Peter Slipper (Fisher, Liberal Party) Share this | Hansard source

I thank the House for the opportunity to make a contribution to the debate on the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009. As a person who practised as a lawyer for many years, I would say ‘The cost of litigation is money well spent,’ but in the interests of the community it is important that, as elected representatives, we try to make sure that there is access to justice at an affordable rate.

The cost of litigation in civil matters is a matter of concern to the community because it has now got to the stage with court and legal costs that many people have to walk away from their legal rights simply because they are unable to fund access to those legal rights. Sometimes it might mean that a person who does in fact take action might win the case but might ultimately be out of pocket. Of course, one can never be quite sure as to what the result is going to be in a case, and it is possible that, if someone sought to pursue his or her legal rights, the case might be unsuccessful and the litigant might be responsible for not only his or her own costs but also there could well be an award of costs against the person who lost the case, and that happens quite regularly.

There is no panacea, however, to fix this obvious problem, and everyone accepts it is a problem. It would be great if it were possible to solve litigation in an easy, quick and certain way to make sure that people’s rights were fully enforceable and that people could receive redress where they were legally entitled. Of course, the court system aims to achieve this. Successive governments over the years have seen access to justice as being a very important matter of equitable decency in our society. Having said that, the cost of litigation continues to go up, and it used to be very difficult for me, as a lawyer, to advise people that at times it simply was not worth pursuing what was clearly a case which ought to have been litigated.

The cost of litigation is one that has always impacted on the abilities of a party seeking to right a legitimate wrong. It has always impacted on the ability of a person to enforce his or her legal rights.These cases are fought, often, by people who believe that they are aggrieved. They can take considerable time, and are therefore particularly costly, as rival parties put forward their legal arguments and present evidence and witnesses in the pursuit of victory.

With this in mind, the bill aims to modify the Federal Court of Australia Act 1976 so as to, among other things, focus the Federal Court on resolving disputes more quickly. This in turn will help to reduce the costs of litigation and also improve the accessibility of legal avenues to those in a financial position that might otherwise preclude them from taking action to enforce their rights. The bill aims to preserve, however, the overarching demand that justice will be served.

It is important for courts to remove inefficiencies where possible. While the courts largely manage how they look after their cases, it is always important that the parliament encourage courts to do proper management so that it is possible to resolve cases as expeditiously as possible. This bill seeks to improve the situation—and certainly its passage will improve the situation—but it is possible that there could be disagreement between the courts and the battling parties as to what constitutes time-wasting, which procedures might be regarded as frivolous and which items of business genuinely needed to be allowed to run, as long as this is done in the interests of achieving justice.

With all that said, the provisions of this bill aims to encourage efficiencies by focusing the court, barristers, solicitors and opposing parties to seek to resolve their dispute as quickly as possible. This provision takes into account some recent high profile cases between warring major commercial companies. The lengthy and regular delays in these cases tie up considerable government and court resources—not to mention the resources of the parties—and contribute to major inefficiencies and massive cost blowouts.

The bill will give the courts the ability to allocate resources according to actual and legitimate needs, taking into account the complexity of the particular case. The efficiency with which the court operates will be supported and improved by further changes outlined in this bill. The bill includes changes that promote reforms to case management and general procedures, that place upon the courts an obligation to seek genuinely a resolution to a particular case and that give powers to the courts so they can issue specific directives to achieve a resolution of a particular case so that the court is able to avoid any unnecessary delays.

The bill also introduces a legal framework to which the courts can refer when issuing directives to ensure that a particular case is dealt with within the law as quickly as possible and that the courts themselves have a legal foundation on which to base their directives. These directives could include: limiting the number of documents that can be tended as evidence, limiting the number of witnesses, referring the matter for alternative dispute resolution, penalties for failing to observe these directives and penalties incurred by those parties who fail to abide by the overarching purpose of resolving a matter within the law as quickly and as fairly as possible.

Schedule 2 of the bill aims to provide a more streamlined appeal process—one that is less confusing and supports the objective of resolving disputes as quickly and as inexpensively as can be expected. These provisions include having a single judge who can make a ruling on a matter, taking away the ability of a party to choose for a matter to be heard by a judge or a full court and clarifying appeals processes from interlocutory decisions.

Schedule 3 provides for amendments that aim to enhance the public view of the justice system. It outlines modifications to the Federal Court of Australia Act 1976, the Family Law Act 1975 and the Federal Magistrates Act 1999 to clarify the powers of the chief justices of the Federal Court, the Family Court and the Chief Federal Magistrate. The bill makes provisions that widen the responsibilities of the heads of these courts to ensure that the business of the courts is effectively discharged.

The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 is a genuine effort by the government and by the parliament to bring about justice expeditiously and to remove delays. If it works it will enhance the public view of the court system. All of us have heard cases where judges are slow, where people cannot get their cases before a court and even when they are before a court the case seems to drag on forever, with financially debilitating results. This bill is not a panacea. It will not solve all of the problems but it is certainly a step in the right direction. I commend the government for introducing the bill at this time.

See this speech in context