Contents Introduction to Civil Procedure... 1 Procedural Law... 1 Guiding Principle for Procedure... 1 Adversarial System of Litigation... 1 Cards on the Table Approach to Litigation... 2 Principle of Open Justice... 2 Provision of Reasons for Decisions... 3 Principle of a Fair Trial... 4 The Crown as a Model Litigant... 5 Right to a Fair Trial Recognised in HR Legislation... 6 NSW Court System: An Overview... 7 Supreme Court NSW... 7 Industrial Relations Commission and Industrial Court of NSW... 7 District Court of NSW... 8 Local Court of NSW... 8 Case Management... 9 Justice Delayed is Justice Denied... 9 Costs... 11 Litigation Costs... 12 Caseload Management... 13 CPA & UCPR... 13 Managerial Judging... 14 Directions... 15 Application of the CPA and the UCPR... 16 Ethical Requirements... 18 Practice Notes... 19 Jurisdiction... 21 Cross Vesting Legislation... 21 Limitation Periods... 23 Definition and Rationale... 23 Limitation Periods are Substantive Law... 24 Contract and Tort Limitation Periods in NSW... 25 Personal Injury Limitations Periods in NSW... 25 Preliminary Discovery... 27 Preliminary Discovery for Identity or Whereabouts... 27 Preliminary Discovery for Deciding Whether or Not to Commence Proceedings... 27 Procedure... 28 Interim Preservation Orders... 33 Power to grant interim injunctions... 33 District Court Act 1973 (NSW) s 46... 33 - Gives power to the District Court to grant injunctions, including interlocutory injunctions, in actions as defined in s 44... 33
Interim Injunctions... 34 Freezing Orders (Mareva Injunction)... 34 Practice Note SC Gen 14 - Supreme Court Freezing/Mareva Orders... 37 Search Orders (Anton Piller Orders)... 40 Practice Note SC Gen 13 Search/Anton Piller Orders... 40 Alternatives to Litigation... 47 Introduction... 47 Alternative Dispute Resolution... 47 Growth of ADR... 47 Issues with ADR... 48 Types of ADR Processes... 52 Negotiation... 53 Positional v Interest-Based Negotiation... 54 Role of the Law in Interest-Based Negotiation... 54 Mediation... 55 Why Choose Mediation?... 56 Comparison Between Negotiation and Mediation... 57 Role of the Lawyer... 57 Compulsory Mediation... 57 Ripeness of a Dispute for Mediation... 61 Mediation Process... 61 Preparing for a Mediation... 62 Underlying Benefits of Prelim Conference... 63 Challenges for the Future Regarding Prelim Processes... 63 Role of the Position Paper in the Prelim Processes... 63 Reframing the Position Paper... 64 Advocacy at Mediation... 65 Understanding the Mediation Process and Ensuring that the Client Understands It... 66 Understanding the Roles That a Lawyer Can Play at Mediation... 66 Understanding the Dispute and Client s Interest and Needs... 66 Assisting the Client to Seek Lateral Resolution of the Dispute... 66 Advising the Client of the Likely Best and Worst Outcomes... 67 Preparing the Client for the End Game of Mediation... 67 Engaging in appropriate advocacy at the mediation... 67 Arbitration... 68 Advantages of Arbitration... 69 Disadvantages of Arbitration... 70 Compulsory Arbitration... 71 Commercial Arbitration Act 2010 (NSW) (Voluntary Arbitration)... 72 Compulsory Referral to a Referee... 74 Enforceability of Agreements to use ADR... 75 Settlements Negotiation Privilege... 77 Litigation or ADR?... 81
Continuing Role for Litigation... 81 Application and Development of the Law... 81 Procedural Protections... 82 Urgent Relief... 82 Compelling Disclosure of Information... 84 State Enforcement Mechanisms... 84 Broader View of Justice... 85 What is Justice?... 85 Access to Justice Movement & Justice Definition... 86 Justice Beyond Courts... 86 Capacity of Court-Based Adjudication to Deliver Justice... 87 Costs & Security for Costs... 89 Proportionality of Costs... 89 Duties of Litigants... 90 Costs... 90 Lawyers and Costs... 91 Parties and Costs... 95 Solicitor and Client Costs... 95 Party and Party Costs... 95 Costs Follow the Event (Usual Costs Order)... 97 Specific Costs Orders... 98 No Order as to Costs... 98 Costs of the Day... 98 Costs Thrown Away... 98 Costs in any Event... 98 Costs in the Cause... 98 Security for Costs:... 98 Security for Costs Under Inherent Jurisdiction... 101 Funding Litigation... 103 Future of Litigation Funding in Australia... 104 Litigation Funding and Access to Justice... 105 Litigation Funders Market... 106 Emerging Opportunities for Funders... 106 Regulation of Litigation Funders in Australia... 107 Future of Regulation... 108 Lawyers and Litigation: A Pathway Out to Wealth and Fame?... 108 Contradictions of a Profession... 108 Ascendancy of Economic Values... 108 New Paradigm... 109 New Challenges... 110 The Future... 110 The Future of Pro Bono... 111 Pro Bono Today... 111
