Commercial Litigation: Drawing upon History to Embrace Future
BY
The Honourable Justice Declan Kelly - Supreme Court of Queensland
47 Views
Wednesday 4th June, 2025
Commercial Litigation: Drawing upon History to Embrace Future
Written version of a presentation delivered at the Bar Association of Queensland Annual Conference at the W Hotel, Brisbane, on 1 March 2025 by the Honourable Justice Declan Kelly.
Good afternoon and thank you to the Bar Association for the invitation to speak.
The age of artificial intelligence and blockchain
Lord Hodge said in 2022 that “[t]he potential of digital assets, enhanced computing power and artificial intelligence to change our economy and society poses a challenge to all countries’ legal systems”.[2] The challenge identified by Lord Hodge encompasses a challenge to what we loosely call the Rule of Law.
The “Rule of Law” is sometimes used as a slogan or as a label. It is an expression often bandied around but not always clearly understood. In 2011, Lord Bingham published a book, “The Rule of Law”,[3] which identified the concept of the Rule of Law by reference to eight salient features.
This afternoon I wish to draw upon five of those features, which particularly resonate in the field of commercial law.[4]
Firstly, the law must be accessible, intelligible, clear and predictable.
Secondly, questions of legal rights and liability should ordinarily be resolved by the exercise of the law rather than by discretion.
Thirdly, the law should apply equally to all.
Fourthly, the State must provide a way of resolving disputes which the parties cannot themselves resolve.
Fifthly, adjudicative procedures provided by the State should be fair.
It is really the first, fourth and fifth criteria that are most relevant to my presentation.
The central premise of Lord Bingham’s work is that “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made … and publicly administered in the courts”.[5]
An effective system of adjudication by the courts
In February 2022, during a speech given at Pembroke College, Oxford, the Lord Chief Justice, Lord Burnett of Maldon added one elucidation to Lord Bingham’s criteria, which was:
“The Rule of Law depends upon an independent judiciary with individual independence in their decision making and institutional independence … to ensure an effective system of adjudication and to ensure that the powerful … have no advantage in the courts”.[6]
One matter I want to particularly emphasise is that the Rule of Law contemplates an independent judiciary making decisions in an effective system of adjudication. I would like to suggest one further elucidation to Lord Bingham’s list. Just as the Rule of Law depends upon an independent judiciary, it also depends upon a thriving, independent bar. A thriving independent bar is one comprised of individuals with specialist skills who are renowned for their independence and ethics. To describe the bar as independent, specialist and ethical is a description which is reflective of the bar’s heritage. The barristers who practised during the 20th century and established the standing and reputation of the Queensland Bar, were resolutely independent. They were not marketers or networkers. Their ethics precluded them from engaging in such practices. They were briefed solely on the basis of reputations, established and earned through their professional conduct. The late DF Jackson AM KC often remarked that the bar is a “meritocracy”, an association of persons whose reputations are assessed on merit. Hopefully any young commercial lawyer who comes to the bar today, does so because of a wish to practice independently, ethically and to develop specialist skills.
“Just as the Rule of Law depends upon an independent judiciary, it also depends upon a thriving, independent bar. A thriving independent bar is one comprised of individuals with specialist skills who are renowned for their independence and ethics.”
Before I sit down today, I hope to shed some light on why, in the context of modern commercial litigation, an independent bar, meeting the description of a meritocracy, is likely to be more, not less, important to the maintenance of the Rule of Law in the future. We may proceed on the premise that an effective system of adjudication in the commercial law context is one that broadly mirrors the objects of r 5 of our Uniform Civil Procedure Rules.[7] A system involving the just and expeditious resolution of real issues and avoiding undue delay, expense and technicality. Effective adjudication involves expedition and an absence of undue delay. That of course extends, not just to the interlocutory steps, but to the trial and ultimately to getting the decision out; delivering the judgment.
The expeditious delivery of the judgment is the ultimate responsibility of the judge. I want to clearly acknowledge that reality. The responsibility of delivering a timely judgment is very significant and the burden of that responsibility tends to weigh heavily on judges. What I find is that you tend as a judge to approach judgment writing in the order in which you hear cases. Some cases which are well argued, are able to be decided quickly. Every now and then, you hear a case that has not been well prepared or argued and the judgment for that type of case inevitably takes much longer to write. It is at this point when there is a palpable effect on the administration of justice because the judge takes longer to write that judgment and the delay in writing that judgment affects the timing of the judge’s decision in other cases that have been heard, well argued and which are deserving of a timely decision. So, as barristers, you need to be aware that a badly prepared and run case can have consequences for the administration of justice beyond that case.
The timely delivery of court judgments is likely to assume particular importance in the modern age of technology and artificial intelligence. In the future, if the court process from filing to judgment takes too long, there is a real risk that commercial litigants will look beyond the courts to resolve their commercial disputes by alternative methods. The alternatives may not necessarily involve commercial arbitration or mediation but involve the use of artificial intelligence and involve parties being prepared to accept “near enough is good enough”, but timely, resolutions and outcomes. It will not necessarily be a good thing for the Rule of Law, or the bar, if prospective litigants come to prefer “near enough is good enough” outcomes dictated by applications of artificial intelligence.
We live in a streaming society in which people demand and expect instant results and answers. Our society is no longer prepared to wait for a cheque to clear or for a parcel to be delivered outside of 24 hours. Entire TV series are binged watched in a day. We might hazard to guess that some people in the room today, as I am speaking, might be watching on their phones a TV series or a horse race. Frankly, I don’t blame them. But the point is that, given our new norms of social behaviour, the future titans of commercial industry are unlikely to be prepared to wait very long for the delivery of a court decision in a commercial dispute.
