Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Hansard source

I am pleased to speak on the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009. This bill is principally directed to the case management processes in the Federal Court of Australia, although there are some relatively minor amendments also directed to the Family Court and the Federal Magistrates Court. Case management is the practice whereby judges control the progress of a case through the preliminary stages prior to trial so as to ensure that the parties keep to an appropriate timetable, that the issues in the dispute are narrowed and that unnecessary costs and delays are avoided.

The bill introduces an ‘overarching purpose’ to case management, which is ‘to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.’ This is further defined, inter alia, to require ‘the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.’ Parties to a dispute must conduct the litigation in a way consistent with the overarching purpose and legal practitioners will be obliged to assist their clients to comply with that duty. Costs orders will be used to compel compliance and they will also be available against lawyers personally. Other sanctions may include orders for the dismissal of proceedings or limitation of the case a party may wish to present. In addition, there are amendments to curtail appeal rights in respect of interlocutory orders to refer any matter for alternative dispute resolution and to charge the heads of each federal court with responsibility for the effective discharge of the business of the court.

While the intention of the bill appears fairly innocuous, it is important that the bill be closely scrutinised for potential problems. In particular, it needs to be recognised that there can be a tension between the concepts of efficient case management and the interests of justice. This was recognised by the High Court in State of Queensland v JL Holdings Pty Ltd, 1997, where it was held that case management principles could not supplant the attainment of justice. The overarching principle proposed by the bill seems intended expressly to equate efficiency with justice.

As mentioned in the Bills Digest, the bill proposes that certain alternative dispute resolution processes be used in federal civil proceedings as a means by which disputes may be resolved more cost effectively and efficiently. Alternative dispute resolution is a general term referring to processes other than litigation used to assist people to resolve various disputes. It is important to note that there are different types of such processes, and particular types of alternative dispute resolution processes suit particular types of disputes. This bill has been referred to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 17 September. As at 7 August, only one substantive submission had been posted on the website of the legislation committee’s inquiry into the bill itself, and that was from the Law Council of Australia. The Law Council generally welcomes the reforms which are the subject of the bill, and states:

The concept of ‘mega-litigation’ has in recent times drawn attention to the impact that private disputes can have on the courts and the strain that such litigation can impose on the scarce public resources required to fund the court system.

The costs of lengthy and inefficient litigation are carried not only by the parties themselves but also by taxpayers who fund the operation of the justice system. Judicial salaries, court officer and registry staff salaries and court premises costs are incurred unnecessarily by litigation that is not efficient or cost-effective. If inefficient litigation monopolises court resources, then those that cannot afford protracted litigation are prevented from accessing the justice system.

However, the Law Council points out that there are certain provisions in the bill that should be considered further. They include: in respect of proposed paragraph 37N(2)(b), requiring a legal practitioner to assist clients to comply with the overarching purpose of the litigation extends the obligation on legal practitioners beyond acceptable limits and potentially creates difficulties which could effectively frustrate the whole aim of the overarching purpose; in respect of proposed clause 37N(4), application of this provision could effectively enable the court to consider matters ordinarily the subject of settlement privilege, thereby impliedly abrogating that privilege; in respect of proposed paragraph 37P(3)(c), this provision exceeds the acceptable level of control by the court by fundamentally affecting the way a party through its legal representatives makes decisions about the best way to present its case, which the Law Council believes is the prerogative of parties in adversarial proceedings; in respect of proposed clause 24(1AAA), decisions about the security of costs are not ‘minor interlocutory decisions’ and should be subject to appeal, as such decisions could have profound consequences for parties to proceedings; and, in respect of proposed paragraph 21B(1A)(b) of the Family Law Act and related proposed provisions in the Federal Court and Federal Magistrates Court acts, enabling the chief judge to restrict a judge to non-sitting duties potentially interferes with the exercise of those judicial powers and may compromise judicial independence if that power is misused.

While several other submissions have been received in relation to the inquiries undertaken by the Legal and Constitutional Affairs References Committee, these generally relate more narrowly to the terms of reference of those inquiries and not to the provisions of the bill itself. In conclusion, the coalition foreshadows amendments to the bill pending recommendations made by the Senate Legal and Constitutional Affairs References Committee.

See this speech in context