Why Lawyers Act Pro Bono... 112 Relationship with Legal Aid... 112 How Much is Done?... 112 Key Providers... 113 Engaging with Dispute Resolution... 113 Litigation Barriers... 113 Alternative Dispute Resolution... 114 Offers of Compromise and Calderbank Letters... 117 Offers of Compromise Under the UCPR... 117 Effect of New Rules... 118 Calderbank Offers... 118 Basic Rule as to Cost... 118 Policy and Purpose... 119 Calderbank Offers and Indemnity Costs... 119 Genuine Compromise... 119 Rejection of Offer Must be Unreasonable... 120 Usual Form of a Calderbank Offer... 120 Types of Offers... 121 Calderbank Offers v Rule Offers... 122 Causes of Action (Res Judicata)... 125 Introduction... 125 Cause of Action Estoppel... 126 Issue Estoppel... 126 Merger in Judgment... 127 Anshun Estoppel... 128 Pleadings... 133 Originating Process... 133 Appearance... 134 Pleadings... 135 Material Facts... 137 Evidence... 138 No Conclusions of Law as Material Facts... 138 Surprise... 138 Verification... 139 Particulars... 139 Particulars and Evidence... 141 Required Particulars... 142 Striking Out Pleadings... 142 Pleadings that Cause Prejudice, Embarrassment or Delay... 143 Pleadings that Do Not Disclose a Reasonable Cause of Action... 143 Service of Documents... 145 Service of Documents Generally... 145 Service of Originating Process... 145
Personal Service... 146 Service Constituting Personal Service... 148 Service by Agreement, Acknowledgment or Undertaking... 148 Acceptance of Service by a Solicitor... 149 Substituted and Informal Service... 149 Confirmation of Informal Service... 151 Waiver of Objection to Service... 151 Service Beyond the Jurisdiction... 151 Service Outside NSW but Within AUS... 151 Service Overseas... 153 UCPR PT 11... 153 Service by Private Means - UCPR Pt 11 (Division 1)... 153 Service by Diplomatic Channels UCPR Pt 11 (Division 2)... 155 Service Overseas: Under the Hague Convention... 157 Client Legal Privilege (CLP)... 159 Rationale for Client Legal Privilege... 159 Dominant Purpose Test to Determine Client Legal Privilege... 159 Loss of Client Privilege... 165 Representative Proceedings (Class Actions)... 173 Introduction... 173 Commencing a Class Action... 173 Seven of More Persons... 174 Claims Against the Same Person... 174 Same, Similar or Related Circumstances... 174 Substantial Common Issue of Law or Fact... 175 Class Action Proceedings... 175 Discontinuance and Subgroups... 176 Discontinuing a Class Action... 176 Sub-Groups and Individual Issues... 177 Class Actions in Australia: (Still) a work in progress... 177 Group Definition and the Right to Opt Out... 178 Right to Opt Out... 178 Reconciling Litigation Funding and the Opt Out Group Definition... 179 The Closed Class... 179 Settlement... 180 Shareholder Class Actions in Australia The Perfect Storm?... 180 Requirements for Court Approval... 181 Discovery... 183 Discovery of Documents... 183 Problems caused by the discovery process... 183 Improving the Discovery Process... 185 Discovery Process... 186 Practice note SC EQ 11: Disclosure in the Equity Division... 189
Implied Undertaking... 193 An Implied Undertaking an Obligation of Substantive Law (Hearne v Street)... 193 Third Party Obligations (Hearne v Street)... 194 Supreme Court Practice Note Gen 2... 194 Discovery and Technology... 197 Scope of Discovery... 199 Accessible/Inaccessible ESI... 199 Format of ESI... 199 Metadata... 200 Finding Responsive ESI... 200 Co-operation The New Paradigm... 201 Electronically Stored Information and Social Media... 201 ESI v Paper-Based Information... 201 Cloud Computing... 202 Social Media... 202 ESI and Discovery... 202 Social Media and Discovery... 203 Obtaining Access to ESI and Social Media... 203 Authenticity and Reliability... 204 Subpoenas and Interrogatories... 205 Subpoena to Produce... 205 Setting Aside a Subpoena... 205 Interrogatories... 209 Witness Preparation & Affidavits... 211 Witness Preparation... 211 Ethical and Effective Witness Preparation... 211 Affidavits... 215 Legal Requirements for Affidavits... 216 Oaths Act 1900 (NSW)... 216 Drafting Affidavits... 219 False Swearing... 221 Practical Litigation in the Federal Court of Australia: Affidavits & False Swearing... 223 Practical Litigation in the Federal Court of Australia: Affidavits & Written or Oral Evidence.... 225 Oral or Written Evidence... 225 Concluding Proceedings... 227 Summary Disposal... 227 Summary Judgment... 227 Default Judgment... 228 Setting Aside a Default Judgment... 229 Summary Dismissal... 230 No Reasonable Prospect of Success... 232 Want of Prosecution... 233
