Justice Matthew Howard of the WA Supremes delivered a hefty right hook to the principal of a boutique Perth law shop in a tortured case about remediation of contaminants at a service station on the Albany Highway.
The plaintiff, Mahomed Badat, wanted BP Australia to fix the petroleum hydrocarbon contamination at the site so it could be classified by the Department of Water and Environmental Regulation as “decontaminated” or “not contaminated – unrestricted use”.
BP claims its task is to remediate the site so it can be classified “remediated for restricted use”. The oil giant contends that Mahomed contributed to and/or failed to take reasonable steps to mitigate the damage. Much depends on construction of the Contaminated Sites Act.
It seemed to generate massive amounts of paper and weighty submissions, with The Wyles One KC from Melbourne flying across the continent to look after the plaintiff.
Trouble arose when Mr Badat wanted to adduce further evidence and make objections to jointly appointed experts.
At a directions hearing on January 22, 2026, HH made orders for the plaintiff to file and serve any further proposed witness statement, no later than January 23.
The date came and went with no new bits of paper filed. It was not until February 4, 2026, at 5.39 pm that the plaintiff filed an affidavit from one of his solicitors, Brendan John Finn – perilously close to the date the trial was to commence.
Annexed was a lengthy witness statement from Mahomed Badet dated January 30 and another on February 3, along with annexed documents.
The January 30 statement ran to about 90 paragraphs of substantive evidence across 24 pages and annexed 67 documents.
HH found there was no “cogent and compelling evidence” to support the application for the plaintiff’s further evidence. He hastened to add that this was not a criticism of Mr Finn, who is “a comparatively recently admitted solicitor who is an employed solicitor”.
The responsibility falls to Alan Skinner, the principal of Hale Legal, representing Babat.
Poor Brendan apologised to Justice Howard, explaining that “Hale Legal is a small firm with a limited number of solicitors available to assist me in the conduct of this matter”.
While not doubting the sincerity of Finn’s apology, the explanation he advanced in relation to the witness statements was, “at its highest, thin”.
“Any idea that it is appropriate for a more junior practitioner to be taking responsibility on oath for the failings of more senior practitioners is to be rejected outright. Responsibility is not to be moved downwards.”
HH was just warming up:
“It is regrettable, to say the least, that on such an important application so close to trial, the senior practitioner who is a principal of the firm with the day-to-day conduct of the proceedings did not make an affidavit nor seek to explain adequately the plaintiff’s delays and noncompliance with the Court’s orders.
In my view, it should not have been left to Mr Finn to make such an affidavit. The demands of this case must have been apparent well before the beginning of this year, given that the firm has been on the record since 12 June 2025, and had already represented Mr Badat.”
Ultimately, The Wyles One did not press the application and objections, which were “doomed to fail”.
BP was given liberty to apply for indemnity costs associated with the late application of February 4.
Mahomed and his lawyers subsequently made an application that Justice Howard recuse himself for apprehended bias.
The application was dismissed.
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Last year, we reported that laggard Justice Jenni Hill at the WA Supremes had nudged the accelerator, but a couple of files have still managed to stay in her bottom drawer.
Franco-Nevada Australia Pty Ltd v Southern Iron Pty Ltd was heard on May 20-25, 2024, with delivery on February 24, 2026. That’s a delay of 21 months, with Jenni issuing one of her boilerplate explanations:
“The hearing of this matter took place in May 2024. Unfortunately, it has not been possible to finalise my reasons for decision before now.”
Nonetheless, everything is shipshape because her conclusion on credit and reliability of the only witness was written shortly after the trial, and she has refreshed herself with notes and transcript.
The case was a battle about whether deeds of company arrangement extinguished Franco-Nevada’s entitlement to royalties under a pre-existing royalty deed.
Then there was Pilbara Ports Authority v Mineral Resources Limited – heard on February 20, 2025 and delivered by Justice Hill on February 27, 2026.
That was a comparatively snappy 12 months, although it seems rather a long time to determine a discovery application.
Ian Jackman’s one-month rule is well and truly out the window.
Here is a smattering of Justice Hill’s delays, which we have had the sorry duty to report …
Recusal report – September 23, 2022
Up Hill – October 12, 2022
Western Mail – November 15, 2022
Morpheus arises – February 7, 2023
Delays, fees and rubbish removal – February 24, 2023
Fresh hell – see Hill tops – March 17, 2023
Laments from across the Nullarbor – May 11, 2023
Loitering on the bench – July 21, 2023
From out of the West – September 26, 2023
Close to the source – see Rock and a hard place – December 8, 2023
Slumbering snails – March 15, 2024