The culture of instant gratification is emerging in a social environment in which, I think it is fair to say, there exists the constant spectre of diminishing respect for the institution of the courts. An indicium of that diminishing respect is the way in which some civil litigants treat court directions and orders. One thing that struck me when I became a judge is how common it is for commercial litigants to not comply with court directions without any explanation or forewarning to the court. That approach to civil litigation is hard to fathom when you think that, apart from the directions being a court order, the obtuse non-compliance occurs in the context of procedural rules which contain a specific rule, r 5(4), which provides that the court may impose appropriate sanctions if a party does not comply with a court order or direction. Listed companies rightly treat reporting obligations and takeover bids as required all-hands-on deck, 24/7 imperatives. It is not usual to encounter commercial litigants who treat the preparation of a commercial court proceeding with similar devotion. We should strive to return to a situation where if you are litigating on the Commercial List there is an unwavering expectation that the parties will give high priority to the preparation and conduct of the case.
In the context of the increasing challenges to achieve the expeditious resolution of the real issues at a minimum of expense, there are vitally important roles for the independent, ethical barrister to perform to assist or aid the judge’s endeavour to produce a timely judgment; that is, to actively assist in an outcome which reflects effective adjudication within the court system. Although our young people are often today confronted with messages of doom and gloom, I believe that in this period of immense uncertainty associated with the future use and development of technology and artificial intelligence, commercial barristers who are specialist, independent and ethical, have a bright future in which they are likely to continue to occupy a unique position in the profession, enjoying the particular trust and confidence of the court.
“…I believe that in this period of immense uncertainty associated with the future use and development of technology and artificial intelligence, commercial barristers who are specialist, independent and ethical, have a bright future in which they are likely to continue to occupy a unique position in the profession, enjoying the particular trust and confidence of the court.”
Lord Mansfield’s response to the Industrial Revolution
Some of my ancestors were Luddites, Irish convicts who were sent to Australia for reacting to the Industrial Revolution by physically destroying machines. By definition, a Luddite is “someone who is opposed to new technology or ways of working”. A Luddite has become a euphemistic expression to refer to “a small minded person who resists progress”. It is somewhat ironic that the Bar Association has asked me, a descendant of a Luddite, to come along this afternoon and place a positive spin on technological change. Further, in speaking to you today, I am very conscious of my Irish ancestry and of Yeats’ observation that the Irish have an abiding sense of tragedy which sustains them through temporary periods of joy. But I promise for the next few minutes to embrace the glass is half full approach and to convey a message which I believe is fundamentally optimistic.
One person who could never be described as a Luddite, is the father of English commercial law, Lord Mansfield.
Lord Mansfield had a very different kind of reaction to the great changes that lead to, and were caused by, the Industrial Revolution. Lord Mansfield is widely regarded as having shaped the English common law to enable it to serve and further the objects of the Industrial Revolution. The changes effected by Lord Mansfield involved reworking categories of the legal system to accommodate new economic conditions and new transactions. Most notably, what the English judges incorporated into the existing common law was commercial practice and by doing so they composed the commercial law. Lord Mansfield famously tried cases with a special jury comprised of experienced merchants from whom he developed a clear understanding of prevailing commercial practice. He used those juries to ascertain mercantile practices which could be, and were, brought into the common law. He dined with experienced merchants to ascertain their requirements for and expectations of a commercial court.
The development of the commercial law against the background of the Industrial Revolution occurred in a context where the major business players longed for and desired outcomes which we now equate with the Rule of Law. One matter which Lord Mansfield identified was that the business community at the time of the Industrial Revolution wished to conduct their affairs confidently by reference to settled principles. That is, and this is an important point, the industrialists at the time of the Industrial Revolution wanted to operate and conduct their business within the Rule of Law. They wanted efficient, certain justice from the courts.
As a result of his collaboration with the business community, Lord Mansfield was able to construct a certain and settled system of principles and rules upon which merchants, lawyers and judges could rely in administering the commercial law. In 1774 in Vallejo v Wheeler,[8] Lord Mansfield famously said:
“In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other. Because speculators in trade then know what ground to go upon.”
Far beyond the 18th century, the great commercial judges have always recognised a need to ensure that the commercial law serves the needs of the commercial community. When his Honour ran the Commercial List in the Supreme Court of New South Wales in the 1980s, the Honourable Andrew Rogers AO KC would invite leaders of the Sydney business community to court to observe him hearing the applications in the Commercial List. That was apparently in an effort to engender confidence in the business community in the daily work of the commercial court.
As a profession, we need to be conscious of the expectations of the business community we are serving. In 1984 in an article called “Commercial Contracts and the Commercial Court”,[9] Lord Goff famously wrote “[Judges] are there to give effect to [the businessman’s] transactions, not to frustrate them: we are there to oil the wheels of commerce, not to put a spanner in the works, or even grit in the oil”.[10]
In 1895 in the United Kingdom, the commercial courts were established primarily in response to the business community’s call for a specialised system of tribunals for commercial cases. Merchants at the time were dismayed by unnecessary delays, technicalities, and the cost of litigation in the Queen’s Bench Division. The business community sought to be relieved from technical rules and procedure and demanded speed and adjudication. At this time, commercial tribunals already existed in civil law jurisdictions in Europe.