Introduction to Civil Procedure Procedural Law Procedural law is rules which are directed to governing ir regulating the mode or conduct of ct proceedings. (McKain v RW Miller & Co (SA) (1991)). It is the mode or method of enforcing a right. Procedural law is differentiated from substantive law in that procedural law regulates the way in which substantive rights and obligations are claimed and enforced without impacting on the definition of those particular substantive rights. The purpose of procedural law is to provide rules to facilitate dispute resolution. Guiding Principle for Procedure The guiding pple is derived from s 56 CPA to facilitate the just, quick and chea resolution of the real issues in the proceedings. This is supplemented by s 60 resolving issues in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. Adversarial System of Litigation The adversarial system of litigation has been criticised on the grounds that it prevents access to justice due to its cost (public and private) and delay. It has also been criticised for being unjust, unequal and producing inaccurate results. Victorian Law Reform Commission, Civil Justice Review: Report 14 (2008) Resource Allocation and distribution of civil and criminal cases Funding is a critical factor affecting the operation of the civil justice system Apart from its impact on the level of judicial and other resources, funding will influence the quality of judicial and other court personnel e.g. judicial personnel earn less than those practicing privately; there needs to be incentives According to the Productivity Commission, in the 05-06 financial years, recurrent expenditure on court administration for civil courts in VIC amounted to $86.3 million. In the same period, income derived through the civil courts in VIC, excluding fines amounted to $33.9 million. In recent times there have been increasing calls for users of the court system to pay more for the services provided, including in commercial disputes between resourceful commercial entities Access to justice is a qualified right. Governments cannot be expected to provide unlimited publicly funded resources for the adjudication of disputes, particularly private dispute which do not have significant interest beyond those of the parties From a policy perspective, there is a need to balance the governments duty to use public funds responsibly and the obligation of parties to bear some responsibility for resolving their differences 1
Requirements of effectiveness, efficiency and fairness are easily translated to the provision of court dispute resolution Court adjudication is effective if it determines claims with reasonable accuracy, within a reasonable time and with proportionate investment of litigant and public resources Adjudication is fair if the system ensures that its resources and facilities are justly distributed between all litigants seeking court help and between present and future litigants Generally accepted goals of the civil justice system cannot be pursued without some moderation, or pursued by unfair means or by exhausting every avenue of inquiry Cards on the Table Approach to Litigation Baulderstone Hornibrook Engineering v Gordian Runoff [2008] NSWCA 243 Allsop P The need for clarity, precision, and openness in the conduct of litigation flows most clearly from the statutory duty of a party in civil proceedings to assit the ct to further the overriding purpose to facilitate just, quick and cheap resolution fo the real issues in dispute It cannot be emphasised too strongly that it is the responsibility of the parties through their legal representatives to exercise a degree of cooperation to express the issues for trial before and during the trial Such cooperation can now be taken as an aspect of modern civil procedure in the running of any civil litigation This requirement is mandated under statute (Civil Procedure Act 2005 (NSW) Encompasses the requirement to be clear and precise extends to all aspects of the engagement in the Court s processes Principle of Open Justice Essential to the legal system, as Spigelman said in John Fairfax v District Court of NSW: The conduct of proceedings in public is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public Qualified in R v Richards & Bijkerk: Court proceedings are conducted in public and exposed to the cathartic glare of publicity. Publicity is one of the great protections against the exercise of arbitrary power and a reassurance that justice is administered fairly and impartially. The ct can depart from open justice in various ways including: Prohibition of publication of all or part of proceedings Video-link for witnesses Pseudonym orders Suppression orders 2
