House of Representatives Speech- Access to Justice (Civil Litigation Reforms) Amendment Bill 2009

Access to justice is important. We need our courts to be able to provide real, affordable access to all citizens, not just pay lip-service to it. The legislation which governs federal courts needs to encourage and assist real, affordable access. The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 goes a long way to achieving those aims and for that reason I am very pleased to support this legislation. This bill will amend the Federal Court of Australia Act 1976, the Family Law Act 1975 and the Federal Magistrates Act 1999, which are the acts of this parliament that establish the three federal courts: the Federal Court, the Family Court and the Federal Magistrates Court.

Access to justice is important. We need our courts to be able to provide real, affordable access to all citizens, not just pay lip-service to it. The legislation which governs federal courts needs to encourage and assist real, affordable access. The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 goes a long way to achieving those aims and for that reason I am very pleased to support this legislation. This bill will amend the Federal Court of Australia Act 1976, the Family Law Act 1975 and the Federal Magistrates Act 1999, which are the acts of this parliament that establish the three federal courts: the Federal Court, the Family Court and the Federal Magistrates Court.

This bill is consistent with a very considered program that the Rudd government has undertaken and that the Attorney-General has prosecuted that is directed at reform of our court system and reform of procedures within our court system, all directed to ensure that all citizens have as full access as possible and that all citizens have access which is affordable, and that public resources are not devoted in a disproportionate way to the resolution of disputes. It is consistent with the approach that the government has announced already in relation to the abolition of the Federal Magistrates Court, a matter which has already been reported on and which a number of other speakers on this legislation have commented on, and is still a work in progress. The purpose of course of abolishing the Federal Magistrates Court is to achieve an overall federal court restructure that the government believes will reduce litigation costs and facilitate faster resolution of disputes.

What this bill does is to insert, first of all, in the Federal Court of Australia Act some provisions which will improve the authority of federal judges to case manage litigation that is in the civil jurisdiction of the court. Case management is itself a relatively new term. It is intended to convey the notion that no longer should we allow civil disputes to be entirely managed by the parties to those disputes and their lawyers so that the rules of court are simply there to be used and manipulated in a way which the parties think suits their interests, without limit, without regard to cost and—as was the traditional view—without direct interference or direct control by any judge. Case management takes issue with that traditional approach and says that judges of the court, and magistrates in the Federal Magistrates Court, are entitled to, and indeed should, in the public interest manage litigation coming before the court so as to ensure that the resolution of disputes is achieved within the shortest possible time and with the least possible cost—and by cost I mean not only cost to the parties but cost to the public purse.

It has been thought, ever since the decision of the High Court in the State of Queensland v JL Holdings, that the interests of justice being the touchstone of civil litigation in our courts were a reason for limiting the power of judges to engage in case management. I note, as have other speakers on this bill, that one of the intents of these amendments is to ensure that that decision of the High Court is not able to be raised, as it has been since the decision was handed down in 1997, as a bar to judges engaging in vigorous case management, to judges seeking to shape and control the way in which disputes are conducted in their courts.

I note that the Law Council of Australia, the peak body for Australia’s lawyers, has provided a submission to the Senate Legal and Constitutional Affairs Legislation Committee directed at this access to justice bill. In it, the Law Council has broadly welcomed the reforms. It is worth quoting from the submission because the Law Council of Australia represents all of Australia’s lawyers. It is the peak body for Australia’s lawyers and represents over 50,000 lawyers across the country. It is in a position to provide perhaps as informed a comment as it is possible to provide in relation to legislation such as this. The Law Council’s submission said:

The Law Council broadly welcomes the reforms which are the subject of the Bill. It is clearly an attempt by the government to encourage more efficient and cost effective civil litigation, and that is a laudable and non-contentious aim.

The submission goes on to say:

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.

I will pause there to say that what the Law Council is saying in its submission is correct. If litigation becomes so expensive in terms of time, resources, fees paid to lawyers, fees paid to courts or fees and costs that are incurred in paying all of the other many people who are involved in protracted litigation, if that becomes prohibitive, then we will have a situation where there is indeed a denial of access to citizens. Some have mentioned in their speeches on this bill a notorious case, the C7 litigation. Others have mentioned the Bell case. I could mention a range of very, very lengthy commercial proceedings that have unfolded in recent years in the Federal Court and state supreme courts. Certainly, the supreme courts in Western Australia, New South Wales and Queensland, as well as the Federal Court, have seen trials—some of which I have participated in, I have to say—that have gone on for many months. They occupy dozens of court days—sometimes over 100 court days—and many lawyers, with consequent great expense. One has to ask, when one looks at litigation of that scale, whether it is even remotely affordable to ordinary citizens and whether the higher courts of this country have become, for the purposes of civil litigation, the preserve of the rich, large corporations and governments, which is not the kind of access to justice that anyone would wish to see.

