judicial management australia

The need for judicial management of individual cases is now the received wisdom across Australia. [4] Chief Justice’s Working Party on Civil Justice Reform (Hong Kong), Civil Justice Reform: Final Report (2004), [500]. By the end of the 1990s, most Australian courts had implemented case management procedures, which take various guises. [23] One of the promised benefits of the new system was cost savings brought about by judges’ familiarity with matters in their dockets. HSBC Holdings PLC has filed a court application to place oil trader Zenrock Commodities Trading Pte Ltd under judicial management over non-payment of dues and other issues, four people familiar with the matter said on Wednesday. [36] The authors explained the additional costs incurred as a result of early case management as follows: Lawyer work hours may increase as a result of early management because lawyers need to respond to a court’s management — for example, talking to the litigant and to the other lawyers in advance of a conference with the judge, travelling, and spending time waiting at the courthouse, meeting with the judge, and updating the file after the conference.[37]. [15] An early proponent was Maureen Solomon, whose recommendations led to the Australian Federal Court’s adoption of the docket system. This would alert practitioners, and remind the Court, of the range and flexibility of the powers available to the Court. How case management works or not, as the case may be, should be part of that dialogue. [21] Allens Arthur Robinson, Submission DR 10, 19 January 2011. I’ve got a gut feeling it’s going to settle, if not we’ll run around at the end and get the witness evidence, so again we’ve been forced to be ready for trial, so you’ve got to get your good proofs of evidence in the right order, in the right format, done, sent to clients, and all this sort of stuff and make sure they’ve signed and done them, that’s bound to increase the cost.[45]. Yet even the enshrinement of such worthy goals is not new. 4. 7.3 Stronger judicial control over the scope and process of discovery has been singled out by some commentators as critical to discovery reform. If costs cannot be controlled, the client comes to the view that law itself is useless and irrelevant: a deeply dangerous outcome. Exceptionally good reasons would need to be given for any delay requiring vacation of the allotted date. It is at least as old as Magna Carta, in which King John made the following promise: To no one will we sell, to no one will we deny or delay right or justice. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 5. A constitution confers th… The relationship between the level of case management and litigation costs, however, is by no means linear. That, in turn, would exert downward pressure on expenses. [15] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 1. [9]Civil Procedure Act 2010 (Vic) s 56. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 14. [28] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 61. Some features of this site may not work without it. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 14. I suggest a new dialogue based on these fundamentals. Footnotes (2000) 204 CLR 82, 92-3. Despite the unique features of American civil procedure, it would be unwise to dismiss the RAND findings out of hand as somehow inapplicable or irrelevant. When next they have a problem, they do not return to the lawyer who has denied them true value for money. (2) Without limiting subsection (1), a court may make an order or give directions—. The role of “but say” may re-emerge. One danger of excessive judicial case management is that it provides comfort to the second species of practice by fostering passivity in the profession as a whole. If, in the face of these risks posed by judicial case management, we were overcome by cynicism about the prospects of reducing litigation costs, one tempting option would simply be to set a date for hearing very early in the process, focusing the practitioners’ minds on the need either to settle or to adhere to a timetable to have the matter ready for trial. Professors Peysner and Seneviratne observed that their findings in relation to the effect of the Woolf reforms conform to what is referred to in business as the “Quality Triangle”. [1] Edward Gibbon, Decline and Fall of the Roman Empire (Vol II, 1781), Ch 17 (available at ). [68], Eventually, the problems were addressed when the “universal case management” approach was replaced by a more flexible arrangement under which management was undertaken only for those “cases that truly required court intervention.”[69]. state and federal. Register to receive daily court lists by email soon after they are published. In Australian judicial system, the courts that are found in each state are divided into levels which from the highest level are the Supreme Court, the Intermediate courts and the Lower level courts. Queensland 4003. Federal Court of Australia Act 1976 (Cth) s 37P was enacted by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). Clients should not have to pay like this for process, and they should not do so. [62] C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 89. [24] C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 12. Jump to navigation Jump to search. Despite the intuitive appeal of Lord Woolf’s conclusions about the best method to reduce costs, the empirical evidence gathered after implementation of the Woolf reforms does not bear those conclusions out. If so, how can a substitute procedure be put in place that will achieve the valid end in question, without feeding process-driven costs. [11]Federal Court of Australia Act 1976 (Cth) s 37P(5). As observed in the American and English studies to which I have alluded, case management has the potential to cause parties to bear costs that might not otherwise have been incurred. Partly this is due to what may be described as the “clout” of judicial officers; partly it is a function of the fact that matters, if they go to trial, will be heard by a judge rather than by anyone else. [41] The authors of a study into our own Federal Court’s docket system labelled such attacks “unwarranted”.