The power to make orders to close justice is an inherent power of a superior court and in statutory courts the power to make orders that depart from the open justice principle can be implies as necessary to proper function of the ct. Considered in John Fairfax as only to be permitted when really necessary to secure the proper administration of justice. This has been interpreted to mean that: The basis is that if the kind of order proposed is not made, the result will be that particular consequences will flow that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court (Mahoney JA in John Fairfax). Hogan v Hinch (2011) 275 ALR 408 Hinch, a radio broadcaster was responsible for a website (HINCH.net). Charged with 5 counts if contravening three suppression orders made under s 42 of Serious Sex Offenders Monitoring Act 2005 (Vic). Suppression orders prohibited publication of any information that might enable the identification of certain convicted sex offenders, who were the subject of post-custodial extended supervisions Hinch claimed s 42 was invalid because The jurisdiction or power conferred by it diminished the institutional integrity of the courts, contrary to the implied requirement of Ch. III of the constitution and; The prohibitions made under s 42 were contrary to an implication derived from Ch. II of the Constitution that all courts must be open to the public Held: appeal dismissed. It is a common law corollary of open-court principle that absent any restriction ordered by the court, anybody may publish fair and accurate report of proceedings. There are established exceptions to the general rule that judicial proceedings shall be conducted in public and that category is not closed to the parliament. As such, argument fails this would limit the legislative power of parliament, it indicates that a federal law would not deny an essential characteristic of a court exercising federal jurisdiction. Provision of Reasons for Decisions Wainhou v NSW (2011) 243 CLR 181 Plaintiff, member and former president of Hells Angels, sought a declaration that the Crimes (Criminal Organisations Control) Act 2009 (NSW) was invalid. Part 2 of the Act provided that the Commissioner of Police may apply to an eligible judge of the Supreme Court for a declaration that a particular organisation is a declared organisation for the purposes of the Act if satisfied that: Members of the organisation associate for the purpose of organising, facilitating, supporting, or engaging in serious criminal activity, and The organisation represents a risk to public safety and order in the State 3
Argued that this contravened the open court principle Held: act invalid. A court, which does not give reasons for, a final decision for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function, etc. Act is invalid as it undermines the open justice principle in a seemingly arbitrary fashion (minority). Act imposes no duty on the judge to provide reasons or grounds when deciding applications to make or revoke a declaration, and for that reason the Act is invalid (majority). Principle of a Fair Trial Spigelman, The Truth can Cost too Much: The principle of a fair trial (2004) It is desirable that the requirement of fairness be separately identified since it transcends the content of more particularised legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed In AUS there is no such right to a fair trial enshrined in any concrete or written constitutional sense. Instead it is a pple. In a principle base system, significance and weight to be given to fair trial considerations will vary from case to case, perhaps to a greater degree than a rights based system An inherent form of protection of procedural rights can be found in chapter II although, there is no clear majority decision to that effect Obligation to the pursuit of natural justice applies with particular force to judicial proceedings Trial procedure including the imposition of an onus of proof and the differentiation between civil and criminal proceedings reflects an understanding of what fairness requires in the particular circumstances Stead v State Government Insurance Commission (1986) 161 CLR 141 Action for negligence arising out of a motor accident. Issue was whether the plaintiff developed a neurotic condition from the accident. Whether the accident resulting from the defendant s negligence was the cause or a material factor contributing to the condition was a major issue expert evidence was relied on. Trial judge directed the plaintiff so as not to address the evidence given by expert in his closing argument, however when delivering his judgment, his Honour referred to that evidence. Appealed to SCSA, appeal was dismissed because the enquiry whether a miscarriage of justice has occurred involves asking whether the event said to cause a miscarriage could have made any difference to result. Appealed to HCA. Held: new trial. Not every departure from the rules of natural justice at trial will entitled aggrieved party to a new trial on appeal requires context/gravity etc. Where the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, 4
