposed orders) which was drafted in order to optimise the assistance I sought from the parties. The revised proposed orders were in the following terms:
1.By 5pm on 18 October 2023, the parties send to the Associate to Justice Lee a consolidated list of documents which each party wishes to tender that identifies the documents in respect of which objection is taken by the other party.
2.The initial trial be adjourned part heard for the receipt of any further evidence to 10:15am on 19 October 2023.
3.By 5pm on 1 November 2023, the parties file and serve the initial version of their closing submissions limited to 100 pages (and provide a Microsoft Word version of those submissions by email to the Associate to Justice Lee).
4.By 5pm on 15 November 2023, each party provide the final version of their closing submissions limited to 130 pages including, in a revised closing submission, any material in reply (and provide a Microsoft Word version of the revised closing submissions by email to the Associate to Justice Lee).
5.The submissions filed by the parties in accordance with these orders are to be in Times New Roman 12 point-type, are to refer to any authorised report and medium neutral citation of any cases referred to or cited (or in the absence of an authorised report, any unauthorised report and the medium neutral citation), and are not to include footnotes.
6.The initial trial be listed for hearing of oral submissions at 10:15am on 29 January 2024 with an estimate of no more than two days.
Submissions have been made today in relation to the revised proposed orders by King’s Counsel for both Mr McNickle and Monsanto today. Three matters were agitated.
The first matter, raised on behalf of Mr McNickle, was that the page limits identified in the revised proposed orders are insufficient to do justice to the case that the applicant wishes to develop in writing. The page limits specified in the revised proposed orders were my attempt to convey to the parties the length of written submissions that I would have considered to be necessary. With that said, I am not the person preparing the submissions and I am conscious of the fact that each party should have the opportunity to develop written submissions at a length which they consider is consistent with best advancing the case of their client. Accordingly (although the approach is somewhat arbitrary), after hearing submissions from the parties, I propose to double the page limits specified in the revised proposed orders. But a page limit is a page limit, and the limit is inclusive of annexures and schedules.
The second matter was raised on behalf of Monsanto. Mr Craig KC entreated me to adopt an approach whereby Monsanto would be provided with the applicant’s closing submissions, and then file and serve any response by way of a short contentions document. I will not be assisted by such a course. This is not a case where there is any doubt about the way in which Mr McNickle seeks to advance his case at this initial trial. The parties have already provided extensive opening submissions identifying what might be described as their “case theory” in relation to each of the issues arising for determination. Nothing has occurred during the course of the trial which demonstrates any radical departure from the positions identified by each party prior to the commencement of the initial trial.
Accordingly, consistently with an approach which I have adopted in other large cases, I consider it is best to obtain a copy of an initial version of the parties’ closing submissions while allowing time for each party to consider the submissions made by the other and incorporate any reply submissions in each final draft. What this means is that at the end of the day, I will be left with one written submission on behalf of each party which will engage with one another and identify the universe of the matters which the parties wish me to have regard to in resolving the issues for determination.
The third matter, although somewhat related to the second, is a submission made by Monsanto that a requirement that it provides closing submissions by 1 November is oppressive. I do not doubt that such a submission is made conscientiously and following reflection by highly experienced counsel and solicitors. But I am quite unable to accept it.
This is a case where the core issues have been litigated in a number of different fora and, additionally, have been the subject of a vast amount of scientific evidence filed over a lengthy period of time. This case has taken years to come to trial, despite my best efforts to hurry it along. The solicitors acting for Monsanto are not only well-across the issues, but there can be no doubt that this case is heavily resourced. Two senior counsel appear for Monsanto, together with at least two junior barristers. Further, a large number of solicitors have been present during the entirety of the initial trial. I do not consider the deadline to be an unreasonable one, particularly given this resourcing and the fact I have encouraged the parties to prepare drafts of final submissions while the hearing is underway.
Some time ago, I explained to the parties that I thought it was consistent with the overarching purpose in Pt VB of the Federal Court of Australia Act 1976 (Cth) that notwithstanding the current demands on my docket, I will attempt to deliver a judgment in this initial trial as quickly as possible. This judgment affects many people and is not only important to them, but also to Monsanto and the general public. In my experience, the optimal time for preparing a judgment of this complexity is when all the issues are front of mind and one’s recollection of the evidence is fresh. Without the assistance of timely closing submissions, detailed impressions formed by the evidence will, at least to some extent, dissipate.
In recent days, significant time has been saved by Monsanto making a forensic decision not to call two experts engaged in the proceeding, Dr Crump and Dr Driver, thus leading to an earlier conclusion to the oral evidence than would have otherwise been anticipated. Further, no lay evidence is to be called. As I have indicated to the parties on more than one occasion, my present intention is to try to advance substantially a first draft of the judgment prior to the long vacation this year. I need timely, comprehensive written submissions to conduct this work. Such a course will assist me to formulate my preliminary views and also receive maximum assistance from closing oral addresses which, as the revised proposed orders indicate, I have fixed for 29 January 2024. At that time, I intend to receive oral submissions largely directed towards matters I regard as ones where I require further assistance or clarification to assist me in forming final views.
If I were to adopt the orders proposed by Monsanto, it would be physically impossible for me to prepare an advanced draft judgment by Christmas. Even allowing a further three weeks to elapse following the close of evidence in order for the parties to prepare written submissions (as contemplated by the revised proposed orders) is going to hinder progress on the judgment somewhat, given my commitments between now and the end of the year. Any further delay would mean I could not prepare an initial draft until next year, and hence the draft would lose the benefits of immediacy of recollection of the evidence, and my current commitments in 2024 will see finalisation of the judgment being delayed significantly. Accordingly, I will make orders along the lines of the revised proposed orders circulated by my Associate.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 11 October 2023
SCHEDULE OF PARTIES
VID 243 of 2020 Respondents
Fourth Respondent:
PHARMACIA LLC
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