The economic value of the Rule of Law
Today the Commercial Court along with the Chancery Division, the Admiralty Court and Technology and Construction Court exist in a single building in London, the Rolls Building, which the English proudly boast is “the largest specialist centre for the resolution of financial, business and property litigation anywhere in the world”.[11]
London also has a Financial List which began operating in October 2015, which is a list of financial market matters which involve more than 50 million pounds or equivalent, require particular expertise of financial markets, and raise issues of general importance to the financial markets.[12]
The English are acutely aware of the value to the United Kingdom of the Rule of Law from a financial perspective. A number of judges in the United Kingdom have written recent papers emphasising the hidden financial value of the Rule of Law to the English economy. The articles refer to the English commercial law as “the gold standard” and as being a “hidden treasure of the economy”. Some statistics are worth noting in passing. In 2019, the total revenue to the United Kingdom from legal activities was 36.8 billion pounds, 365,000 people were employed across the United Kingdom in the legal profession, the English legal system secured 7% of global legal services fee revenue (that is 7% of $713 billion USD in revenue), and in Europe the United Kingdom accounted for one third of all Western European legal services fee revenue.[13] In a report prepared by TheCityUK, “Legal Excellence, Internationally Renowned UK Legal Services 2021”,[14] more than 2,100 members of the Bar of England and Wales are said to now receive instructions from abroad, earning more than $360 million pounds from those international instructions. The United Kingdom Bar Council figures show that the number of barristers who act for clients located abroad has more than doubled over the past decade.[15]
In 2021, 74% of the cases in the English Commercial Court were international in nature.[16] A report of that year prepared by Oxera on the economic value of English law expressed the conclusion that English law was an underappreciated national asset that underpinned significant economic activity in the United Kingdom.[17] The Rule of Law was noted to be an important reason why the United Kingdom was an attractive place to do international business. We can all remember that in the pre-Brexit era, Russian Oligarchs consistently chose the London commercial courts as their preferred forum in which to determine their business disputes. They were attracted by the adversarial system, the excellence of the advocacy, the application of settled principle and the prospect of an independent, timely, well reasoned decision.
There are some important themes that can be drawn from the English commentaries.
Firstly, the English fairly acknowledge that the unique position of English law in international commerce is in part the result of what may be described as the “first mover advantage” which is the result of the way in which the commercial law developed in England and especially in London.
Secondly, one legitimate way of measuring the strength of the Rule of Law in a community or jurisdiction is to consider the extent to which businesspeople wish to transact and conduct commercial litigation within your jurisdiction.
Thirdly, there is a genuine public interest in a thriving commercial law profession; the English judges rightly adopt the premise that the judges and the lawyers must perform their work in such a way as to attract commercial work to the jurisdiction.
Fourthly, we must be conscious that jurisdictions now unashamedly compete to attract commercial work; the English continually recognise the “threat” posed by the developing centres for commercial arbitration in Singapore and more recently in Malaysia.
The case for growth in commercial law in Queensland
After having spent far too long lauding the English, I now want to turn to the optimistic part of my presentation and focus on Australia but more particularly, our State of Queensland.
Why should we be confident that Queensland has a bright future as a centre of commerce and industry and as a place to effectively resolve commercial disputes consistent with the Rule of Law?
There is a lower risk of doing business in Australia than in the United States and the United Kingdom, and a significantly lower risk of doing business in Australia than in just about all of our Asian/Pacific neighbours, Singapore being a notable exception.[19]
Australia is the 12th biggest economy in the world and Queensland, on its own, has a gross domestic product comparable to Hong Kong and larger than New Zealand and some European nations.[21]
South East Queensland is the fastest growth region for tech jobs in Australia. The State’s AgTech market is projected to triple to $45.4 billion by 2026.[23] In 2021 to 2022, Queensland’s computer and technology services exports increased by 68% and our capital is now regarded as a rapidly growing tech sector.[24]
In 7 years’ time, we will be hosting the Olympics and Paralympic Games. We are on the cusp of becoming an Olympic city and our city will soon transform before our eyes. We can expect the next 7 years to be a period of not just infrastructure projects but intense commercial activity. International businesses, including consulting businesses, will establish offices in Brisbane in the years leading up to the Games. Through innovation and technology, the major professional sports are likely to become even more profitable than they currently are. We have seen in the last 12 to 18 months that the investment model for professional sports in the United States has changed rapidly with investment banks and technology companies, for the first-time becoming stakeholders in major sporting franchises. The business of sport is a growing global economic phenomenon. You can expect by the time of the Olympics, Queensland will be a world leader in the high-performance sports tech sector and that the value of that industry will be very significant.
Six industries have been identified as having the most potential to drive Queensland’s future economy:[26]
Renewable energy manufacturing and infrastructure development.
Critical minerals processing and manufacturing.
Battery industry development.
Green hydrogen production.
Resource recovery and recycling.
Bioeconomic, including sustainable aviation fuel.
I would add to this list. Space technology and Defence industries, including the opportunities presented by AUKUS. A company based on the Gold Coast and in Bowen, Gilmore Space, has recently confirmed that its first orbital rocket, Eris, is set for launch on March 15 of this year. That is, in two weeks’ time. This launch will be Australia’s first domestically designed and built rocket attempting to reach orbit. Gilmore Space has engineered not just the rocket technology but the Bowen Orbital Spaceport. The main investors in the company and the multimillion-dollar investment associated with the business and infrastructure include QIC and some major superannuation funds. Black Sky Aerospace is another local company that is designing and building rockets for use by the Australian Defence Force. In December 2022, that company successfully fired an Australian first training rocket for use by the Australian Defence Force.