especially when the issue is whether the evidence of a witness should be accepted, it is certainly questionable whether the requirements of natural justice would ve led to a different outcome. It is necessary to establish that had the trial been properly conducted, a different result would ve been reached. Mastronardi v NSW [2007] NSWCA 54 Plaintiff was a prisoner at Silverwater, seriously assaulted in his cell by fellow prisoners and brought a case of negligence against the state. Gave evidence at trial that he had been assaulted, trial judge rejected his testimony. Appealed on the grounds that a substantial wrong or miscarriage had thereby been occasioned to allow for the ordering of a new trial pursuant to Supreme Court Rules Pt. 51 r 23 (UCPR r 51.53) Held: retrial. May be properly said that the Appellant did not have a fair trial according to law. The case lacked evidence of a hearing where the evidence given is to be given proper, genuine and realistic consideration in the decision subsequently to be made. Because the appellant did not have a trial untainted by material factual errors, he is entitled to a retrial. Appellant was unsuccessful in trial and the later appeal. The Crown as a Model Litigant NSW Model Litigant Policy for Civil Litigation Approved for adoption on 8 July 2008 The Obligation The State and its agencies must act as a model litigant in the conduct of litigation Nature of Obligation Must act promptly Must pay legitimate claims without litigation, including partial settlements, or interim payments Must act consistently Must endeavour to avoid litigation wherever possible Must keep costs to a minimum Must not take advantage of under-resourced claimants with a legitimate claim (oh sure, I bet the NEVER do this) Must not rely on technical defences unless the interests of the State or an agency would be prejudiced by the failure to comply with a particular requirement Must not undertake or pursue appeals unless reasonable prospects for success Must apologise where the state/their lawyers have acted wrongfully 5
Right to a Fair Trial Recognised in HR Legislation ICCPR Article 14 All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. Human Rights Act (2004) ACT s 21 21 Fair Trial (1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing. (2) However, the press and public may be excluded from all or part of a trial (a) To protect morals, public order or national security in a democratic society; or (b) If the interest of the private lives of the parties require the exclusion; or (c) If, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice. (3) But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public. Charter of Human Rights and Responsibilities Act 2006 (VIC) s 24 24 Fair hearing (1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. (2) Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter. Note to s. 24(2) substituted by No. 58/2013 s. 37. Note: See Part 5 of the Open Courts Act 2013. (3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits. 6
Civil Justice Review Human Rights Considerations VLC (2008) Some areas where there may be tension/conflict between procedural reform and human rights protections include: Limitations on expert evidence Limitations on publicly funded legal services Excessive court fees and charges Limitations on calling witnesses Limitations on time allowed for hearings/cross-examination Limitations on proceedings in public Compulsory referral to mediation/arbitration Cases where hearings are not held within a reasonable time Nature of the assistance required to be given to self-represented litigants Restrictions on the right to a final hearing, including provisions for striking out claims or defences Economic constraints on the right to a hearing, including security for costs Paper-based vs. oral processes Applications for adjournment Disclosure obligations and discovery Exclusion of evidence Requirements relating to proportionality Judicial appointment, tenure and bias Funding of civil system NSW Court System: An Overview Supreme Court NSW Highest Court in NSW operates under the Supreme Court Act 1970 (NSW) & the Civil Procedure Act 2005 (NSW) Unlimited civil jurisdiction and deals with the most serious criminal matters Common law division deals with civil, criminal and administrative law matters where more than $750,000 is claimed Equity division deals with cases involving commercial law, corporations law, equity, trusts, probate and matters pursuant to family law legislation Two appellate divisions: the Court of Appeal and the Court of Criminal Appeal Court of Appeal consists of judges who hear civil appeals Court of Criminal Appeal hears appeals arising from criminal matters from the Supreme Court, District Court, Land and Environment Court and some tribunals Appeal bench is usually three justices, full bench = 5 Industrial Relations Commission and Industrial Court of NSW Established under the Industrial Relations Act 1996 7
