Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

in reply—I would like to thank members for their contributions to the debate on the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009. They have been excellent contributions, some made on the basis of very valuable experience, as the previous speaker was able to demonstrate. The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 forms a key part of the Rudd government’s agenda to improve access to justice.

The amendments in the bill will streamline procedures in the Federal Court and assist in reducing the cost and complexity of litigation. The bill is bringing about a cultural change in the way litigation is approached from well before the parties go through the doors of the courts and throughout the litigation. Whilst access to justice is about more than court proceedings, this cultural change is an important step to improve access to justice for all court users—that is, obviously, the litigants, lawyers and members of the court, including court staff.

The bill contains a number of important reforms to enable the court to more effectively manage large and protracted litigation. These amendments have been developed in close consultation with the court and I would like to acknowledge the hard work that the court has done in the development of these reforms. They seek to address the increasing demands that are placed on finite resources. I note that the Federal Court submission to the Senate Standing Committee on Legal and Constitutional Affairs states:

These amendments will help achieve the Court’s goal of an effective and accessible system of justice where people are able to resolve their disputes quickly, efficiently and fairly.

Other amendments will enhance public confidence in the administration of justice. They clarify the role of the heads of court and broaden their responsibilities to ensure the effective discharge of the business of the court.

In terms of case management, as I said when I introduced the bill, this bill will ensure the parties and their lawyers are encouraged to work towards narrowing the issues in dispute and of course where possible resolving them in the simplest possible manner. The new overarching purpose of civil procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

The High Court’s recent decision in Aon Risk Services Australia Limited v Australian National University supports the active case management powers introduced by this bill. The High Court stated:

In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. … It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

When I say that the decision supports the active case management powers of course I am not saying that the court considered these specific provisions. But I think that quote which I have just read out supports in principle the thrust and purpose of the legislation that we are proposing. In a similar vein, Chief Justice French made the very telling point that undue delay can undermine confidence in the rule of law. He said:

… the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.

It has been suggested by some that active case management in this bill may require additional judicial resources. I disagree with this. Obviously it is important to provide adequate resources to the courts but actively managing cases, we believe, will lead to efficiencies and better use of existing judicial resources. In terms of appeals, the bill also provides for a more consistent and simplified approach to appeals. These amendments will not only enable the courts to have great flexibility in dealing with appeal procedures but also assist litigants by removing confusion arising from current case law. Importantly, these amendments will provide for the efficient use of resources by eliminating unnecessary steps in litigation. Each step of course has its own cost implications for clients. This will ensure that the court’s time is not spent unnecessarily hearing appeals from minor procedural decisions.

On this point, I want to respond to a criticism of the bill that has been made. It has been said that by removing the right to appeal interlocutory decisions relating to security for costs there is not an adequate protection for litigants’ rights. To address that, to ensure that there is adequate protection, a safeguard is being introduced to ensure that litigants will not be disadvantaged by the proposal to remove appeal rights in relation to a limited number of interlocutory decisions, including a decision relating to new section 24(1AA). This safeguard will provide that an interlocutory decision, including a decision relating to that section, may be listed as one of the grounds for appealing a final decision, even if there is no appeal pathway from that particular interlocutory decision. This in turn will ensure that there will still be an appeal pathway open when the appeal pathway for a decision under section 24(1AA) is removed. Similar legislative provisions which limit appeal rights against interlocutory decisions, including decisions in relation to security for costs, already exist. For example, section 94(2F) in the Family Law Act 1975 provides that power.

In terms of judicial responsibilities, Australia has a federal judiciary of the highest calibre. The amendments I have introduced concerning the powers of the chiefs of our federal courts will further enhance public confidence in the justice system. We are blessed with people of very high calibre serving in those offices, and obviously in the future that will remain the case. The amendments give the head of each federal court the responsibility to ensure the effective discharge of the business of the court. The bill ensures that judicial resources of courts can be adequately managed and allocated according to need by assigning judges to particular locations.