I mention these two companies only to indicate that within our region there are major developing commercial undertakings involving cutting edge technology, which businesses are likely to significantly expand in the future rather than contract.
Finally, it is important to have some appreciation of the background of modern-day Queenslanders and the modern community the Queensland Bar serves. For the Rule of Law to thrive in Queensland, every member of our multi-cultural population must feel confident that they can be assured of a fair and impartial hearing and that their interests can be adequately and competently represented by our Bar. Prospective international litigants need to feel the same sense of assuredness in order to prefer or choose Queensland as a jurisdiction in which to litigate. We should not behave or conduct our work in a parochial or Queensland-centric way. We need to aspire to have a bar, the membership of which is truly reflective of our diverse multi-cultural society. That’s not a woke aspiration but a very pragmatic aspiration. A genuinely diverse and multicultural commercial bar is necessarily going to engender more confidence throughout our community and internationally.
“A genuinely diverse and multicultural commercial bar is necessarily going to engender more confidence throughout our community and internationally.”
Hopefully from that brief overview it is apparent that Queensland is likely to grow and change dramatically in the foreseeable future and one of the features of that growth will involve significant commercial and business activity in emerging technical industries. Having provided that brief overview of where we are at and who we are, I would now like to briefly look at the past and outline some features of historical commercial litigation in Queensland.
A brief history of commercial litigation in Queensland
Queensland had a Commercial Causes Act in 1910.
Figure 6
Figure 7
Figure 8
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We should not pretend that concepts of expedition, minimum expenditure and flexibility are creations of the UPCR. At the turn of the 20th century, judges of the Supreme Court were empowered in respect of commercial disputes to give directions which in the judges’ opinion were expedient for the quick and inexpensive determination of the questions in the action. You will see the expression and the inquiry as to what was “really at issue between the parties”. This Act was passed at a time when the material fact model of pleading was strictly enforced. Today, we regularly encounter lengthy narrative style pleadings, sometimes occupying hundreds of paragraphs. Yet even though back in this time the courts were only dealing with concise, material fact model pleadings, the legislature still recognised that a judge should be able to dispense with the pleadings entirely. The judge in the Commercial Causes List could settle the issues for trial.
At the turn of the last century there was also a power within the Commercial Causes Act which concerned the situation where there was a commercial dispute as to the construction of a commercial document or the application of a document to any facts. In such a case any party to the dispute was empowered to apply to a judge in chambers for the determination of the questions involved in the dispute “notwithstanding that no commercial cause has been commenced”. That kind of application was returnable on two days’ notice and was required to be supported by an affidavit. In the context of such a dispute and application, where it became necessary for the determination of the dispute to decide question of fact, the judge was empowered to decide the question “forthwith”.
Those provisions reflect a consciousness of the need to decide commercial questions expeditiously and by reference to flexible procedures.
The Commercial Causes Act of 1910 was a very succinct and well drafted piece of legislation. The Commercial Causes jurisdiction fell into decline around the time of the Great Depression and took some time thereafter to revive.
The jurisdiction was revived under the stewardship of the Honourable Mr Justice Connolly. One notable piece of commercial litigation in the Connolly era is Gould v Vaggelas.[28] That litigation was described in the High Court as a “complex dispute involving many parties and many allegations”.[29]
By way of synopsis, a husband and wife had been induced by misrepresentation to purchase on behalf of a company yet to be formed and controlled by them, a tourist resort on terms which included the transfer to the vendors of valuable property and a mortgage back to the vendors to secure the balance of the price. The company was formed and the purchase was completed. After nearly two years of unprofitable trading the company defaulted. The vendors exercised their power of sale as mortgagees to recover the deficiency and sued the husband and wife as guarantors. Having suspected fraud, the husband and wife counterclaimed for damages for deceit. The company was wound up, the liquidator had no funds with which to take proceedings against the vendors in the Supreme Court. The husband and wife recovered damages on their counterclaim which were reduced by the Full Court on appeal. The appeal to the High Court was successful. The litigation involved important principles as to the measure of damages for deceit and whether the principals of a company yet to be formed who became its sole shareholders on formation and suffered a loss distinct from losses suffered by the company might sue independently to recover those damages.
On the first day of the trial, apparently without notice, the plaintiff made a concession which meant that there was nothing left of the claim and only the counterclaim remained in issue. There was no adjournment. Counsel for the counterclaiming defendant was immediately called upon to open and conduct the case for the defendant.
The trial was then conducted before the Honourable Mr Justice Connolly over 35 straight days. The addresses concluded on a Thursday. The judge delivered his judgment on the following Tuesday.
I have had the benefit of looking at a physical copy of the trial judgment. It is some 68 typed pages, the product of an old school manual typewriter. The language of the judgment exudes clarity and assuredness. The judgment explains the real issues, resolves the evidence and applies the law in clear and succinct language.
Some matters are worth noting.
First, where settled principle applied, the judgment stated the principle citing the leading Australian or English authority with the page number at which the distilled principle appears. The judgment contained limited extracts or quotes from case law and where such quotes appeared, they tended to be only where the principle was genuinely controversial.
