Smacking of pure arrogance

QC drafts letter for Allens, which makes "thinly veiled" threat to Vic CJ ... "Grossly improper" attempt to influence the court ... Full throttle grovel 

Warren CJ: court accepts apology for indefensible letter from Allens

A PARTNER and a senior associate of Allens in Melbourne issued a massive grovel to the Vic Supremes over a threatening letter they sent to Chief Justice Earl Warren. 

Allens was acting for Australia Post in a trademarks appeal in the Full Feds. Notable Melbourne QC Rodney Garratt had been hired to saddle-up. 

Unfortunately, Rodney was stuck in the VicSupremes in a commercial case involving parties in love with the letter "X" - Contexx & Nominexx v Austexx & Ors. 

The case was dragging on and it didn't look at though Justice Jennie Davies was going to adjourn it part-heard so that Rod could pop along to the Full Feds for Allens and the postie. 

Instead of giving thought to whether Garrett's competent junior in the Contexx case could soldier on, Allens sent a missive to Warren CJ saying, in so many words: if we can't have an adjournment we will be reluctant to file further cases in the commercial list of the Supreme Court of Vic. 

Warren was away, but the correspondence soon bounced around the court causing incandescent reactions, with judges choking on their Iced Vo-Vos at morning tea. 

Aileen Ryan SC, herself a former Allens senior associate, appeared before Kim Hargrave (May 13)  on behalf of the two Allens IP gurus - misspelled in the transcript as "Mr Goulder and Mr Glesson". 

"I am instructed, Your Honour, to say that both practitioners unreservedly apologise and sincerely apologise for sending what was, in hindsite, a very inappropriate and indefensible letter to have sent. They realise now the consequences of the actions and are extremely remorseful and happy to make that apology to Your Honour in person, if needs be." 

It turns out that the letter dispatched by the Allens' boys was actually drafted by Garratt (misspelled in the transcript as Garret). 

Aileen dropped Rodney right in it: 

"In the terms of the contents of sending that letter, it's not an excuse but the explanation is that it was drafted by senior counsel, Mr Garratt. He recommended that the advice - that that letter be sent." 

HH said he was "concerned" to hear that piece of news. 

"The letter contains, I think, a thinly veiled threat ...

For solicitors or counsel, senior counsel at that, for a non-party, to endeavour to pressure the Chief Justice to influence the conduct of a trial judge in a part-heard case can have no justification ...

Such conduct smacks of pure arrogance." 

There were further horrors. The Allens' letter had not been sent to the other parties in the part-heard Contexx case. 

HH thought this was, "grossly improper, tantamount to seeking to influence the conduct of a part-heard trial by secret communication with the court".  

HH: "Senior counsel, a partner and a senior associate should know better. I hope you're about to tell me that it was copied to the other parties." 

Ms Ryan: "No, it wasn't your Honour ..."

As it eventually turned out counsel for the other side in the Contexx case were prepared to "accommodate" Rodney, so Justice Davies would not need to sit on the two days he was off in the Full Feds. As Hargrave concluded: 

"So I would say simply, gentlemen, in future exercise your own judgment, as Ms Ryan has frankly acknowledged that you both ought to have done. 

Mr Garratt, perhaps given the very difficult position in which he was placed, wasn't placed to give you objective advice about this and although understandable that you've adopted correspondence he has drafted, I'm fortified to hear that you appreciate it was not justifiable … I, of course, accept the apology which has been given." 

Phew!

Read transcript