Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Link to this | Hansard source

I am pleased to speak on the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009. This bill 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 so as to ensure that the parties keep to an appropriate timetable, 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 and 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 responsibility for the effective discharge of the business of the court.

While the intention of the bill appears fairly innocuous, it is important that the bill be closely scrutinised for potential problems. In particular, it needs to be recognised that there can be a tension between the concepts of efficient case management and the interests of justice. This was recognised by the High Court in State of Queensland v JL Holdings Pty Ltd, 1997, where it was held that case management principles could not supplant the attainment of justice. The overarching principle proposed by the bill seems intended expressly to equate efficiency with justice.

As mentioned in the Bills Digest, 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 term 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 has been referred to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 17 September. As at 7 August, only one substantive submission had been posted on the website of the legislation committee’s inquiry into the bill itself, and that was from the Law Council of Australia. The Law Council generally welcomes the reforms which are the subject of the bill, and states:

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.

However, the Law Council points out that there are certain provisions in the bill that should be considered further. They include: in respect of proposed paragraph 37N(2)(b), requiring a legal practitioner to assist clients to comply with the overarching purpose of the litigation extends the obligation on legal practitioners beyond acceptable limits and potentially creates difficulties which could effectively frustrate the whole aim of the overarching purpose; in respect of proposed clause 37N(4), application of this provision could effectively enable the court to consider matters ordinarily the subject of settlement privilege, thereby impliedly abrogating that privilege; in respect of proposed paragraph 37P(3)(c), this provision exceeds the acceptable level of control by the court by fundamentally affecting the way a party through its legal representatives makes decisions about the best way to present its case, which the Law Council believes is the prerogative of parties in adversarial proceedings; in respect of proposed clause 24(1AAA), decisions about the security of costs are not ‘minor interlocutory decisions’ and should be subject to appeal, as such decisions could have profound consequences for parties to proceedings; and, in respect of proposed paragraph 21B(1A)(b) of the Family Law Act and related proposed provisions in the Federal Court and Federal Magistrates Court acts, enabling the chief judge to restrict a judge to non-sitting duties potentially interferes with the exercise of those judicial powers and may compromise judicial independence if that power is misused.

While several other submissions have been received in relation to the inquiries undertaken by the Legal and Constitutional Affairs References Committee, these generally relate more narrowly to the terms of reference of those inquiries and not to the provisions of the bill itself. In conclusion, the coalition foreshadows amendments to the bill pending recommendations made by the Senate Legal and Constitutional Affairs References Committee.

Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

I speak on behalf of my constituents who really believe that access to justice is important. I speak in favour of the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009. We have inherited the British legal system. In the UK the courts ran themselves for many centuries, usually with the support of the monarch of the time. After Australia was settled, the law of the UK was brought over in 1828. The rise of equity overcame so many of the failings of the common law. The judicature acts in the 19th century in the UK brought much needed reform to its court system. But for much of our legal system, which was established at Federation, there was not much change until we saw the rise of the federal court system in this country.

Law reform was initiated by then Attorney-General Sir Garfield Barwick, to give him his due, in relation to the Matrimonial Causes Act and then by Attorney-General Lionel Murphy in the 1970s. But for much of Australia’s legal and constitutional history there was not much change when it came to how courts operated and functioned. Effectively, under our adversarial system, litigants and their lawyers determined how cases would proceed. Judges stood back and listened. They participated, gave sage advice, gave a sage summing up if it was a jury or made a judgment at the end of the case. But that involved lots of delay. When I started practising as a lawyer in the early 1980s that is really how the system operated. We still saw that in the civil courts of the states. There was reform with the federal Family Law Act and the establishment of the Family Court and the Federal Court, but they were in an embryonic state even in the early 1980s.

Courts cost money—they cost a lot of money to run. Litigation costs a lot of money for litigants. It is extremely expensive. The Attorney-General in his second reading speech on 22 June said:

Put simply, without an accessible system of justice, the public’s confidence in the rule of law is compromised. If justice is accessible only to the very wealthy, it loses relevance for the vast bulk of Australians.

I agree with what the Attorney-General had to say. What we need is court systems—federal and state—which are efficient, inexpensive and expeditious. In my years practising as a litigation lawyer I saw many cases turned away, many cases frustrated and many cases delayed not only by the conduct of other lawyers, litigants and the inadequate funding of the court system but also by the idiosyncrasies and eccentricities of certain judges who might not have wanted to hear a case on a particular day. On many occasions discovery, interrogatories and the appearance and preparation for an interim or a final hearing were delayed, allegedly for good reason, without costs orders being imposed on those litigants or the lawyers who procrastinated and obstructed the operation of the court system and the expeditious hearing of litigation.

What we need in this country is to make sure that the rules and regulations for uniform civil procedures that we saw, say, in Queensland and New South Wales and elsewhere are put forward into the legal system at a federal level. We have seen, for example, under the Family Law Act in the Federal Magistrates Court, regulations and rules. Perversely, the Federal Magistrates Court often has different rules from the Family Court, even in exercising family law jurisdiction. We need to make sure that our judges have clarity when it comes to the statutory guidelines in making decisions. But we also need our judicial system to provide an efficient, cost-effective service to the Australian community.

The amendments here do provide for streamlining and for more efficient appeals with respect to the Federal Court in civil proceedings. They also enable the chief justices of the Federal Court and the Family Court and the Chief Federal Magistrate to ensure that they can efficiently discharge the duties and responsibilities of the court in the administration of justice in a way that is cost-effective and smart. I really appreciate the amendments that we are seeing here today, because they will enable courts to more actively manage, in terms of the case management proceedings of the courts, the kind of cases in civil proceedings which are dealt with by the Federal Court and, indeed, the Family Court as well.

So the legislation before the chamber is about effectiveness, accountability, transparency and accessibility. The amendments include an overarching obligation on the Federal Court. That overarching obligation covers both litigants and legal practitioners, to ensure that there is a resolution of disputes in a just and timely way, quickly, inexpensively and as efficiently as possible. There is clarification with respect to the kinds of directions a court can make to ensure that court proceedings progress through to a resolution by alternative dispute resolution methods or by way of mediation outside of the alternative dispute resolution proceedings of the court or, indeed, to a final hearing or an appeal.

I am pleased that costs are, potentially, able to be imposed upon litigants and lawyers who fail to comply, consistently, with the overarching purpose or objective, because there were many times in my experience as a lawyer where I turned up to court with a client, prepared, only to find that the sloppiness, the failures, and the downright deliberate acts of the other side intentionally to frustrate the court system, resulted in no cost penalty being imposed upon that litigant or upon their lawyer, who often participated or collaborated in the way in which his or her client frustrated my client’s attempt to have justice done on that particular day.

The sections dealing with costs are important and timely. It is important that we know that if someone misbehaves with respect to the directions of a court then there are consequences, because if there are no consequences then people simply feel that they can get away with it. What happens then is that we all pay, because litigation is delayed. It means that litigants suffer. And many of these cases involve companies and businesses, and lives are affected in terms of economic loss, emotional cost to the litigants and, in matters to do with family law, real familial dislocation, conflict and aggravation. So the legislation before the House is very important in terms of dollars, but it is also important in terms of people’s domestic arrangements and the business operations of our economy. I think it is important that we should support this legislation. It makes clear that costs orders can be imposed upon people if duties and specific conditions and directions made by the court are disobeyed. There is much confusion with respect to rules and regulations and guidelines—

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

Order! It being 6.40 pm, the debate is interrupted in accordance with standing order 192, and the resumption of the debate will be made an order of the day for the next sitting.