Mark Bishop (WA, Australian Labor Party) Share this | Hansard source

I am pleased to be able to support the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 before the chair today. It represents much needed reform in an area of traditional resistance to change. I am reminded of the wonderful story Bleak House by Charles Dickens. The story concerns a family dispute in chancery over a fabulously wealthy estate. The fate and fortune of so many characters is dependent upon a settlement which seems to drag on year in, year out—in fact, interminably. The only hearings in chancery were to consider applications for costs from a horde of parasitic lawyers; it was never, ever about the merits of the particular case. Eventually, as always happens, the case was brought to a close simply because the entire estate had been consumed by costs. Those who depended so much on an outcome received nothing; the lawyers, the lot. That is simply a bit of romantic background but with, of course, serious overtones. It reminds us of the real evils of a legal system which is not too many years behind us.

The bill before us today seeks to introduce a number of reforms. The first brace of these is aimed at introducing some discipline into the system, a system which for too long has simply responded to demand without proper consideration of need and good sense. The second is about improving the efficiency of the Federal Court. It is a foundation stone of our constitutional democracy that we have a system of law and a judicial system capable of dispensing justice fairly and efficiently. That has been the ambition anyway. Of course, it has not always been achieved. Too often, the system has been slow and litigious, with too much time spent on process and not enough on adjudication on the merits of the particular matter in dispute. The courts themselves are responsible for some of that, but governments more so. For too long we have been cowed by fine notions of due process. The legal profession too has much to account for due to its behaviour and self-interest.

As we all know, so much legal activity is locked up in process. It is the old standby for lawyers, who know full well that the other side can be exhausted before merits even get questioned or considered. For too long it has been a ploy as part of the battle. It is the very worst of legal behaviour, which in fact denies justice and makes a mockery of the law and proper legal process. One recent case of notoriety reminding us of this continuing failure was The Bell Group Ltd v Westpac Banking Corporation in 2007. Here, two well-fed commercial giants slugged it out in what has become known as the C7 case. Justice Sackville made particular comment on the excessive costs, which I understand to have been unbelievably in the order of $200 million. The costs were totally disproportionate to the issue at stake. Again in 2007, we saw the case of Seven Network Ltd v News Ltd. Once again, two media giants argued themselves to a standstill for no real purpose except commercial pride. Both cases were obviously a complete waste of public resources.

It seems that once the legal profession joins battle there is no backing down. It is interesting to note that in the examination of this bill in the Senate Legal and Constitutional Affairs Legislation Committee the task of the legal profession was a matter of some considerable focus. For example, in the proposal to make lawyers responsible for the management of their case, it defeats the demands of the client, as the client has the right to continue his or her litigation at all cost. ‘At all cost’ is the appropriate phrase. Those opposite in their addendum to the committee report support that proposition, as does the Law Council of Australia. I am afraid this government is drawing a line, and it is appropriate that a line be drawn. It is simply not feasible any longer that public funding continue to flow to public functions and institutions simply because of raw demand. Take our health system, for example: we have long realised that there are better and more efficient ways of delivering health care than through large, expensive hospitals; and so it is with the court system. People need health care and they need a form of dispute resolution, but they do not always need hospitals or courts. That is not to say that access is being denied but simply that no system is or can be open-ended. It is indeed a democratic right to have a fair and equitable system of justice available to all, but it has never been unlimited and it never can be unlimited.

The cases I referred to can only be considered abuse of the democratic system of public justice. That is not to say that justice is being denied unnecessarily—quite the contrary. In fact, it could be said that these days it is more available than it has ever been, particularly through the tribunal system and through the growing use of dispute mediation. Access to some form of justice is now more available than it ever was in the past. New courts have also been provided, and the courts are well aware that demand has to be limited somehow. Thus, reforms have been made in the last decade or so, but clearly much more needs to be done.

Despite the complaints, justice is more accessible these days. But, equally, we must ensure that demand is not open-ended as this allows petty litigious behaviour to keep driving the supply side without limit. Lawyers have a responsibility here. This bill now provides that there will be penalties for them where they fail to control or properly advise litigious clients. Proposed section 43 makes specific provision for lawyers to bear costs personally. One hopes that that might make some of them think twice. The proposed section also gives the Federal Court other discretionary powers with the same end. The court may make awards for costs at any stage in a proceeding, make different awards in relation to different parts of a proceeding and make orders specifying proportions. Just as important, however, the court will be given new powers to deal with minor matters. There is some hope that this will sort out the litigious, for whom court action for too long has been a tool of the trade.

Through this bill, the court is being given new powers, including consideration without oral hearing. With or without the consent of the parties, the court will be able to dismiss frivolous and vexatious cases, those where there appears to be solid precedent rendering a case unnecessary and those where the case is adequately expressed on the written submissions. These measures are very practical indeed—so much so that one can only wonder why it has taken so long to arrive at this point. Perhaps it just goes to show how resistant the legal profession is to change. The overarching principles that drive this reform bill also make it clear that behaviour must change. Obviously, law such as this cannot be prescriptive. Hence we have in this bill a requirement that legal behaviour must be consistent with the overarching purposes of the bill—that is, a set of principles which can be applied with the court’s discretion. For example, the court’s resources must be used efficiently, cases must be determined in a timely manner and costs must be in proportion to the complexity of the matter before the court.

In applying these principles, the court, in exercising its discretions on costs, may take certain behaviours into account—for example, unreasonable refusal to participate in mediation and conciliation; failing to act in good faith in achieving resolution; unreasonably rejecting offers of settlement; and otherwise being vexatious and frivolous. By this means the court may dismiss cases outright, strike out claims, disallow evidence and award costs accordingly. In this context, I must also make mention of the new emphasis placed on mediation and conciliation. It is regrettable that the use of these means of reaching settlement in disputes is not used as actively as it should be. The National Alternative Dispute Resolution Advisory Council, whose advice was sought by the Attorney-General, responded with a recommendation that alternate dispute resolution be mandated in law. That is exactly what the Attorney has done in this bill. It is a very salutary innovation. Reference to the council’s work is recommended because it is clear that it is not as simple as it might appear. For example, it is easier to apply in civil circumstances than it is where there is a public defendant. Discretion might be limited by law, not just government policy. Nevertheless, it is important wherever possible that government agencies also adopt the principles of ADR to the maximum extent possible. Indeed the history of Defence Legal in the last five to eight years, in its way of litigating and exhausting opponents through extensive use of the courts, is a reminder to us that it would be quite appropriate for a bill sometime in the future to mandate these principles for large government departments or agencies.

Finally, let me turn briefly to the second brace of changes proposed in the bill. These relate principally to the jurisdiction of the Federal Court and the management of appeals. Put simply, these changes streamline the way appeals are managed. From judgments of single judges, and the relationship between those appeals and the engagement up to and involving the full court, these changes also alter the means by which some matters might proceed on to the High Court, freed of some of the current wasteful process and delay experienced. These changes also include the streamlining of the way interlocutory matters are considered. These seem to me to be sensible procedural changes which should simplify the way the court works, to the greater benefit of both the court and those who use it on a regular basis.

I commend this bill, and I also commend the consideration given to it by the Senate Legal and Constitutional Affairs Legislation Committee. During that process it is clear that many interested parties made valuable contributions and in large part supported the provisions before us today. Clearly, when you look at the submissions, there were some exceptions. However, in my view, those criticisms do not change the major impact that the bill should have and seeks to have. Quite clearly the consultative process has been quite thorough, and it is pleasing to see the industry, and many people who made submissions, respond so effectively. In that light, I support the bill.