I will quote again from the Law Council’s submission because it does very much commend the thrust of this legislation. The Law Council said:

The Law Council recognises that the traditional system of adversarial justice, in which pre-trial procedures are left entirely in the hands of the parties, is no longer considered an efficient model of dispute resolution. It is now well accepted that courts and judges have a role in actively participating in and managing this process. Yet there remain a minority of cases in which litigants may attempt to exploit the procedures available to them, such as discovery, to achieve an advantage regardless of cost or proportionality. Case management procedures, ADR—

alternative dispute resolution—

and other proposals all have … a role to play in improving the efficiency of litigation.

In referring to ‘a minority of cases’, the Law Council is really talking about the cases that we have all seen in recent years where litigation is almost used as a tool of commerce, rather than as a true dispute resolution mechanism, and where resort to the higher courts is used as a club in the jungle of commerce in Australia. That is of course not an appropriate use of the court system.

There is a passage in the judgment of the majority in the State of Queensland v JL Holdings case, which I mentioned a moment ago, that is most often cited when people raise the case in courts as a basis for resisting the involvement of a judge in serious case management. This is the passage from the judgment of 1997:

Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.

That kind of statement of principle, if taken to its ultimate conclusion, leads to judges being deprived of the opportunity of imposing what might perhaps be seen as arbitrary limits or what might perhaps be seen as a strict control on litigation. Judges are deprived of the ability to manage in that way. There does come a point at which the pursuit of some ideal of justice at all costs—and I mean justice at all costs—has to be the subject of some limits. I appreciate that this probably raises some quite deep philosophical questions about where the court system should strike a balance. But what this legislation does is empower judges to resist the suggestion that court procedures are entirely in the hands of the parties and empower judges to impose control on the conduct of litigation in their courts.

It is probably worth mentioning by way of example that, of the reforms that have been introduced in the last two or three decades in Australia in the higher courts, one of the most important has been the introduction of court ordered mediation, which is a form of alternative dispute resolution—there are others. Mediation, in a traditional sense, has always been thought to be a form of dispute resolution which only works on a consensual basis. In other words, if the parties are not both or all willing to engage in a mediation process then it is a process which is not likely to succeed. For that reason, it was long thought that a process which required the parties to attend mediation because a judge ordered them to attend was a process that was not likely to achieve effective results. The experience since the introduction of court ordered mediation, which is now employed as a matter of course in all higher courts—the Federal Court, the state Supreme Courts and the Family Court—has been that, far from not producing satisfactory outcomes, in the majority of cases where mediation is ordered settlements are produced, and they are settlements which are satisfactory to the parties.

It is the embrace of alternative dispute resolution processes in the last two or three decades that is in part recognised by this legislation, which will, as I have said already, empower judges to direct litigation in their courts. It will empower judges to set deadlines, to require tasks to be completed, to vary directions that have previously been made and to refer cases to a range of alternative dispute resolution processes—all of which ought to be within the power of judges and all of which ought to be able to be exercised without being met by a complaint that in some way a judge exercising that kind of case management power is not in the interests of justice.

There are a range of other reforms introduced in this legislation. Another reform is to limit the interruption of civil cases that can occur by appeals against interlocutory orders made by judges. There are some provisions in this bill which will ensure that the opportunity to interrupt the flow of civil litigation by appealing against an interlocutory order is a great deal more limited than it has been in the past.

The legislation contains a range of incremental reforms. Whether or not the reforms are going to lead, as hoped, to more real and affordable access for citizens to federal courts—the Federal Court of Australia, the Family Court and the Federal Magistrates Court—is something that will need to be judged over time. Simply changing court procedures, empowering judges and changing rules that apply to litigation in the superior courts is not of itself something that can be seen to immediately produce the increased access to justice which is the intended result. But I am confident that over time the reforms which are contained in this bill will greatly improve access to justice in matters that are within the jurisdiction of the three federal courts—one of which, it is hoped, will soon go out of existence. But these reforms will improve access to justice in the federal courts. They will be able to be judged over time and indeed should be re-examined, perhaps in a few years, to ensure that the intent of the reforms has in fact been achieved. I commend the bill to the House.