Deals with employment law and industrial relations Conciliates and arbitrates to resolve industrial disputes, sets conditions of employment, fixes wages and salaries by making industrial awards, approves enterprise agreements and decides claims of unfair dismissal Has an appellate jurisdiction Has a civil and criminal jurisdiction Judicial members of the Commission are the judges of the Industrial Court District Court of NSW Has jurisdiction in both civil and criminal matters Civil limit of $750,000 Unlimited jurisdiction in claims for damages and personal injuries arising from motor or work injury Local Court of NSW Two divisions: Small Claims and General Division Small Claims deals with claims up to the amount of $10,000 and General Claims deals between $10,000 and $100,000 $60,000 limit for personal injury or death claims Criminal summary prosecutions, committal hearings, mental health issues, some family law issues, children s criminal proceedings, juvenile prosecutions, licensing matters, coronial matters 8
Case Management Case management refers to the practice of the cts exercising control over the procedure and preparation for hearing. Case management emerged in response to delay and excessive costs which could arise when the litigation is left in the hands of the parties without judicial supervision. All NSW Civil Courts exercise the same court management rules as set out in the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW). Practice notes also form part of case management. Together these two acts make it very clear that since August 2005, the traditional version of the adversary system wherein the court had NO role to play in proceedings until the parties indicated that the case was prepared and ready for trial, no longer applies to civil litigation in NSW (Aon Risk Services Australia Limited v ANU (2009)). Justice Delayed is Justice Denied Prior to the introduction of the case management system many cases were allowed to take a long time before they were ready for hearing. In the 1980s, the judiciary began to focus on reducing both delays and costs, first in the Commercial Division of the NSWSC (1986). Since then, the judiciary have experience considerably expanded roles in the management of the administration of justice both in relation to the management of individual proceedings and the overall caseload of the court. Jackmara v Krakouer (1998) 195 CLR 516 Delays are a major source of unease within the cts. Delays threaten the administration of justice (e.g. memories fade, witnesses are harder to locate, documents get lost) but costs also increase (increased discovery, increased appearances). [D]elay will almost always impede the proper disposition of any case that does not come to trial promptly. (Gummow & Hayne JJ) Delay also interferes with justice in terms of richer = more legal proceedings available perpetrates the inequality. Also subjects plaintiffs to unnecessary stress, uncertainty and emotional turmoil. Backlog reduction was a key step in improving the times associated with proceedings. Spigelman identified a number of key measures that helped reduce the backlog: 1. An increase in the jurisdiction of the lower courts and the transfer of matters from the Supreme Court into the District Court where the cases did not possess the complexity or expertise required of the SC 9
2. Appointing additional judges as both fulltime and acting judges (now only done for retired judges b/c of potential judicial independence issues) 3. A considerable number of non-complex personal injury cases were disposed of by referring out to arbitrators to determine the disputes (now only employed to a limited extent) Blitzes are also utilised where a substantial number of judges sat at one time to hear hundreds of cases in a continual procession over a short time. Mini-blitzes are used on particular matters (e.g. Family Provision Act disputes regarding will provisions). Blitzes also involve: Listing similar cases together Greater pre-trial disclosure No adjournments policy Running list ADR encouraged (sometimes mandated) Delay is no longer a significant for civil justice in NSW. Now the focus of our attention has shifted to reducing costs, both the cost to the court and costs incurred by the parties. The essential requirements for the efficient and expeditious administration of justice are now well known: 1. A court must monitor and manage both its caseload and individual cases. 2. Management cannot be successful without judicial leadership and commitment. 3. Procedures must be clearly established in legislation, court rules and written practices. 4. Cases must be brought under court management soon after their commencement. 5. Different kinds of cases require different kinds of management. 6. The degree and intensity of management must be proportionate to what is in dispute and to the complexity of the matter. 7. The number of court appearances must be minimised. 8. Realistic but expeditious timetables must be set and, unless there is good reason, must be adhered to. 9. A key objective is to identify the issues really in dispute early in the proceedings. 10. Trial dates must be established as soon as practicable and must be definite, so as to ensure compliance with timetables. 11. Alternative dispute resolution should be encouraged and sometimes mandated. 12. Monitoring of the caseload must provide timely and comprehensive information to judges and court officers involved in management. Time standards may be useful in focussing the attention of all those involved. 13. Communication and consultation within the court and with others involved in the litigation process is an ongoing process. 10