[42]. Justice and law are not “products” or “services” to be delivered at higher or lesser “quality” depending on the priorities of the day. There shall be a Judicial Appointments Advisory Panel (the Panel). It is a social and constitutional imperative to make reasonably available the process of court adjudication. [80] [2001] FCA 1333; applied by the New South Wales Court of Appeal in Nowlan v Marson Transport Pty Limited [2001] NSWCA 346; 53 NSWLR 116 at [28] 128. Section 55 provides that ‘a court may make any order or give any directions in relation to discovery that it considers necessary or appropriate’ and then gives an extensive, but non-exhaustive, list of directions that Victorian courts may give in relation to discovery. Plainly enough, though, this kind of management need not be carried out by a judge. [37] JS Kakalik et al, Just, Speedy, and Inexpensive? Pacific Judicial Development Programme . [14] R Pound ‘The Causes of Popular Dissatisfaction with the Administration of Justice’ (1906) 29 ABA Rep 395, 405-406. Login Search JavaScript is disabled for your browser. Recommendation 7–2 The program referred to in Recommendation 7–1 should cover, among other … In other words, if a judge’s attitude to case management is that it is an onerous administrative burden that he or she should not be required to undertake, then the results may be counterproductive. Thailand is not a party to the Hague Service Convention therefore the above treaty is the only agreement currently in place between Australia and Thailand in relation to judicial assistance in civil and commercial matters. A landmark study of the effects of judicial case management was undertaken by the RAND Corporation’s Institute for Civil Justice, published in 1996. But, is it truly to be said that type B is not a problem? [81] White v Overland [2001] FCA 1333 at [4]. The question of whether to include similar powers in the Federal Court of Australia Act may therefore be usefully reconsidered in the future. It is one of the attractions of arbitration. Papers of seminars & other events held in the Federal Court, Including Welcome and Farewell ceremonies, About the judgments collection, including FAQs, Select alerts based on National Practice Area, Administrative and Constitutional Law and Human Rights NPA, Federal Crime and Related Proceedings NPA, Law Council of Australia's "Federal Court Case Management Handbook", Learn about Court processes, procedures & documents. The duty of lawyers to promote the just, timely and cost-effective resolution of court proceedings has been given legislative imprimatur in several jurisdictions, including the Federal Court. [18] See J Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374, 376-7. Email info@alrc.gov.au, PO Box 12953 It should never be allowed to undermine the practice of the law. If you think clients do not sometimes feel like this, I think you need to get out more. If it is done properly, judicial management of a case may inculcate habits and practices that are carried over into the practitioners’ next matter. [20] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 2-3. A little plain speaking is required. The substance of these provisions was enacted in s 55 of the Civil Procedure Act 2010 (Vic). In particular, there is no clear judicial responsibility for managing individual cases or for the overall administration of the civil courts.[10]. Find hearing dates & times for all current matters in the FCA and FCC. [28] Less time should be spent by lawyers and advocates refreshing their memory of any given matter after an unnecessary delay, while the necessity to adhere to a timetable should focus practitioners’ mind on the essential issues. [14] I Turnbull, Submission DR 05, 15 January 2011; M Legg, Submission DR 07, 17 January 2011; Department of Immigration and Citizenship, Submission DR 13, 20 January 2011. [38] JS Kakalik et al, Just, Speedy, and Inexpensive? 7.13 The Federal Court’s power to make costs orders and to refer legal practitioners to appropriate disciplinary authorities for failures to comply with discovery obligations are discussed, respectively, in Chapters 9 and 12 of this Report. 7.6 Section 55(3) of the Civil Procedure Act also provides that a court may make any order or give any directions requiring a party discovering documents to: (a) provide facilities for the inspection and copying of the documents, including copying and computerised facilities; (b) make available a person who is able to—, (i) explain the way the documents are arranged; and. That, however, is not a reason to give up the struggle; rather to reflect on the difficulty of the task. Where the principles of “caseflow management” hold sway, law ceases to be impassive and distant. Disputes in society are inevitable. 2. 