Sunday, October 4, 2020

Telling it like it is . . .

My son Thomas sent me a copy of Master Sanderson’s “not so much a judgment as a requiem” judgement in the WA Supreme Court and it is worth further sharing. Thanks Thomas. 

That judgment, part of Bell litigation, appears below in full.

Master Sanderson gets the Yay for the Day. 

Sanderson is a Master of the Supreme Court of Western Australia, appointed in 1996. 

He is well-known for his eccentric style of judgment-writing. His decisions are often brief and he makes use of humour and literary references . . . 
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Mead v Lemon [2015] WASC 71 (26 February 2015) 

Master Sanderson considered a statutory claim by a 19 year old woman for financial provision from her deceased father’s estate. In considering the daughter’s likely future needs, and the difficulty of evaluating them, Master Sanderson stated: 

“The plaintiff did say she had a boyfriend whom she hoped to marry within the next two years. She anticipated having four children. Of course it is possible after one child she might reconsider; most sensible people do.” 

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Murfett Legal Pty Ltd v Frigger [No 2] [2017] WASC 262: 

Master Sanderson, opening words: 

“This is another step in one of a suite of actions which might properly be called Mr and Mrs Frigger v The World.” 

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Giumelli v Giumelli & Ors [2003] WASC 259: 

Master Sanderson, opening words: 

"This case brings to mind the aphorism which introduces Tolstoy's tragedy Anna Karenina: 
‘All happy families are the same. Each unhappy family is unhappy in its own way.’” 

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Christie v Christie [2016] WASC 45 

Master Sanderson’s evaluation of a witness who identified as a psychic detective: 

“The final witness called by the defendant was Gabrielle Therese Crofts. Mrs Crofts is the elder sister of Ms McNamara. Mrs Crofts has a number of qualifications and has worked for a number of years in the area of domestic violence. She is also a psychic detective... In the end I determined I would not take her evidence into account in determining this application. Given her psychic powers Mrs Crofts probably anticipated this outcome.” 

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Bell Group (UK) Holdings Limited (In liquidation) [2020] WASC 347; 

Master Sanderson’s decision of September 30 2020 effectively ended the 'Bell litigation' which had been ongoing for 25 years, the most expensive and longest-running set of civil litigation in the State’s history. The decision contains the catchwords 'Ode to a dying corporation'. 

Judgment: 

1. These reasons are not so much a judgment as a requiem. 

2. This was an application to terminate the winding up by Bell Group (UK) Holdings Ltd (In liq) (the company) of Western Interstate Pty Ltd. This was one of a group of companies around which what is known as the 'Bell litigation' swirled for 25 years. 

3. Thousands of people worked on this case. Most have put the experience behind them and moved on; many, shattered by the experience, have retired; more than a few have gone mad. Now the guns have fallen silent. The smell of cordite, gun powder and napalm no longer fills the air. The dead and wounded have been removed from the battle field. The victors have divided the spoils and departed. 

4. The trial involving this company, and others, lasted for 404 days between July 2003 and September 2006. The judgment took two years and ran to 2,643 pages. The trial judge was Justice Neville Owen. No Australian judge before or since could have handled the case better than his Honour. Anyone who dips into the judgment – and I do not for a moment suggest anyone should read it in its entirety – will be struck by the detailed consideration of the evidence, the careful balancing of the issues and the clear exposition of a difficult area of the law. 

5. The defendants in the action were a group of banks. At first instance they were held liable. They appealed. Not only did they lose the appeal, they lost the cross‑appeal and the amount of damages was increased. The banks made an application for special leave to appeal to the High Court. Astonishingly, they were successful. At this point even the bare‑knuckled litigators were exhausted. The action was settled. More than a billion dollars was to be divided between the plaintiffs. 

6. The plaintiffs then set to squabbling among themselves. For years they had an uneasy relationship with one another but were united against a common foe. Now the prospect of vast riches proved too much. The relationship rapidly became poisonous. Years passed and no resolution proved possible. The battle lines were drawn. The State government attempted to resolve the matter by effectively confiscating the proceeds of the case and paying to each of the parties what they deemed to be a fair entitlement. This strategy failed spectacularly – the legislation was struck down by the High Court. At a directions hearing, not long after the High Court decision, I was told by counsel they anticipated the trial of the issues between the plaintiffs would take longer to hear than the original case. A date was set for trial. Then someone blinked. Further negotiations took place. Mercifully, the matter settled. 

7. Over the years, I dealt with the case on more than a dozen occasions. Most of these hearings were for judicial directions. It was clear there existed between counsel a mutual loathing. That was probably due to frustration – not only frustration with the glacial progress of the case, but frustration with the clients. Occasionally, agreement was reached – the time of the day, the day of the week – but agreement was otherwise rare. Invariably, the liquidator was represented by Vaughan SC (as his Honour then was). There were times when I thought even his sphinx‑like visage would crack. But somehow, the matter edged forward. Now it is settled and it remained for me to give this, and other companies in the group, a decent burial. 

8. It was tempting to drive a wooden stake through the heart of the company to ensure it does not rise zombie‑like from the grave. As an alternative, I considered ordering the files be removed to a secure facility in Roswell and marked: 'Never to be opened'. In the end, trusting in divine providence, I made the following orders: 

The applicant have leave to discontinue the winding up application. 

The applicant's winding up application is hereby dismissed. 

There be no orders as to costs as to the winding up application. 

9. Amen. 

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One final note: 

In 2013 Master Sanderson was at the forefront of uncovering fraudulent acts by South Australian lawyer Stephen McNamara. In a dispute centring on legal costs, Master Sanderson's judgement opened with the observation: 

“1. This looks very much like an attempt by the defendant to extort money from the plaintiff. There may be a more benign explanation for what the defendant has done but it is difficult to see what that might be". 

Further extracts from the judgment: 

24. Finally, there is the offer to settle on payment of $25,000 for costs. It may be that Mr McNamara is one of South Australia’s leading corporate lawyers. If that is so, this case does not represent his finest hour. But even assuming high competence on the part of Mr McNamara there is no possible way the defendant’s costs could have amounted to $25,000. No appearance was filed, no affidavits in opposition to the application were lodged, it would appear submissions to be made on behalf of the defendant were drawn by Mr Pearse and the totality of Mr McNamara’s involvement was three or four letters. Really this demand for ‘costs’ is no such thing. It was tantamount to extortion. 

26. I intend to refer these reasons to the Western Australian Police Service for such action as they deem necessary in relation to Mr Pearse. I will also refer a copy of these reasons to the authorities in South Australia who regulate the legal profession to take such action as they deem appropriate in relation to Mr McNamara. 


In November 2019 lawyer Stephen McNamara was sentenced to 9 years jail for stealing $850,000 from two deceased estates and fabricating documents to cover his tracks. He used the money to pay his mortgage, personal credit cards and staff wages. McNamara had been a lawyer for more than 35 years at the time of the offences. He will be eligible for parole in five-and-a-half years after he was found guilty of 33 charges of theft and fabricating evidence in the Adelaide District Court. 

He has appealed against the guilty verdicts.

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