As the actress said to the barrister

From Justinian's archive ... It's September 1995 and Kate Fitzpatrick v Charles Waterstreet was in full swing before Justice Brownie of the NSW Supremes ... Lots of drama as the spotlight shines on the state of discovery and affidavits ... Deja Vu

Fitzpatrick: sued Waterstreet over Elizabeth Bay flatI'll have the Brett Whiteleys, you can have the Tupperware and the Brescia beanbag, noted Thespian Kate Fitzpatrick told her former lover, Sydney Barrister Charles Waterstreet, in the Supreme Court before Brownie J.

The court room stoush between the two old horizontal folk dancers was the only thing to amuse in a jaded Sydney September.

Ms Fitzpatrick, who recently finished a stint as an arts adviser to the Bantam of the Opera and self-appointed QC Peter Collins, and her company Serini Pty Ltd are also claiming about half the value of an Elizabeth Bay flat into which she claims she put $20,000. It was sold in 1986 for a measly $88,000, but it is valued now at $230,000. The title of the flat was jointly held by Waterstreet and Serini Pty Ltd - but Fitzpatrick said she did not know till 1994 that Waterstreet was also on the title.

Also defending the action is Holman Webb partner Mark Johnson.

The trouble arose because Waterstreet wanted to refinance his debts with a Swiss franc loan from the European Asian Bank. The loan would also allow him and Johnson to dabble in the property market. The Elizabeth Bay flat was collateral security for the loan.

Fitzpatrick signed the necessary documents, but says she was "talked into it" by Waterstreet and Johnson. Waterstreet allegedly said to her: "There's no problem ... you can't lose a thing."

After things went sour the flat was sold and Fitzpatrick only got $10,000.

She says she relied on and trusted Waterstreet and Johnson as her personal legal and financial advisers.

Johnson says he was never her legal adviser, and Waterstreet says he was never in a de facto relationship with her.

Fitzpatrick's barrister, John Garnsey QC, told the court that his client had been "deprived of the only substantial asset she had managed to accumulate in her possession by reason of her professional earnings, and the only substantial asset she ever had".

Don Grieve QC for Johnson said that Fitzpatrick decided to sue out of spite because she had been snubbed at Waterstreet's wedding.

She said after the wedding: "I finally accept what everyone has been telling me all these years [about Waterstreet]. I'm going to see Michael." This was a reference to Michael Delaney, her solicitor from Gillis Delaney.

On the second day of the hearing, things started to go off the rails for the plaintiffs.

Justice Brownie made a swinging attack on the way the litigation had been handled by lawyers for the actress and her company.

Noel Hutley for Waterstreet told the court that the plaintiff had not complied with the obligation for discovery, particularly the provision of Serini's tax returns.

He said the case should not proceed until discovery had taken place, and there should be a cost penalty to the plaintiff on an indemnity basis.

Brownie J: The plaintiff's case, I feel bound to say, had not been put in the way I should have been put.

Garnsey: Is your Honour referring to discovery?

Brownie: I am referring to discovery, I am referring to the state of the affidavits, I am referring to the grossly deficient forms of some parts of the affidavits. I do not understand how any lawyer who paused to think about it for a moment have put forward affidavits in the ways they have been put forward in this case ... How any lawyer could have settled those affidavits I don't understand, but never mind that, don't be distracted by it...

The discovery does seem to be grossly deficient. That does seem to be grossly unfair to the defendants, particularly given the nature of the allegations ... As I see it at the moment the plaintiffs are horrendously in breach of the rules, in a way which, unless cured, may deprive the defendants of legitimate forensic weapons, that is to say, the opportunity to consider the documents which the plaintiffs should have discovered, the opportunity to interrogate the plaintiffs...

The plaintiffs by their conduct, as I see it, have exposed the defendants to all those disadvantages ... Those who instruct you [Garnsey] ought to consider their respective positions very carefully indeed.

While I have it in my mind, at some stage I think I wish to be addressed as to why I should not make an order under the provisions of s76(C) of the Supreme Court Act. [Orders for costs against solicitors in cases where serious negligence, incompetence or misconduct has contributed to delays in a case.]

I have never before made such an order, but I think this might be the case. Take it on board."

Garnsey was pretty upset about this and next day Brownie said that his criticism should not be taken as referring to Fitzpatrick's barrister.

"I made comments critical of the plaintiffs and the plaintiffs' solicitors, and not of their counsel, who have no role regarding discovery."

It's nice to have that set straight.

Following Brownie's remarks lawyers for Fitzpatrick worked through the night preparing and faxing affidavits. Next day the defendants applied for an order for costs, on an indemnity basis.

Brownie said that as a result of the plaintiffs being taken by surprise by a procedural application by the defendants there has only been a day of productive hearing time in three days of trial.

The judge said:

"It's my view at this stage that at the end of the hearing I should make an order that the plaintiffs pay the defendants in respect of two days' wasted time."

Also, because the case had run out of hearing time and had to be adjourned part heard till early next year, the defendants were entitled to an order for costs likely to be incurred as a result of the delay. However, he said all of that would be decided at the end of the trial.

Cohen J has also reserved an application by Johnson for security for costs.

The application was on the basis that the plaintiffs have no money and their case is doomed to failure.

Interestingly, Garnsey also acted for Fitzpatrick as junior to Murray Gleeson in the celebrated Raw Prawn defamation case against Mirror Newspapers over ten years ago. Michael Delaney was her solicitor on that occasion too.

She was awarded $10,000 by a jury following publication of a story that the actress attended a Raw Prawn Logies function, when the fact was she was at home sick in bed. The imputation was that she was skiving off from the shooting of a film called The Night Nurse with a false claim of illness.

Michael McHugh QC, as he then was, made a splendid appearance in the witness box to give evidence for Fitzpatrick.

I also read in a June 1991 edition of the Good Weekend that the Brett Whiteley portrait of Patrick White, which is now subject to this tug of war, was regarded by Waterstreet as one of his most treasured possessions. He told the anxious readers of the magazine:

"I brought it from Brett in 1981. I paid $1,200 for it then, but it would be virtually priceless now. It wasn't a bargain at the time. Brett did it over lunch [with White] in blue biro.

People from overseas think it's the actor Jason Robards, but for me it's very inspiring during those dark moments of the soul."

The plaintiffs' action was ultimately unsuccessful.