I would now like to address some specific comments raised by the opposition, including by the shadow minister. The shadow minister referred to a submission by the Law Council of Australia to the Senate Standing Committee on Legal and Constitutional Affairs, which is currently inquiring into the bill. The first criticism is that the duty imposed on lawyers by the bill goes too far. The government believes a cultural change in the way litigation is conducted can be achieved only if the court, the parties and their legal representatives are all on the same page. Obviously in this parliament we cannot dictate culture but we can set the legislative framework that influences the development of culture. We believe there would be little merit in imposing a duty on parties, like the one introduced by new section 37N, if their lawyers were not also obliged to comply with the duty in some way. We would go so far as to say that in some instances, unfortunately, a client may need some additional impetus on the part of their lawyers to aim at resolving disputes when it may not necessarily be in the lawyers’ financial interests for that matter to be so resolved. I should indicate and stress that that propensity on the part of some lawyers is one that is diminishing. I think that by and large the culture in the legal profession is to do everything they reasonably can, firstly, to keep their clients out of court and, secondly, if involved in litigation, to resolve those matters as quickly, effectively and cost-efficiently as possible. Nonetheless, I think that reality suggests that there are some who could reform their ways, and in some senses this legislation will give some solace to their clients that the expectation will be on all participants in the process.

The proposed provisions do not go as far as the New South Wales legislation in respect of a similar issue. Section 56(4) of the New South Wales Civil Procedure Act 2005 provides that:

A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty ...

The provisions in the bill help avoid a situation where the lawyer is torn in two different directions by their duty to follow their client’s instructions and the duty to comply with the overarching purpose. Therefore the bill—and obviously I am talking about the provisions before this parliament—strikes, we believe, an appropriate balance in relieving a lawyer from those two different obligations.

The Law Council also argues that new section 37N(1) abrogates settlement privilege. New section 37N(1) requires the parties to conduct all aspects of the proceedings, including settlement negotiations, consistently with the overarching purpose. Normally, settlement negotiations are privileged. They will remain so following the introduction of this bill. Concerns have also been raised that, when the court is deciding whether to make a cost order under new section 37N(4), the court may have to inquire into the way the settlement negotiations were conducted, and the settlement privilege will be abrogated—or so the argument has been presented. We believe that this will be unnecessary. The court only needs to be satisfied that a reasonable attempt has been made to settle the dispute in accordance with the overarching purpose, which would not require full details of the settlement negotiations to be given as evidence.

Finally, the Law Council argues that the proposed power of the court to limit witnesses goes too far. New section 37P(3)(c) allows the court to make a direction limiting ‘the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence’. It is said that this provision overrides the parties’ prerogative to make decisions of this type. This concern really comes back to the key purpose of this legislation and the balance of private and public interests which must be struck in the conduct of litigation. Litigation is not a plaything of the parties or something that can be exploited to their advantage by the party with the greatest resources. Significant judicial and public resources are made available to resolve matters, and it is important that these resources are used to best effect. Unnecessary witnesses and submissions simply add to the time taken to resolve matters and to the costs to the court, the parties and ultimately the taxpayer. These case management reforms are about achieving a cultural change in the way litigation is conducted and ensuring that the court has the active case management powers required so that the overarching purpose can be applied to all proceedings. It will be open to the parties to make submissions about the number of witnesses they require to make their case and the number of documents they wish to tender. The new provision does not prescribe what the limits should be. This will be determined on a case-by-case basis by the presiding judge, who may indicate to the parties whether they have been persuaded in respect of a particular matter and require no further persuasion in respect of that particular item.

This bill highlights the Commonwealth’s commitment to improved civil justice outcomes for all Australians. Making the best use of our court resources is an important factor in achieving better outcomes. This bill will ensure that matters before the Federal Court are to be resolved by the simplest means possible. This is an important step in strengthening the civil justice system and creating a legal framework that provides fair and effective access to justice for all. In short, while it is the case that legal practitioners both serve their client and are officers to the court, the culture that we are promoting is that all participants in the justice system will be servants of the justice system as a whole. The amendments support many practices in place in the court and reflect the commitment of Australia’s federal judiciary to excellence.

Question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.

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