George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 is principally directed to the case management processes of the Federal Court of Australia, with 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 so that the issues in the dispute are narrowed and that unnecessary costs and delays are avoided.

The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 introduces an overarching purpose test to case management, which is:

… to facilitate the just resolution of disputes:

(a)

according to law; and

(b)

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 in certain circumstances. 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.

At the time the bill was first introduced, there was a particular concern that it did not sufficiently recognise the tension that can exist between the concepts of efficient case management and the interests of justice. This issue was highlighted by the High Court in its decision in the State of Queensland v JL Holdings Pty Ltd in 1997. However, the court revisited the issue in Aon Risk Services Australia Ltd v Australian National University on 5 August 2009. That decision recognises that the function of case management is the delivery of justice and provides guidance to lower courts to prevent their processes being distorted and thus frustrating the proper functions of the courts. This bill sits happily with that clarification.

The last time this bill was before the Senate, it was amended in a small number of respects. An amendment was proposed by my colleague Senator Abetz and by Senator Bob Brown to the effect that the Tasmanian District Registry of the Federal Court would be required to include a full-time registrar. It was a matter of some disquiet to the legal profession in Tasmania when the Federal Court abolished the position of district registrar in Hobart and assigned the responsibilities to the district registrar in Melbourne. While the case load of the Hobart registry is obviously not as heavy as those of the registries in the other state capitals, the functions of a registrar are important ones and it is not acceptable to Tasmanian practitioners and unrepresented litigants in that state that those functions should be outsourced to the Melbourne registry of the court.

As my colleague Senator Abetz remarked in October, in the basics of Federal Court administration there should be ‘equity between the states’ and all states should ‘have a full-time registrar’. At Senate estimates, we heard that the abolition of the position represented at the very greatest a saving of about $200,000, which, in terms of the inconvenience to the Tasmanian legal profession and litigants in that state, seems a false economy indeed. Accordingly, I am delighted to note that yesterday in the House of Representatives the government conceded the opposition’s position on this matter, accepting the Senate’s amendment with respect to the position of the Tasmanian registrar by moving its own amendment to this bill. As I understand it, the deputy registrar’s case load will be supplemented by responsibility for the Administrative Appeals Tribunal. This is a very sensible outcome, and I am delighted that both the government and the Federal Court administration were able to see the force of the position taken by the opposition and, in particular, by my colleague Senator Abetz and his Tasmanian Liberal colleagues in the Senate.

In its amended form, protecting as it does the interests of the state of Tasmania in that particular respect, I commend the bill to the Senate.