1. The banks reached a private agreement to refinance loans for Bell on the condition that they would be paid before any other creditors in the event of a liquidation, even though they potentially knew or should have known that Bell was close to collapse.
2. From 1993 to 1996, West Australian motorists were required to pay a $50 per annum levy on third-party insurance.
3. Both the banks and the liquidators have had relatively easy access to the system. The banks are corporations, with lawyers on staff. It is easy for them to prepare internally, and they likely have existing relationships with experienced barristers. If one member of the team cannot physically travel to the court location, it is likely than another team member can. All of these things apply to the liquidators, also. Additionally, the banks have a lot of money for legal funding, and likely have insurance for lawsuits. The liquidators are the party that has lost money in the first place, but they were able to access taxpayer funding.
4. By themselves, each individual would have had a very unequal opportunity for justice. Individual investors are unlikely to have lawyers experienced in the area already on staff with them, and they are unlikely to have existing relationships with barristers. Individual investors may find it harder to travel, as they might have family or work commitments, and they do not have ‘team members’ who can take it in turns. Individuals also cannot access taxpayer levies, and do not have the millions of dollars in assets held by the banks.
5. The resources of the courts were stretched to their limits. Only one judge sat on the case at any one time, and all the work for the case fell to them. In the speech we discover that a single registrar could only assist part-time, and that Owen J had only two associates – compared with 18 legal representatives from the parties, plus their teams behind the scenes.
6. It was finally settled through non-judicial negotiation – possibly mediation.
7. By the time the initial Supreme Court judgment was handed down in 2008, costs were already in excess of $300 million – the state insurance commission even had to levy motorists to afford the lawsuit. By the time the final agreement was made, investors had been waiting 25 years to reclaim some of their money. Inflation since the losses were incurred may also have decreased the real value of the final amount of damages.
8. One concern is the monopolisation of the Supreme Court’s resources. Hundreds of sitting days of court time were used, and the case occupied almost all of one judge’s time for over a decade. This meant that other cases could not be heard: the speech notes that it had a “harmful effect” on the statistics relating to the number of cases heard. A public policy question is whether it was fair to allocate this amount of time to one dispute.
A second public policy question is that of government resources. The plaintiff was funded by a government agency – the state insurance commission – and there were hundreds of million dollars in costs. This is money that could have gone to a range of community projects.