Friday, November 18, 2005

The NSWSC shows its common sense

I always love reading Einstein J, because you can always say 'well, he's not called Einstein for nothing'. This one is strictly for law students or lawyers (I am going to post most of a judgement, so non-techies feel free to not read on...)

This case deals with the third runway at Botany Bay, Sydney Airport. It is being heard in the NSWSC and deals with problems arising in the construction of the new runway. The catchwords read:

Courts -Responsibility of Court to remind parties that common sense can sometimes lead to a negotiated accommodation.

The headnote reads:

Direction to legal advisers to communicate observations of court to chief executives of parties

In any case, here goes with the judgement. Go on, it's only 6 paras:

'''Overview of the Present Position

10 These observations are made from a courtroom with hundreds of volumes of documentary evidence lining the walls. We are presently at the end of the 20th hearing day. The transcript currently extends to across 1500 pages. The outline overview submissions extend to approximately 450 pages. There are nine counsel briefed, eight of whom are regularly at the bar table every day. The amounts and matters at stake are of high moment, including a dispute over legal obligations to remediate the problems encountered at a major piece of infrastructure, namely the third or parallel runway at Sydney airport.

11 The Court is well aware that the parties will from time to time have given close consideration to their respective positions and by now may well have determined that the proceedings must continue to curial determination. Nonetheless, in my view common sense suggests that even at this stage the parties revisit the prospects of settlement. The amount of time likely to be taken in the ultimate determination of the parties' rights at first instance and on appeal should be closely considered. The panorama of legal and factual issues falling for determination plainly bespeaks the need for a calm re-assessment of the current path being pursued. Likewise, the huge legal costs as well as the cost to the parties of the continuing involvement of officers and staff bespeaks a need to revisit the parties' current positions.

12 In that environment I have come to the view that it is now appropriate to direct the legal advisers to each party to communicate these observations to their respective clients and in particular to the chief executive of each party. The Court so directs.

13 Nothing in these observations should be taken as suggesting that the Court has reached any decision on any issue. The decision will be reached after the taking of all evidence and after the parties have been heard in final submissions.

14 At times such as the present the Court has a responsibility to remind the parties that common sense can sometimes see a result by way of a negotiated accommodation as opposed to the parties taking the risks always associated with litigation of any order, let alone litigation of the present scale.


15 I direct that the legal advisers to the respective parties communicate those observations to their respective clients and in particular to the chief executive of each party. '''


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