7.20 Given that most submissions that addressed this question did not support the proposal, and given the limited evidence that the proposal would have the desired effect, the ALRC has decided not to make a recommendation to prescribe in detail such powers in the Federal Court of Australia Act. The result of such diagnoses is case management. Project Management Toolkit. Furthermore, parties who are destined to settle are nevertheless, as we all know, perfectly capable of running up litigation costs, whether or not judges become involved in case management. (a) that proceedings for contempt of court be initiated; (b) adjourning the civil proceeding, with costs of that adjournment to be borne by the person responsible for the need to adjourn the proceeding; (c) in respect of costs in the civil proceeding, including indemnity cost orders against any party or a legal practitioner who is responsible for, or who aids and abets, any conduct referred to in subsection (1); (d) preventing a party from taking any step in the civil proceeding; (e) prohibiting or limiting the use of documents in evidence; (f) in respect of facts taken as established for the purposes of the civil proceeding; (g) awarding compensation for financial or other loss arising out of any conduct referred to in subsection (1); (h) in respect of any adverse inference arising from any conduct referred to in subsection (1); (i) compelling any person to give evidence in connection with any conduct referred to in subsection (1), including by way of affidavit; (j) dismissing any part of the claim or defence of a party who is responsible for any conduct referred to in subsection (1); (k) in relation to the referral to an appropriate disciplinary authority for disciplinary action to be taken against any legal practitioner who is responsible for, or who aids and abets, any conduct referred to in subsection (1). [79] Federal Court of Australia Act 1976 (Cth), ss 37M, 37N, 43(3)(f); Family Law Rules 2004 (Cth), rr 1.07, 1.08, 19.10; Civil Procedure Act 2005 (NSW), s 56; Civil Procedure Act 2010 (Vic), ss 7, 28. [7], As Professor Jolowicz observed in the 1970s, “[t]he essential question … concerns the extent to which the powers of the court can be increased without thereby sacrificing other values which are held to be vital to the due administration of civil justice.”[8]. 5. [9] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 4. Empirical support for this hypothesis is shaky. [20] In the Court of which I am Chief Justice, a docket system has been in place since 1997. [1] These aspirations were taken up by the Hon Justice Ray Finkelstein in 2008 at a workshop on case management reforms: The key to discovery reform lies in active and aggressive judicial case management of the process. Chapter I, II and III of the Australian constitution deals with the Separation of Powers. [11] Lord Woolf MR, Access to Justice: Interim Report, ch 3 at [4] (available at < http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/interim/chap3.htm>). [65] Federal Court Rules 2011 (Cth), rr 1.31, 1.32. The profession is primarily responsible for the skilful conduct of cases. [21] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 1. Costs ballooned, judicial resources were stretched, and delays spiralled out of control. Judicial case management. What they should be prepared to pay for, and what they do not begrudge, is paying for real skill and experience. BT FILE PHOTO . If process-driven costs can be reduced to a bare minimum, fees for true skill and acumen will not seem so painful. As the VLRC reasoned in its Civil Justice Review: Expanding discovery case management powers should encourage the judiciary and the parties to be more proactive in confining the scope of discovery and ensuring that the process assists rather than hinders the administration of justice.[8]. [56], The authors concluded that while the cost increases in NSW were due to factors unrelated to the new case management regime, it could be observed “that the Court’s reforms have not contained litigation costs.”[57] Case management reforms in Victoria, by contrast, had been successful in containing costs because of the active role of judges in controlling the development of cases, particularly the use of discovery and interrogatories.[58]. The judicial system allows the decisions that are made at one level to be appealed at another level that is higher than the former level. [71] C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 79. The system’s rationale is to “promote more active and effective judicial case management in order to streamline processing, encourage early settlement and, overall, to dispose of cases more efficiently.”[22] “Efficiency” in this context denotes the reduction of delays and costs. Further, both political and legal system works and operates on two levels i.e. The picture that emerges from these studies is, at best, blurry. [13] Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Proposal 3–5. Instead, judges and special masters should be encouraged, through judicial education or otherwise, to make greater use of their existing case management powers and to monitor more closely the parties’ compliance with the timetable.[21]. Nevertheless, such an approach would not be without its difficulties. Judicial review at a federal level has been available under the Constitution since the inception of the Commonwealth. [11], It has been suggested that while cost and delay are problems of ancient lineage, the analysis that identifies excessive adversarialism as the source of these dual problems is more recent. [16] C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 3. