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Not seeing the wood for the trees

Gunns Ltd was established in 1875. It is Australia’s largest integrated hardwood and softwood forest-products company.

In 2004, Gunns’ logging operations were coming under increasing attack from environmental groups. Apparently, Gunns found those attacks irritating. On 13 December 2004, it filed a writ against 17 individuals (including Greens senator Bob Brown) and three corporate entities: the Wilderness Society, the Huon Valley Environment Centre, and Doctors for Native Forests. The writ was accompanied by a 216-page Statement of Claim comprising more than 500 paragraphs. It claimed damages (including aggravated and exemplary damages), injunctions, and costs for disruption of the plaintiff’s businesses allegedly caused by the defendants.

An average Statement of Claim might run to 10 or 20 pages; in earlier times, a claim was more likely to be just a few pages long. For anyone experienced in litigation, a Statement of Claim that runs to 216 pages seems extravagant: all 20 defendants were startled to see how bloated the claim was. It identified nine different ‘actions’ in which various of the defendants were said to have been involved from time to time. These were given evocative names, including the Lucaston Action, the Triabunna Action, the Styx Action, the Burnie Action, the Japanese Customer Action, and the Banks Action.

These ‘actions’ were alleged to have been part of a ‘Campaign Against Gunns’. Details of the campaign were said to be found in paragraphs 14 to 525 of the Statement of Claim.

Some defendants were alleged to have been involved in just one or two of the alleged ‘actions’. No defendant was alleged to have been involved in every ‘action’. All the defendants foreshadowed that they would seek to strike out the Statement of Claim. Then, shortly before the strike-out application was to be heard, Gunns produced a proposed Amended Statement of Claim. In it, there was a significant increase in the number of allegations of fact with respect to the cases on conspiracy, especially with respect to the logging-disruption campaigns. There was also a change in the way in which the plaintiff sought to combine all of the individual tortious claims into the ‘Campaign against Gunns’. The defendants resisted Gunns’ application to file the Amended Statement of Claim, which was 150 pages longer than the original, and just as complex.

The judge who heard Gunns’ application noted that ‘the function of a statement of claim is to set out with sufficient clarity the case which the defendant must meet …’ He said in his ruling:

Although in respect of each of the forest actions named, defendants have specific allegations of tortious conduct made against them, because of the various allegations of agency in amended statement of claim (including in the introductory paragraphs to which reference has already been made) and the extensive and confusing cross-referencing used in substantive paragraphs and particulars, it would be extremely difficult, if not impossible, for any particular defendant to determine with certainty whether he or she was alleged to be liable for any particular act of tortious conduct in respect of any particular forest action. One has only to embark upon the exercise of trying to ascertain exactly what is alleged against any particular defendant to rapidly come to the realisation that not only is the exercise an extremely frustrating and barren one, but it is also one not likely to lead to a certain conclusion. Thus, the pleading fails its fundamental purpose of informing each of the defendants of the case he, she or it has to meet.

The judge refused Gunns’ application to file the proposed Amended Statement of Claim. He said:

The criticisms made of the amended statement of claim in this ruling are by no means all those that could have been made. As the pleading will not be permitted to be placed on or remain on the record, it would be a singularly unprofitable exercise to attempt to describe every defect in it which needs correction …

In August 2005 (eight months after it had first issued proceedings), Gunns sought to file a third version of its Statement of Claim. Version 3 was 221 pages long, and ran to 714 paragraphs. The judge struck it out.

Gunns eventually broke its case into smaller components, discontinued its action against some defendants, and finally settled against all defendants. It did not recover damages or costs from anyone. It paid the costs of some defendants.

Whether Gunns regarded its litigation strategy as successful is less clear. The defendants had achieved a series of wins against it. On the other hand, Gunns had succeeded in locking a number of defendants in litigation for years: the last parts of the action finally settled about five years after the litigation started. It is all too easy (for lawyers especially) to overlook how stressful litigation is for individuals, especially individuals for whom losing a case might mean financial ruin. It is not hard to imagine that the board of Gunns might have been told that the litigation had at least kept the defendants off the barricades for a long time.

Most people who have been litigants would agree that litigation is not a game for the faint-hearted — especially so when the contest is one of David and Goliath, where a large, well-resourced company sues an individual who can never hope to match the financial strength of the other side.

Despite our best endeavours, there are times when our justice system seems to embody the theory of justice outlined by the Athenians to the Melians: the strong do what they can, and the weak suffer what they must.