Bi v Mourad [2010] NSWCA 17 Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act. It cannot always be done. (Allsop) The reforms that have taken place under the CPA and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. (Allsop) Costs Cost remains a key concern for the civil justice system as excessive costs can limit access to justice (e.g. cannot afford to commence litigation). Similarly, costs can be utilised as a tactical weapon. Case management is just one tool by which attempts to minimise the cost may be sought. Costs hamper access to justice b/c can t afford to commence litigation. Electronic filing/cts also can lead to EVERY document being filed cts blow up again. Electronic cts also have issue of transparency; can t read visual clues. Spigelman (2007): Costs: Case management is one tool by which attempts to minimise costs may be sought BUT it may also impose disproportionate and even unnecessary costs on the parties involved. May also prevent negotiation/settling naturally (i.e. being forced to go through various ct steps instead of just a discussion b/w representatives) Some matters may still not be able to be settled without litigation need to ensure to not add extra steps extra costs lose any savings Proportionality: Some sort of test of proportionality is required the cost of dispute resolution must in some manner be proportionate to what is in dispute. But what proportionality? Financial aspect is only part of it, what about emotional, cost to society etc. What is or should be justice? If forced into ADR, what if not the strongest person in the negotiation? S 60 of the Civil Procedures Act 2005 (NSW) requires that the practices and procedures of court should be implemented with a view to resolving disputes in such a way that the cost of the parties is proportionate to the importance and complexity of the subject-matter in dispute. Commercial Disputes: The cost & delay of the commercial litigation and corporate insolvency should be regarded as a drag on the economy (i.e. set money aside for litigation instead of investing in buildings/economy/construction/etc) 11
The longer a commercial dispute continues, or the longer a corporate liquidation continues, the greater the loss to the community in terms of dead capital. Litigation Costs ALRC (2011) Costs incurred during litigation are divided into 2 broad categories: Legal advice and assistance (fees payable by a litigant to his or her lawyer for legal services e.g. lawyer/barrister fees) Disbursements (payments made to a third party on behalf of the client by the legal practitioner as agents, and expenses incurred on behalf of the client e.g. expert testimony) Other costs that may be incurred and cannot be recovered via a costs order include personal time and resources litigants expend in instructing lawyers and attending the court and opportunity costs for not being able to attend work or other commitments due to involvement in litigation. Factors that impact on costs: The number of parties - $10,014 If the end of discovery was reached - $85,629 Number of experts used - $28,817 Number of court events (hearings) - $2,761 Use of alternative dispute resolution by the parties which on federal court figures had a high success rate for matters referred by a judge reduced the costs by $63,552.26. Rising costs of litigation The costs of litigation have been increasing for reasons such as: The rising costs of discovery procedures due to broader practices of electronic record keeping The recent implementation of case management procedures and their focus upon reducing delay in the court system Rising practitioners fees Taxation incentives for businesses to litigate, and the Rising cost of expert witnesses Increasing ct fees To addresses this, some steps have been taken e.g. personal injury claims have been capped at the lower of either 20% of the amount or sought to be recovered, or $10,000. Cts balance justice, quick and cheap so as to also balance justice to the community in terms of access to the cts for the community as a whole 12