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 14. [21] Space and time do not permit a detailed tribute to and comparison with the United States federal district court model upon which the Australian Federal Court’s initiative in the 1990s was based. [2] Edward Gibbon, Decline and Fall of the Roman Empire (Vol IV, 1788), Ch 44 (available at ). [19] C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 91. One explanation the authors proffered for their findings related to the American system of discovery: [O]nce judicial case management has begun, a discovery cutoff date has usually been established, and attorneys may feel an obligation to begin discovery. Judiciary of Australia. A few … said that by trying to manipulate a case to fit a model a judge may in fact be significantly altering the nature of the case.[66]. for additional assistance. Phone +61 7 3248 1224 Judicial management involves provisional and final processes with the latter seeking to implement long-term strategies. [20] In the Court of which I am Chief Justice, a docket system has been in place since 1997. Recommendation 7–1 The Federal Court of Australia, in association with relevant judicial education bodies, should develop and maintain a continuing judicial education and training program specifically dealing with judicial management of the discovery process in Federal Court proceedings.. On the other hand, it might be thought that the likelihood of “something else being required to be done” will always be higher where there is no trial date to focus the practitioner’s mind. Section 474 of the Act creates a statutory scheme providing for the finality of a privative clause decision. Courts should organise their structures to facilitate efficient and skilled lawyers, and to impede or prevent process-based costs that are unnecessary. If you just treat it as a formal standardised process, ‘oh well we’ve got to go through it’, I don’t think you are going to find any change between this system and the old. 7.19 It is debatable, however, whether prescribing the Federal Court’s case management powers in greater detail in legislation would generate such an improvement in the discovery process. That system required certain steps to be taken in all cases, including mandatory mediation to tight timetables, the early setting of trial dates, the filing of timetables for the running of the matter, case conferences where such timetables proved unworkable, and so on. [67] The Ontario Chief Justice reported on the system’s failures thus: [L]itigants … bore the cost of the numerous procedural steps that Rule 77 added to all cases at the outset of the civil litigation process. [20] Allens Arthur Robinson submitted that it was not the availability of case management powers and sanctions that caused concerns, but ‘the manner in which those powers are currently exercised’: Lenience is often shown where a party wilfully or negligently fails to comply with the rules or a timetable … New or more express powers would not address these concerns unless the Court exercises its discretion more strictly and consistently. In general terms, the American document discovery procedure is more complex and liable to be more contentious.”[39] Accordingly, if one of the effects of early judicial management in the American context is to make the costly discovery procedure more likely, that needs to be borne in mind when assessing the extent to which the RAND study findings are applicable to other jurisdictions. Now that we have reached the subject of focusing practitioners’ minds, allow me to step back for a moment. The source of data about litigant costs was a collection of surveys of solicitors.[52]. First, by ensuring that cases continue to progress in a timely fashion, the efficiency of their preparation should increase. [1] Law Council of Australia, Final Report in Relation to Possible Innovations to Case Management (2006), Proposal 5(a). Freiberg A, 'Non-Adversarial Approaches to Criminal Justice' (2007) 16 Journal of Judicial Administration 205. First, costs may be “front-loaded”, with the result that parties who would in any event have settled their disputes are nonetheless forced to pay significant amounts for work done by lawyers in complying with case management requirements. Both papers discuss the current state of judicial review in Australia and seek submissions relating to reforms. The distinction between them lies in divergent responses to the stimulus of a client’s instructions in relation to a dispute. Such a development would have a profoundly deleterious impact upon the administration of justice. Nevertheless, there is an imperative in making sure that judges know what they are trying to do in case management and what the costs involved are. 7.7 While the Federal Court of Australia Act does not include this level of detail, the Federal Court does have authority to make such orders in relation to discovery. Referral of appropriate cases to alternative dispute resolution programs. If a fight is necessary, it is had; but only on the real issues worthy of the trouble and cost of the fight. [82] White v Overland [2001] FCA 1333 at [4]. [74] JS Kakalik et al, Just, Speedy, and Inexpensive? (ii) help locate and identify particular documents or classes of documents. [3] Other jurisdictions have also concluded that improvements to the discovery process are a matter for