Australia: New Emphasis on Case Management in the Federal Court

Public law report
Last Updated: 5 April 2010
Article by Carolyn Dearing

Consistent with the High Court's decision in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) (Act) amends the Federal Court of Australia Act 1976 (Cth) (FCA Act) to strengthen and clarify the case management powers of the Federal Court to ensure more efficient civil litigation. The Act also streamlines certain appeal paths for civil proceedings and clarifies the powers of judicial officers of prescribed federal courts.

The key objectives of this amendment are to:

  • effect cultural change in the conduct of litigation so that, at the same time as resolving disputes justly, courts will place the resolving of disputes as quickly and cheaply as possible at the forefront of their considerations
  • focus courts, the parties and their lawyers' attention on resolving disputes as quickly and cheaply as possible
  • reduce litigation costs
  • allocate resources in proportion to the complexity of the issues in dispute
  • avoid unnecessary delays, and
  • manage judicial and administrative resources as efficiently as possible.

The need for the amendments has arisen as a result of some recent, large scale civil litigation, such as the C7 litigation (7 Network Limited v News Limited [2007] FCA 1062) and the Bell Group litigation (Bell Group Limited (in liquidation) v Westpac Banking Corporation [No 9] [2008] WASC 239). These cases have highlighted the need for courts to have greater powers to ensure that the use of public resources is proportionate to the issues in dispute. On 3 November 2009, the State Revenue Legislation Amendment (Defence Force Concessions) Act 2009 (NSW) (Act) was enacted. The Act will expand the criteria for NSW First Home Owner Grants to assist Australian Defence Force (ADF) personnel to qualify for the grant by, in particular, removing the residency requirement that the applicant reside in the house for a continual period of six months commencing within one year of the purchase or completion of the construction of the house.

The amendments contained in the Act also introduce an overarching obligation on the court, the parties to the proceedings and legal practitioners to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The legislation also specifies the kinds of directions the court can make to control the progress and conduct of proceedings, and provides clear direction and support to judges to use active case management powers.

As part of the case management amendments contained in the Act, alternative dispute resolution processes for resolving disputes that do not involve judicial power, such as conciliation, neutral evaluation or case appraisal, have been included. The Act inserts a new section 37M in the FCA Act which intends to overcome restrictive interpretations by the courts of what is in the interests of justice following the High Court's decision in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. New section 37M(2) of the FCA Act outlines the objectives of these provisions, including the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. This provision is clearly aimed at the perceived abuse of court resources arising from litigation. In essence, the intention is to bring about a cultural change in the conduct of litigation so that courts and the parties are focused on resolving disputes as quickly and cheaply as possible.

The Act includes a new power to impose cost orders on legal practitioners in circumstances where there has been a breach of the duty to act consistently with the overarching purpose of the legislation, as well as cost orders for failing to comply with directions. For example, parties may need assistance from their lawyers to act consistently with the new duties imposed upon them and where a legal practitioner fails to assist their client, the practitioner may be held personally liable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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