Secondly, the litigation was not what we would today regard as a large documents case. Most of the documents which went into evidence were obtained from third party accountants and comprised handwritten notes. The trial occurred in an age when there were no emails and little use of faxes. A junior barrister in the litigation had been briefed to draw interrogatories directed towards the accountants’ handwritten notes. The answers to the interrogatories assumed some importance in the trial. Depending upon who you ask today, that is, who you ask among the then junior counsel briefed at the trial, the interrogatories were either “adequate”, “possibly well drawn” or “a work of art which proved decisive in the litigation”. What I draw from that particular aspect is that a professional task involving the unique skill set expected of a commercial barrister, in fact entrusted to and undertaken by a junior barrister working on his own, was important work in the conduct of a major piece of commercial litigation.
Thirdly, there were silks at the trial who were among the most eminent and well-respected barristers, not just in Queensland but in Australia. No one I have spoken to recalls there having been any written submissions at the trial. What I have been reminded of is that silks like the late Honourable Bill Pincus QC and the late Honourable DF Jackson AM KC were famous for having the courage to address the court on the basis that “the real issue in the case is this” or “the three important issues are these”. One thing I can safely say is that, having some understanding of the quality and character of the silks in that litigation, none of the submissions in the trial in Gould v Vaggelas would have been vetted by, or run past, instructing solicitors for feedback or contributions, let alone for confirmation or acceptance by the client. The case involved brilliant, fiercely independent barristers practising at a time when it was unethical to send out a business card. They were briefed because they were renowned for their special skills, ethics and independence.
We should look at Gould v Vaggelas today as reflecting the ultimate standards we all should aspire to achieve. An eminent Supreme Court judge and the very best Queensland counsel achieved an outcome where a 35-day trial of a complex commercial dispute produced a judgment within 3 days.
In Queensland a modern version of the Commercial List was established and initially managed by Justices Muir and Chesterman. Some of us will have experienced the benefit of conducting cases on that modern Commercial List. The success of that period of commercial litigation in Queensland speaks for itself. That period of renaissance for commercial litigation in this state will remain fresh in the memories of many here today. One notable feature of that time is that the Queensland commercial bar again happened to be dominated by commercial silks of the highest quality who were genuine leaders of the national profession.
That is an abbreviated overview of some parts of our commercial litigation heritage.
The disruption caused by artificial intelligence is an opportunity
I have spoken about the manner in which Lord Mansfield confronted and embraced the challenges posed by the Industrial Revolution to the Rule of Law in England. Today, in a sense we are confronting our own kind of industrial revelation being the revolution of technology and the emergence of big tech in international business and in the formulation of policy. History tells us that the industrialists who were the proponents of the Industrial Revolution embraced the Rule of Law, they wanted and desired just outcomes within the Rule of Law and facilitated effective change within the Rule of Law by working in consultation with the profession and the courts, led by Lord Mansfield. Today we can’t be quite as confident that the proponents of the modern-day industrial revolution have any particular longing or desire to promote or protect the Rule of Law. Elon Musk once told his biographer that “the only rules are the ones dictated by the laws of physics, everything else is a recommendation.” We live in a world where there is a very real danger that information and artificial intelligence can and may be distorted for profit, power and to influence policy. Big Tech’s massive investment in AI is not necessarily an investment reflective of any desire to perpetuate the Rule of Law. It is not necessarily an investment being undertaken in the public interest or for the public good.
In the midst of GLASNOST and in the lead up to the fall of the Berlin Wall, the German rock band Scorpions (which to that point in time had been loosely compared to Spinal Tap) released an album called “Crazy World”.
The number one song on that album was “Wind of Change”. The song, in musical style and lyrics, was unlike any song Scorpions had previously made. The lyrics predicted the collapse of communism and the birth of a new era for Eastern Europe. The song became an anthem across Europe celebrating the imminent collapse of the Soviet Union. In that time of great uncertainty, the lyrics spoke of “the future being in the air” and the “world closing in”. The final verse was “the wind of change blows straight into the face of time, like a storm wind that will ring the freedom bell”.
Conspiracy theorists contend that Wind of Change was in fact written and composed by the CIA. Hopefully, all information relating to whether the CIA did in fact write Wind of Change will one day be declassified. But I digress. What I readily accept as being the very marginal relevance of Scorpions to my talk today, is perhaps encapsulated by the album cover for the song which depicted a key seeking to unlock the future. Confronted with the very real challenges to commercial litigation posed by unprecedented technological change, as a profession, we can cower and fret or rather mobilise and actively look for solutions and improvements. The message for the bar during these times of disruption and change should be that with upheaval comes opportunity.
It is readily observed in the United Kingdom thatthe new ways of doing business involving the use of blockchain and artificial intelligence provide enormous opportunities for economies and legal systems that are prepared to position themselves at the forefront of the development and support of those new methods and assets.
Embracing the future involves reinforcing the bar’s great strengths
There are philosophical challenges we need to address at the outset which do not require any knowledge or understanding of the technology. They are problematic aspects about how we currently administer commercial litigation. In most commercial litigation, at some point, we confront the prospect of losing trial dates because of amendments to pleadings. Whenever we adjourn trials and vacate trial dates, at some level, we expose our system to ridicule and the potential to be thought of as a failed system. There is no surer way of degrading public confidence in the courts than by vacating trial dates. Our jurisprudence makes it difficult for a court presented with a genuine but late amendment application to refuse the amendment, even if it causes the adjournment of the trial. The common law has been wrestling with the consequential effects of amendments for centuries. Lord Justice Bowen said in 1887 in terms which he expressed “without fear of contradiction” that it was simply not possible for an honest litigant in the Royal Courts to be defeated by any mere technicality, slip or any mistaken step taken in litigation.[30]
Some of us have practised when JL Holdings[31] was the leading case on amendment and adjournment. We are now governed by the principles in Aon Risk:[32]
“But, as is explained in these reasons, to be regarded as a real issue, and for amendment therefore to be necessary, the relevant dispute or controversy must exist at the time of the application. Amendments raising entirely new issues fall to be considered under the general discretion given by r 502(1), read with the objectives of r 21.”
