Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

I thank the Senate and in particular Senator Bishop for allowing the normal formalities with bills to proceed. On this occasion I am standing in for our very excellent and very learned shadow Attorney-General, the Hon. George Brandis SC. The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 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 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 bill introduces an overarching purpose to case management, which is to facilitate the just resolution of disputes according to law 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 a responsibility for the effective discharge of the business of the court.

At the time this 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 the case Queensland v JL Holdings Pty Ltd 1997. However, the court revisited the issue in Aon Risk Services Australia Ltd v Australian National University on 5 August 2009. The 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, thus frustrating the proper functions of the courts. This bill sits happily with that clarification.

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 turn 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 was referred to the Senate Legal and Constitutional Affairs Committee for inquiry and it reported on 17 September. The only substantive submission received was that from the Law Council of Australia. The Law Council generally welcomed the reforms which are the subject of the bill. In its submission the Law Council stated:

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.

Subject to one amendment, which will be moved in the committee stage, the coalition supports this bill. The amendment to which I refer is a matter on which Senator Bob Brown and I have been campaigning quite vociferously in Tasmania, and that is for a full-time registrar of the Federal Court to be positioned in Hobart. The Senate has carried motions to that effect. I personally have pursued the matter at Senate estimates on the last two occasions and of course Senator Bob Brown has himself pursued the matter as well. In discussions with the government it seems that the best way forward is to have an amendment, which I understand has now been circulated on sheet 5937, revision 2. I commend that amendment to the Senate.

I conclude my comments in relation to the amendment by saying that it is vitally important that the Federal Court has an appropriate jurisdiction in every single one of the founding states of the Commonwealth. Tasmania is one of those founding states. It is called the Federal Court and one would imagine that, in the basics of the Federal Court administration, there would be equity between the States and they would all have a full-time registrar. The move undertaken by the Federal Court is at best—at very best—about saving $200,000, but we still have not got to the bottom of that because at Senate estimates we were promised that there was no surplus of staff at the Melbourne registry, but all the work in Hobart could be undertaken by the Melbourne registry, although when the Hobart registrar had to fly to Melbourne to help them with their workload it was not because there was a surplus of work in Melbourne registry.

I invite people to read the Hansard and then go figure because quite frankly the explanations provided defied the pub test, defied logic, defied common sense. It seems as though it had more to do with empire building within the registry systems rather than the good management of judicial processes. We were also promised that with less the Hobart registry figures would be even better than they are now. If that is the way to administer court registries one wonders why all the court registries do not slash staff and as a result improve their outputs. I must say, politely, the logic sought to be provided to us by representatives of the Federal Court administration lacked substance.

As a result we in the coalition believe it is justified to move the amendment that Senator Bob Brown will be moving to ensure that the Hobart court registry is reinstated to its proper place and position. It also seems that there is a bizarre demarcation dispute between the Administrative Appeals Tribunal and the Federal Court registry because we were told that the Hobart registrar, when he was full-time, did quite a bit of work for the Administrative Appeals Tribunal. However, the Administrative Appeals Tribunal did not want to make a contribution to the salary of the Federal Court registrar in Hobart and so now the Administrative Appeals Tribunal, also run by the government and so also run by the Australian taxpayer, will have to find somebody else to do the Administrative Appeal Tribunal work. Whilst the Federal Court potentially might save some money it is quite clear that another arm of government will have to spend more money on servicing the Administrative Appeals Tribunal aspect in Hobart and as a result the so-called savings in globo will be substantially diminished.

I have indicated to the Federal Court that in future Senate estimates I will be inquiring into the actual alleged savings, but if this amendment is carried one hopes that everything will be reinstated, as it should be, and as a result we will not need to pursue those questions at future estimates. In brief, the coalition commends to the Senate both the bill and the amendment co-sponsored by Senator Bob Brown and me.