Caseload Management Spigelman (2009): The principal driving force for case management is the acceptance of the fact that the delays in the system were too great. In NSW, delay is the time beyond which is reasonably required for the fair and just determination of the case. Unlike the US docket system, not all AUS judges are capable or willing to actively manage their lists. The objects of case management therefore are as follows: Just determination of proceedings (following from Queensland v JL Holdings) Efficient disposal of the business of the court Efficient use of available judicial and administrative resources. Timely disposal of the proceedings and all other proceedings in the court at an affordable cost for the parties CPA & UCPR The Civil Procedure Act (CPA) 2005 and the Uniform Civil Procedure Rules confirm, integrate and re-enact the powers of cts to confine a case to issues genuinely in dispute and to ensure compliance with court orders, directions, rules and practices. The rules are sufficiently flexible to allow application to all three levels of the cts. S 58 (2)(a) MUST consider s 56 and 57 (mandatory, may consider other aspects if needed) CPA contains some provisions moved from the Supreme Court Rules 1970 (NSW), The District Court Act 1973 (NSW) and the Local Courts (Civil Claims) Act 1970 (NSW). Section 56 (3) of the CPA provides that the parties have a statutory duty to assist the court to further this overriding purpose and accordingly, to participate in the processes of the court and to comply with directions and orders. A ct exercising any power is expected to give effect to the overriding purpose of section 56 and to ensure that they facilitate the process in a just, quick, and cheap manner to achieve a resolution. CPA also requires the practice and procedure of the court to be implemented with the objective of eliminating unnecessary delays in the court. In order to meet its overriding purpose, the cts are given a wide range of powers including: Power to direct parties to take specified steps and to comply with timetables and otherwise to conduct proceedings as directed, with respect to discovery, admissions, inspection of documents or property, pleadings, particulars, cross-claims, affidavits or statements, time place and mode of hearing. Powers with respect to the conduct of the hearing, including limiting the time that may be taken in cross-examination, limiting the number of witnesses, limiting the 13
number of documents that may be tendered, limiting the time that may be taken by a party in presenting its case or in making submissions. The exercise of such powers may identify certain matters required to be taken into account including the subject matter, complexity or simplicity of the case, the costs of the proceedings compared with the quantum of the subject matter in dispute and the efficient administration of court lists. Powers have also been conferred to direct a solicitor or barrister for a party to provide to his or her client a memorandum stating the estimated length of the trial and estimated costs of legal representation, including costs payable to the other party if the client was unsuccessful. Powers have also been conferred to order costs to be paid by a legal practitioner, where costs have been incurred by reason of some serious neglect in competence or impropriety. The Registrar of the Court manages cases and generally allocates hearing dates upon being satisfied of the state of readiness of an appeal. Cases that are likely to occupy more than two days of hearing time are referred to a judge for case management before a hearing date is allocated. The Registrar will also hear motions except in contested applications for a stay or injunction. The Registrar in Equity manages cases until they are ready for ready for hearing and lists them for hearing before the judges of the division. Matters are referred to associate judges and judges: If a motion is beyond the delegated authority of the registrar it is referred to an associate judge, Duty Judge or Corporations Judge If an associate judge has the power to deal with a matter and it is ready for hearing it is allocated to the associate judge call-over for a hearing date to be set If a timetable has been breached on three previous occasions the matter is referred to the Duty Judge If a matter has not been finalised after having been stood over on four or more occasions in order to allow the parties to have settlement discussions, the matter is referred to the Duty Judge Managerial Judging The focus of Caseflow management focuses on the overall caseload and seeks to distribute and direct cases through the system in an efficient manner. Managerial judging focuses on the role of the judge in individual cases, where the judge is required to tailor the procedures that need to be performed to the demands of the case. Managerial judging requires the judge to take an active role in directing the proceedings of the case throughout the interlocutory stages and as a result judges often take control of the case through a range of different directions and timetables. 14