Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

When I was speaking previously on the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 I was talking about the overarching obligation found in section 37M, which is the centrepiece of the case management reforms. The legislation here talks about a statutory basis for case management. That is important because, in the past, judges and registrars have been in the position where they have had rules and regulations but those things do not really have resonance. Matters are supposed to be dealt with under statute. From time to time, in my many years of experience as a lawyer, those rules and regulations have borne little resemblance to what was envisaged, I am sure, by the lawmakers when the legislation was passed in the first place. I previously pointed out the example of the Family Court and the Federal Magistrates Court, where there are two separate rules which are supposed to be exercised under the one particular piece of legislation—namely, the Family Law Act—and exercised in the same jurisdiction. It is simply a nonsense.

So a statutory basis for case management is very important. Making sure it is streamlined, effective and efficient is extremely important. What we need are just determinations of these sorts of things—an efficient disposal of the court’s caseload. Nothing infuriates litigants more than turning up to court, having solicitors and barristers there, having all their witnesses there, having prepared affidavits and being ready to go and then, all of a sudden, the other side acts in a way which is contrary to the spirit of the negotiation and settlement of the litigation, resulting in the case going away. Another example would be where, in similar circumstances, a judge is not properly allocated to the hearing. In such circumstances what we really need is for there to be a costs imperative and for courts to actually carry out those costs orders. I think it is really important that, where that type of conduct occurs, a court order can be made for cost orders not only against litigants but also against lawyers.

I have been involved in many cases, many mediations, many arbitrations and many alternative dispute resolution procedures in which the other side was simply not fair dinkum about settling the case. Parties really prepare to try and resolve cases, but what happens is that the other side frustrates it and the matter goes away. This incurs an enormous amount of cost. I have been in circumstances where it has cost litigants thousands and thousands of dollars to prepare; the other side does not have the bona fides and goodwill to settle the matter; the matter goes away; it costs the client a lot of money; and there is no costs order awarded to that person against the other party or their lawyers who, many times, are sloppy and inefficient in their preparation for the mediation, the arbitration or the conciliation conference. What we are talking about here is statutory authority for a court to be able to consider imposing costs for any failure to comply with the overarching duty. That is a really good thing for the efficient disposal of case management and litigation in our courts.

We need to settle disputes efficiently, quickly and with the least amount of costs. One of the important reforms here is the possibility of a costs order when a party unreasonably rejects an offer of settlement of part or all of the proceedings. That is an important punitive measure which can be imposed upon a party who frustrates another party in litigation.

There are issues here which can be resolved by case management. For example, matters can be dealt with on the papers. There are times when a great cast of witnesses can be seen sitting outside a court. You do not need many witnesses on many occasions, particularly in small litigation. If a judge can direct that one or two witnesses are needed or that the matter can be dealt with in chambers or on the papers, or by way of affidavit, that is a good way to dispose efficiently and expeditiously of court proceedings. In this legislation we are talking about a culture change in the way we deal with legislation. So this is a very important law reform.

Many cases should be dealt with by a single judge exercising full court jurisdiction, but unfortunately a lot of litigation prescribes that matters should be dealt with by a full court and not a single judge exercising that jurisdiction. There is also some confusion from time to time in case management as to whether in fact a judge or a full court has authority to say, ‘This case should be dealt with in this way.’ With respect to interim hearings or interlocutory matters there can be some degree of uncertainty as to whether an appeal from those matters is dealt with by way of a single judge exercising full court jurisdiction or, indeed, whether the full court itself is required. There can be confusion in cases of consent orders which are handed up before the full court. I have been in cases before where you do a full court appeal and then, all of a sudden, you require the presence of the full court to hand up consent orders when you have come to an agreement. That is a terrible cost to the taxpayer and also to litigants. The matter should be able to be resolved efficiently in chambers. The reforms here allow for those sorts of things. We do not want a situation where litigants can choose neither judge nor in fact the method by which litigation is prosecuted or carried out. We want to be in a position where justice is seen to be done. The reforms here go a long way to limiting that.

We also need directions about the length of submissions. I have seen submissions of 100 pages or more. Judges ought to have the statutory power to say, ‘I want a 10-page submission on the matters of law and of fact which are relevant to the case.’ That is what should happen. Also, we do not need, for example, a barrister or solicitor to stand for a day making submissions. Imagine the cost to the taxpayer of having a lengthy litigation, having a judge sit there and listen to a lawyer speak for days on end making submissions. I have seen that happen. I think it is important that we have a statutory basis for the judge to say, ‘I want written submissions.’ Many times judges will do this but there is not really a statutory basis for this reform, so this is a very important change.

Often matters should be dealt with in chambers. This is common in civil litigation—for example, in the District Court and the Supreme Court in Queensland—but the same culture is not dealt with in federal courts. It is very rare that a federal magistrate or a Family Court judge will do this sort of thing. Even in circumstances where, under the legislation and the rules of, say, the Family Court, a judge can interview a child in chambers, that is not carried out, often because a social worker prepares a report dealing with the family and dealing with the child and the report goes to the judge. Even in circumstances where there are rules and regulations to permit these things to be dealt with in chambers, that is not actually done. So anything that gives judges a statutory obligation or discretion to do this is a good thing to reduce the cost of litigation.

There are also changes that will enable the Federal Court and the Family Court to manage their resources, not just in improved case management but also to clarify who is in charge. We have a situation where we have courts with the same jurisdiction and the same legislation, but they do not deal with the same registry. The same access point and administration should be there. We have the power to give authority to the chief justices, for example, in the Magistrates Court, the Federal Court or the Family Court to actually run the show. We have had judge administrators who run the operation of the court, and it is funny because it changes from time to time. We should be a position where the Chief Justice, whoever he or she is, actually runs the operation of the court. I think that would be a good thing in all circumstances.

What we need are better services, better administration, better case management, specific powers, specific responsibility given to our judges, a statutory basis for case management, and a statutory basis for the administration of our courts system clarifying the powers of chief justices of the Family Court, or the Magistrates Court or the Federal Court. We need effective discharge of the operation of the business of our court system, which will be good for taxpayers across the country and good for taxpayers in my electorate of Blair. It is also good for those poor people who are subject to litigation and who have to go through the process and engage themselves in emotional and costly disputes on issues that they never wished to have in court in the first place. I commend the bill to the House.

See this speech in context