This passage needs to be given attention in practice. We need to be more cognisant of what are the real issues in commercial litigation, or as our 1910 Act said, “the questions which are really at issue between the parties”. The goal must be to identify those issues and questions as soon as possible once a proceeding starts. The careful and timely identification of the real issues provides some important protection against late amendments that might derail a trial and delay final decision making.
Our pleading rules do not always assist the timely identification of the real issues. We operate under rules where, as a matter of course, a defence is expected within 28 days and usually the defence is filled with a litany of non-admissions arising by reason of the 28 day time constraint or because there has not been disclosure. The non-admissions invariably survive to the time of trial. We should not approach commercial litigation as if it is something akin to building and construction litigation. There needs to be more preparedness in appropriate cases to insist upon either material fact style pleadings or simply to dispense with pleadings in favour of the identification of agreed real issues. If you are briefed for a plaintiff in a commercial dispute which is attended by urgency and needs quick resolution, it may be appropriate to have the proceeding start by way of application and listed for review by a Commercial List judge because that course might give the court the best opportunity in an appropriate case to dispense with pleadings and have the parties genuinely attempt to agree the real issues. We need to continually give more thought to flexible procedures. In an appropriate case, can there be just one expert appointed by the court? In any case, how important is disclosure and what kind of disclosure is actually required? At mediation, if settlement fails can important matters pertaining to the efficient conduct of the trial be reduced to an agreement?
One of the leading cases on the effects and significance of delay is Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. At 552 to 553, McHugh J said:
“… the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced … Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them … The final rationale … is that the public interest requires that disputes be settled as quickly as possible.”
Delay has for a long time been recognised as detrimental to just outcomes. The focus of the jurisprudence has been on the effect on the quality of justice and on litigants in their efforts to get justice. That is, delay has been traditionally cast as a problem for litigants. In the future, delay may well become a problem for the profession, not litigants. Sophisticated businesspeople of tomorrow are unlikely to have much tolerance for delay and they are likely to be doing business in an environment where they can achieve sophisticated resolutions of disputes, not necessarily in the courts or through the use of human actors. Sophisticated businesspeople may be prepared to accept commercial outcomes dictated by algorithms rather than human wisdom. Confronted with these potentials, the commercial bar must focus upon its important in providing the best opportunity for the Rule of Law to thrive, that is, the best opportunity for businesspeople to continue to perceive going to court as an effective system for adjudication. What distinguishes the bar from other associations of people, or dare I say from machines, are its ethics, independence and specialist skills. Those distinguishing characteristics must endure and remain notorious to the community the bar serves.
“…the commercial bar must focus upon its importance in providing the best opportunity for the Rule of Law to thrive, that is, the best opportunity for businesspeople to continue to perceive going to court as an effective system for adjudication.”
You will hopefully have got the flavour that the new and emerging industries and businesses in Queensland are unlikely to have traditional ties to Sydney or Melbourne. In some respects, the Sydney and Melbourne commercial bars may always have had something of an advantage over the Brisbane commercial bar in that the head offices of banks, insurance companies and multinational companies have traditionally been seated in the southern capitals. That status quo will change in the sense, for example, crypto exchanges are not necessarily going to be based in Sydney. We already have one of the leading crypto exchanges operating out of Brisbane. Companies promoting emerging technology in agriculture, mining, space and sports tech are setting up business in Southeast Queensland. There is no obvious reason why commercial litigation involving those companies should not be litigation conducted in Queensland. The Bar should be competing for commercial arbitration work connected with Olympic and Paralympic projects. I know the Association has already been doing valuable work in connection with the place of arbitration for those kinds of disputes.
However, to serve the interests of emerging industries, our system needs to be able to provide specialist advocates that understand the new businesses and appreciate the type of remedies the new businesses require. There needs to be a recognition that we have to upskill at least in relation to knowledge. I have deliberately referenced remedies because, again to use the example of crypto currency, we have seen, particularly in the United States through the FDX collapse, how important flexible remedies are for liquidators tracing Crypto currency fraud. In the United Kingdom, task forces have formed headed by commercial judges supported by the Bar and Law Society. The work of the task forces has been to prepare and publish documents intended to promote market confidence in the ability of English law to govern smart contracts and blockchain transactions. It would seem that the law can quite readily deal with issues raised by Smart contracts but useful remedies in respect of crypto fraud and banking scams are another question. It is now generally accepted that crypto assets may be regarded as property. There is a suite of English decisions and a first instance decision of Justice Attiwill in the Supreme Court of Victoria in the matter of Re Blockchain Tech Pty Ltd dealing with crypto as property.[33]That is an important starting point however very difficult questions are continually emerging concerning the governing law over the asset and how to enforce remedies against actors located outside of the jurisdiction. The remedy and the efficacy of the remedy is what the UK taskforce has looked at with a view to sending a message to the international business community, in respect of crypto disputes, that the English courts and bar are open for business and ready to assist and solve your problems. The potential reach of the remedies can be seen in a 2024 decision of the English High Court in Tonstate Group Ltd v Wojakowski [2024] EWHC 975 (Ch) where a Bankers Trust disclosure order was made in London requiring a foreign trustee to provide information and documents in relation to assets held in a foreign trust and foreign bank accounts. The commercial bar should be vitally interested in further continuing education about these types of contemporary issues. The Court is obviously interested and prepared to work with the commercial bar to ensure that our rules and procedures and practice directions are contemporary and reflective of world best practice.