judicial case management. In the rise of judicial case management, we are witnessing no less than a shift in common law philosophy. In type B practice, when faced with the client’s instructions, the response is to think of the fees that might foreseeably be derived by dealing with the dispute, without an eye to any parsimony of issues or costs. According to the report, litigant costs increased from 1994 to 1997 in NSW, but either decreased or remained steady in Victoria. The doctrine of separation of powers is an essential feature of the constitution and forms the backbone of the same. The echoes of the RAND study findings are clear. It emerged under the label of “caseflow management” in the United States in the early 1970s. If you are going to be ready for trial, you would get in all your witnesses and everything lined-up, which in the old days you weren’t really doing until the eleventh hour because you’d think it’s going to settle. But the recognition of what we do, and who we are, will go some way towards that: We are not in a business or an industry; we are a profession, that is founded on duty (fiduciary duty) that, as Cardozo CJ said in 1928, is not governed by the morals of the market place (by which he meant honesty and reasonable good faith) but by the punctilio of an honour the most sensitive. The good news is that productive emotion management skills can be learned and practiced. This is a danger irrespective of the propensity of most litigants to settle out of court. 7.18 If changes were to be made to the Federal Court of Australia Act to articulate more clearly the Court’s existing statutory powers to manage the discovery process, this may encourage judges, the parties and practitioners actively to confine the scope of discovery and reduce the burden of litigation. The thesis is that “of the three objectives in a business — speed of delivery, cost of production and quality of production — it is possible to improve two out of three but rarely all three.”[48] In supposed conformity with this “iron law”, the study found “that the case managed court based dispute resolution system is delivering quality (justice) at a much improved pace but not any more cheaply, and possibly, at higher cost.”[49]. The Civil Justice Reform Act of 1990 (which, incidentally, was the result of proposals of a taskforce initiated by then-Senator Joseph Biden, leading to the eponymous appellation, the “Biden Act”) designated ten “pilot” district courts, which were required to adopt certain case management principles, while ten others (what we might call the “control” districts) were not so required. [39] A Eyland, ‘Legal Costs and Case Management’ (2004) 27 UNSW Law Journal 231, 232. [24] There would no longer be any need to explain the case afresh each time it came before a judge. The risk is that judges given a large amount of leeway to control cases before them will simply develop their own cookie-cutter procedures. In other words, for cases that lasted at least nine months, the additional costs run up by lawyers complying with early judicial case management instructions were not, across the board, offset by any savings in time that resulted from a quicker disposition. We pay our respects to the people, the cultures and the elders past, present and emerging. [5] Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 470. In light of this, I propose to make some remarks about the perils of case management that must be borne in mind whenever it is proposed to deploy it as a means to reduce costs. It may happen in at least two ways. Later in his celebrated History, Gibbon returned to the pitfalls of litigation in a declining Empire: The expense of the pursuit sometimes exceeded the value of the prize, and the fairest rights were abandoned by the poverty or prudence of the claimants. While this type of analysis may be taken for what it is worth, we ought to be careful lest the use of corporate-babble lead us to misconceive of courts as businesses providing a dispute-resolution service. How can it be avoided? Judicial management in South Africa : its origin, development and present day practice and a comparison with the Australian system of official management . & Martin, Greg. Lord Woolf put the interrelated problems of cost, delay and complexity squarely at the feet of judges and the role they played in the litigation process: These three [problems] are interrelated and stem from the uncontrolled nature of the litigation process. Each judge is responsible for the matters in his or her docket. Ordinarily, pre-judicial management presupposes that creditors’ obligations are paid before the cancellation of the judicial management order, among other requirements. It is possible, therefore, that judicial case management in one case will have an impact on costs not only in that proceeding but also in others down the track. It should be recalled that one of the conclusions of the RAND Corporation study was that this case management method had a significant degree of success in shortening the length of time a case would remain in the list, though it had no impact on costs.[74]. Providing for the way in which matters are litigated the costs to litigants are also in. Cases to alternative dispute resolution programs Federal district courts there is a social constitutional! Without limiting subsection ( 1 ), 470 the role of “ but say ” may.. 77 ] and with the case afresh each time it came before a judge who put the. 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