Applying "Overriding Objectives" Of UK Civil Procedural Reforms In Australia

Article by Kym Fraser and Fiona Dea.

Originally published in May 2004

Key Points

• A consideration of the "overriding objectives" will involve assessing a number of factors pertinent to the case as a whole and the resources of the court in deciding what procedural orders should be made.
• These include whether the consequence of the order is proportionate to the case as a whole and if the application's real purpose is merely to delay and force an opponent to incur further legal costs.

In a recent decision in the Federal Court of Australia, Justice Finkelstein endorsed the principles encompassed in the "overriding objectives" of civil procedure introduced in 1998 in the United Kingdom under the Woolf Reforms. ¹ Justice Finkelstein indicated that these objectives should be adhered to by the Federal Court in regulating its own processes and the conduct of parties leading to trial of the action, to ensure cases are dealt with justly and cost effectively.

In Fieldturf Inc v Balsam Pacific Pty Ltd [2003] FCA 809, Justice Finkelstein made reference to the "overriding objectives" underlying the UK civil procedural reforms in considering an interlocutory application for an order that the respondent state what aspects of the applicant's claim it admitted. Fieldturf involved the applicant suing the respondent for infringing a patent for a synthetic grass surface for sports playing fields. According to the applicant's principal claim, the synthetic grass over which its patent was granted had five defining technical elements, including a specified distance between parallel rows of synthetic ribbons.

In response to the applicant's pleading of the patented invention (which specified in detail the five technical elements), the respondent gave a "do not admit plea". In effect, if that pleading were to stand at trial, the applicant would be required to prove to the court's satisfaction each of the five technical elements of the invention. So as to understand what the respondent's case was in relation to the claimed invention, the applicant sought further particulars of the "do not admit plea".

Although Justice Finkelstein noted that "on a strict view of the Rules these particulars need not be provided", he ordered, having regard to the principles underlying the "overriding objectives", the respondent to spell out in full its case in relation to each of the five technical elements of the applicant's claimed patent, so that the issues in dispute were clearly defined and to identify what facts were conceded so as to avoid unnecessary proof. This would significantly reduce the scope of discovery and limit the evidence at trial. Therefore the requirement that the respondent give further particulars of its "do not admit plea" clearly satisfied the objectives that the expense of the trial be minimised; that the case be dealt with expeditiously; and that the cost of requiring the respondent to provide particulars was proportionate to the case as a whole, having regard to the cost and time savings that would be achieved by clearly identifying the real issues in dispute between the parties.

In so finding, Justice Finkelstein noted that the principles underpinning the "overriding objectives" could be achieved by the Federal Court utilising its inherent power to control proceedings before it and make any directions it thinks proper.

The "overriding objectives" were similarly cited, endorsed and applied by Justice Einstein in the New South Wales Supreme Court in the long running and fiercely fought Idoport Pty Ltd v National Australia Bank Ltd litigation (2000) 49 NSWLR 51. In that case, he was considering an application by one of the parties for the trial of the matter to be conducted electronically. In making an order that the trial of the matter be so conducted (which also required the parties to exchange discovered documents, witness statements and exhibits in electronic form), Justice Einstein had particular regard to the estimated cost savings of an electronic trial (in circumstances where there were approximately 140 witness statements, 60,000 pages of exhibits and 60,000 additional discovered documents) compared to a paper trial; savings to the length of the trial by conducting the trial electronically; and the proportionate additional cost of having an electronic trial compared to the damages claimed in the trial.

These cases are reflective of Australian courts taking an increasingly active role in the conduct of proceedings through the interlocutory stages.

They demonstrate that when considering whether to make procedural orders during the early stages of a matter, the courts will consider a number of factors in addition to the specific merits of the application having regard to the constituent elements of the Rules of Court by which the application is brought. In particular, the following factors may influence the court in deciding whether to make the procedural order sought:

• the costs consequences of any order (in terms of the imposition of costs on a party required to comply with the order)
• whether the order would lead to a narrowing of the issues in dispute
• a time-saving in the ultimate conduct of the trial; and
• whether the cost consequences of making the order are proportionate to the case as a whole.

Accordingly, litigants who make application for interlocutory orders must not only have persuasive grounds for such orders having regard to the constituent elements of the Rules of Court, but they are also increasingly likely to be required to demonstrate that the making of such an order satisfies the "overriding objective" principles that are expressly embodied in the UK Civil Procedural reforms.

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