In terms of independence, it takes great courage for an advocate to identify and be confined by the real issues. There is no way to sugar coat that. It may be an unpopular course with the client or your solicitor, but it is a course that facilitates or assists efficient decision making. Today, it is possibly harder for a barrister to be genuinely independent in practice than it might have been say 50 years ago. Barristers now function in a world in which the receipt of briefs, at least in some cases, may be influenced by marketing and ratings, and the ratings to which I refer are not apparently referable to transparent data. Barristers for some time have regularly conferred at solicitors’ offices and are regularly asked to provide draft work to not just their solicitors but to their clients for review. Despite starting out with the very best of intentions to act independently, some barristers may get drawn into situations where their strategic decision making is heavily influenced by what I might call “outside noise”, which can be apt to deflect from the identification of the real issues in a case.
Some barristers, I hasten to say a minority, build a reputation as fearless advocates who are prepared to run “hard points”, but by a hard point they mean a faintly arguable point lacking in substance. It is one thing to identify such a hard point for the purpose of a strike out application, it is another thing entirely to persist with such a hard point after the benefit of all of the interlocutory steps and a trial. We should not lose sight of the fact that any client a barrister represents undertakes to the court to proceed expeditiously. Our procedural rules are designed to facilitate the just and expeditious resolution of the real issues. A barrister by the time of the trial should not conflate an “arguable issue that might survive a strike out application” as being necessarily a real issue for final decision by the court after a trial. The point I wish to emphasise is that it very much assists a trial judge in providing a timely decision if a barrister is prepared to commit to what the barrister perceives are the real issues that have to be finally decided.
“…it very much assists a trial judge in providing a timely decision if a barrister is prepared to commit to what the barrister perceives are the real issues that have to be finally decided.”
Bruce Oslington SC was a barrister I had the privilege of working with when I was a junior. Bruce was very much a barrister who in my experience only argued the real issues. Once after we finished the closing submissions of a trial, we were sitting at the bar table as the judge walked out leaving behind the lever arch folders on the bench. Bruce whispered to me: “You see, that’s why I will never be a judge. They always look kind of defeated at the end when they walk out and have to go away and write the judgment. Could you think of anything worse?” Sometimes, I find myself thinking about Bruce’s comment.
The worst kind of advocacy by a barrister occurs where the barrister hands up 40 or 50 pages and orally argues one point of substance and then says in a very smooth, measured way “otherwise we rely upon our written submissions”. When you then come to write the judgment, you deal with the real issue, the point of substance that was actually orally argued, and you start to see the light at the end of the tunnel in terms of getting the judgment delivered. At this point it might be a Thursday night in your judgment writing week. But then comes the sudden, grim realisation that there are still 4 or 5 other “issues”, none of any ultimate substance, that were floated in the writing, but not argued orally, and which you still have to decide in order to get the judgment out. At that point of realisation, you should all know that the judge, sitting in the quiet of chambers with a partially completed draft judgment on the desk, feels like Don Michael Corleone in The Godfather III; “just when I thought I was out, they pull me back in”.
As judges we receive education about how to write judgments. We are taught and encouraged to write judgments by reference to issues. As trial judges it is reinforced to us that we are not writing for prosperity; we are trial judges who are meant to be applying settled law. Much of the commercial common law is necessarily settled law; the whole point of the developed commercial law being that it can be applied with certainty. The same is true of much of our procedural law. It is important for commercial barristers to realise that the trial judge will write an issues based judgment. The submissions that assist the writing of that kind of judgment are concise, issues based submissions. What would most benefit me as a trial judge are submissions which: identify the issue, identify the findings of fact which are sought in respect of the issue, for each finding of fact, identify the parts of the evidence relied upon in support of the finding and identify the settled principles of law to be applied to the facts as found. As most principles are settled, state the principle and identify the leading authority. Try not to provide 5 authorities when you can provide one leading authority. Try not to cite large passages from cases, if it is unnecessary. That form of concise, issues-based submission, fundamentally involves writing for the benefit of the court. Only the very best barristers write trial submissions in that style. In my view, writing in that style should become the norm, not the exception. Barristers should become renowned for having the special skill of being able to write for the benefit of the court.
“What would most benefit me as a trial judge are submissions which: identify the issue, identify the findings of fact which are sought in respect of the issue, for each finding of fact, identify the parts of the evidence relied upon in support of the finding and identify the settled principles of law to be applied to the facts as found.”
I had the opportunity to sit alongside a Commercial Court judge in London in the Rolls Building in an application which spanned three days. The proceeding concerned a dispute arising out of the impact of international trade sanctions. An international shipping container company had been affected by Mareva style orders and the hearing was about whether the orders should be discharged. The barristers including the silks handed up relatively brief written submissions and there were no books of authorities. Rather each barrister had a current version of the English white book, as did the Judge, and they would simply cite legal principles by reference to a case or a page number and paragraph of the white book. It was a very efficient hearing, and the judge was able to deliver an ex tempore judgment.
Finally, as to ethics, there are two very brief points which I wish to make.
The first is that the Bar must lead to ensure that artificial intelligence to the extent it is used in litigation, is used ethically and so as to promote, not undermine, the Rule of Law. There should be no compromise on that. Large firms and consulting companies may have their own plans for the use of AI programs. The bar must set its own rules and guidelines for its use of AI to ensure that any use by a barrister is consistent with the special role and duties of a barrister. The relationship between the court and the bar is a unique and special relationship. It is a relationship which must be protected. Judges rightly place enormous trust and confidence in the bar. Occupying that special position, the bar must distinguish itself from any other professionals in relation to the use of AI. The court and the community must have confidence that the bar will only use AI for the purpose of furthering the objects of r 5 and the enhancement of the Rule of Law. There will be a need for ethical checks and balances in relation to the use of artificial intelligence. The bar should take the leading role in setting the parameters of ethical use of AI in commercial litigation.
Secondly, one of the imperatives to ensure that court proceedings in commercial matters remain attractive to clients is that they be conducted by reference to flexible, innovative procedures devoid of technicality. The administration of justice is plainly advanced by barristers being able to speak frankly and candidly with each other about how to best conduct a commercial case consistent with rule 5 and the practice directions. We need barristers to be renowned for their ethics, at the very least, so that there can be frank discussions between barristers out of court in relation to the efficient, innovative conduct of commercial cases. Our profession is adversarial and competitive. As barristers, you don’t have to like each other but you have to trust and respect each other. You have got to be able to pick up the phone to your opponent. That inherent abiding trust in each other must always be something that sets the Bar apart and it is going to become even more important in ensuring that court process is flexible and dynamic to meet the demands and expectations of our community.
No one can predict the future for robots and advocacy. What we do know is that in 2021 a robot addressed the Oxford Union Debating Society and engaged in a lengthy question and answer discussion. When I was researching this paper, I stumbled online upon a fascinating conversation between two robots. At least I think they were robots. I have also noticed that some of my more recent conversations with Siri in the car have become more engaging and animated. One day, the bots may well set up in competition with or as part of the commercial bar. A literal interpretation of some of the longstanding nicknames for some of the senior leaders of the bar, might suggest that the bots have already infiltrated the ranks. We can only imagine and speculate about that future world. Regrettably, the ubiquitous barrister ranking systems and lists will no doubt continue to exist in the future. Barristers may well have to be ranked against robots. However, whatever happens, I am confidently backing the human barristers to be renowned as more ethical, more fearless, more skilled in leading evidence, better cross examiners, more skilful in address and more emotionally intelligent and intuitive. Those enduring characteristics of the great barristers we have known and know, will help safeguard the Rule of Law and the future of commercial litigation in our courts.
“I am confidently backing the human barristers to be renowned as more ethical, more fearless, more skilled in leading evidence, better cross examiners, more skilful in address and more emotionally intelligent and intuitive. Those enduring characteristics of the great barristers we have known and know, will help safeguard the Rule of Law and the future of commercial litigation in our courts. “
Thanks for your time.
[1] Judge of the Supreme Court of Queensland: Trial Division. This is a written version of a presentation delivered at the Annual Conference of the Bar Association of Queensland in Brisbane on 1 March 2025.
[2] Lord Hodge, ‘The Rule of Law, the Courts and the British Economy’ (Speech, Guildhall Lecture, 4 October 2022) 14.
[3] Tom Bingham, The Rule of Law (Penguin Books, 2011).
[4] Lord Burnett, ‘The Hidden Value of the Rule of Law and English Law’ (Speech, Blackstone Lecture, 11 February 2022) 2.
[5] Tom Bingham, The Rule of Law (Penguin Books, 2011) 8.
[6] Lord Burnett, ‘The Hidden Value of the Rule of Law and English Law’ (Speech, Blackstone Lecture, 11 February 2022) 3.
[9] Lord Goff, ‘Commercial Contracts and the Commercial Court’ (1984) Lloyd’s Maritime and Commercial Law Quarterly 382.
[10] Lord Goff, ‘Commercial Contracts and the Commercial Court’ (1984) Lloyd’s Maritime and Commercial Law Quarterly 382, 391, cited with approval by Lord Steyn in Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715 at 749 [57].
[11] Judiciary UK, ‘About The Rolls Building’, Courts and Tribunals Judiciary (Web Page, n.d.) <https://www.judiciary.uk/about-the-rolls-building/>.
[12] Judiciary UK, ‘Financial List Guide’, Courts and Tribunals Judiciary (Web Page, n.d.) <https://www.judiciary.uk/courts-and-tribunals/business-and-property-courts/financial-list-guide/?>.
[13] Lord Burnett, ‘The Hidden Value of the Rule of Law and English Law’ (Speech, Blackstone Lecture, 11 February 2022) 3–4.
[14] TheCityUK, Legal excellence, Internationally Renowned UK Legal Services 2021 (Report, December 2021) 7.
[15] TheCityUK, Legal excellence, Internationally Renowned UK Legal Services 2021 (Report, December 2021) 7.
[17] Oxera, Economic Value of English Law (Report, October 2021) 35.
[18] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 17.
[19] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 17.
[20] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 12.
[21] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 12.
[22] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 25.
[23] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 25.
[24] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 25.
[25] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 25.
[26] Queensland State Development, Infrastructure and Planning, Queensland new-industry opportunities (Web Page, 13 December 2024) <https://www.statedevelopment.qld.gov.au/industry/queensland-new-industry-opportunities>.
[27] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 27.
