Chapter 5
Measures to reduce the length and complexity of litigation and improve
efficiency
5.1
Submissions and evidence addressing term of reference (d) universally
agreed that reducing the length and complexity of litigation and improving
efficiency within the judicial system would increase access to justice.
Submissions and evidence therefore endorsed measures aimed at accomplishing
these objectives.
5.2
In particular, this chapter discusses measures relating to:
5.3
The committee acknowledges the important role of extra‑judicial
measures to reduce the length and complexity of litigation and improve judicial
efficiency. These measures are discussed in Chapter 6.
Measures in civil law litigation
5.4
Litigation can involve considerable time and expense, factors well
illustrated by the recent phenomenon of mega‑litigation. However, people
with limited financial resources cannot afford lengthy, complex and inefficient
litigation. For this reason, some targeted measures have been considered or
introduced in civil law litigation, for example, litigation funding and case
management.
Litigation funding
5.5
In its report Costs Shifting: Who pays for litigation?, the
Australian Law Reform Commission stated:
Cost is a critical element in access to justice. It is a
fundamental barrier to those wishing to pursue litigation. For people caught up
in the legal system it can become an intolerable burden.[1]
5.6
Litigation funding is one means of reducing the cost of civil
litigation, and a potential means of improving access to justice for some
members of the Australian community.[2]
The Law Council of Australia (Law Council) submitted that civil litigation
funding has been endorsed for this purpose in certain circumstances. It argued:
There is public interest in a robust litigation funding
market where sufficient capital is available to underwrite the risks associated
with large group claims. These benefits could extend, for example, to people
injured in major industrial accidents or mass latent injury claims against
corporations or other entities, where there is evidence of negligence or
recklessness as to employee or community safety.[3]
5.7
However, the committee received no further evidence regarding civil
litigation funding and is therefore not able to draw any conclusions.[4]
Case management
5.8
Another measure to reduce the length and complexity of civil litigation
and improve judicial efficiency is case management. This option is currently
being explored and implemented by both the Australian Government and the courts.
5.9
On 18 and 19 November 2009, the Access to Justice (Civil Litigation
Reforms) Amendment Bill 2009 (Bill) passed the House of Representatives
and Senate, respectively. It is currently awaiting Royal Assent.
5.10
One of the Bill's aims is to strengthen and clarify the case management
powers of the Federal Court of Australia (Federal Court), ensuring more
efficient and thus less costly civil litigation.[5]
This builds on changes to be effected by the Federal Justice System Amendment
(Efficiency Measures) Bill (No. 1) 2008. As at the date of writing, this bill
is awaiting Royal Assent.
5.11
The Attorney‑General's Department (department) told the committee
that the Strategic Framework for Access to Justice in the Federal Civil
Justice System aims to simplify and focus court procedures on the
resolution of disputes:
We know that most matters do not go to final judicial
determination as the outcome. One way or another matters drop out. But most of
the court rules and procedures pretend you are preparing for a judge to hear
the matter. All of those things impose costs, distress, time and expense, so we
proposed that as a general issue court procedures should be directed to
resolving the issue. We had a big attraction to procedures being directed to
alternative dispute resolution, simplifying the issues and making it much more
accessible on that front.[6]
5.12
In addition to legislative reform, the Federal Court has independently
instituted measures aimed at reducing the cost of proceedings, including: active
case management; the allocation of cases to individual dockets; and a
comprehensive program of court‑annexed mediation and other forms of
assisted dispute resolution.[7]
5.13
In particular, the Federal Court has introduced a range of case
management initiatives directed toward reducing the length and complexity of
litigation. The initiatives focus upon early judicial involvement in the
identification of real issues in dispute, and careful management of discovery
and other procedural matters.
5.14
By way of example, the Federal Court submission cited two recent
initiatives: Practice Note No. 30 – Fast Track Directions; and Practice Note
No. 17 – The Use of Technology in the Management of Discovery and the Conduct
of Litigation:
-
the first provides a framework in which cases may be heard and
finalised within five to eight months from the date of filing, and to reduce
costs by initiating discovery and avoiding lengthy interlocutory disputes; and
-
the second encourages and facilitates the effective use of
technology in the conduct of proceedings before the court, and recommends a
framework for the electronic management of documents in the discovery process
and the conduct of trials.[8]
5.15
Submissions endorsed the Federal Court's existing case management powers
and welcomed proposals contained within the Bill.[9]
Measures in family law litigation
5.16
The Family Court of Australia (FCA) has been at the forefront of
measures to reduce the length and complexity of litigation, developing and
implementing processes designed to minimise costs to family law litigants. The
most significant of these initiatives are contained in the Family Law Rules
2004 (Rules).[10]
5.17
Submissions briefly described some of the FCA's initiatives, including:
pre‑action procedures and family dispute resolution (FDR); single expert
rules; the less adversarial trial; and the docket system.
Pre‑action procedures and
family dispute resolution
5.18
Rule 1.05 requires each prospective party to family law litigation (with
some exceptions) to comply with 'pre‑action procedures' prior to
commencing an action. These procedures are set out in Schedule 1 of the Rules.[11]
5.19
The Australian Lawyers Alliance submitted that:
In many cases, creating obligations for 'pre‑action
procedures' has been a positive step that has allowed many matters to resolve
without recourse to litigation.[12]
5.20
The 'pre‑action procedures' established by the Rules apply to
financial disputes, whereas section 60I of the Family Law Act 1975
requires parties to a parenting dispute to undertake FDR or obtain a court‑ordered
exemption from that requirement before issuing legal proceedings.[13]
5.21
The Attorney‑General recently released the Family Dispute
Resolution Services in Legal Aid Commissions evaluation report. This report
highlighted the cost‑effectiveness of FDR services in Legal Aid
Commissions, finding that for every $1 invested, approximately $1.48 is saved
in court time and related costs:
FDR is effective in reducing cost and time to individuals and
government by providing an appropriate alternative to litigation. FDR is also
effective in achieving other outcomes such as narrowing of issues in dispute,
participatory negotiated agreement making for disadvantaged individuals, and
ensuring agreements are child focussed.[14]
5.22
The Attorney-General commended the report's findings, stating:
FDR services provide families who would not otherwise be
able to afford legal assistance with access to a timely, less adversarial and
low cost option for resolving their legal disputes.[15]
5.23
The Women's Legal Centre (ACT and Region) cautioned however that it is
imperative for women to have the option of accessing legal advice prior to
participating in FDR, as women are then better placed in negotiations for
parenting plans or consent orders.[16]
Single expert rules
5.24
Part 15.5 of the FCA Rules concerns the use of expert evidence. According
to the family law courts, these rules are highly successful and widely considered
to overcome some significant issues that have arisen historically in the consideration
of expert evidence, for example: potential partisanship and lack of objectivity;
experts exceeding their areas of expertise; lack of clarity in expert evidence;
cost and delay.[17]
The less adversarial trial
5.25
The FCA conducts children’s cases as Less Adversarial Trials (LAT), an
approach which is flexible, comparatively quicker and cheaper, inclusive and
less formal than the traditional common law (adversarial) approach.[18]
5.26
The National Alternative Dispute Resolution Advisory Council recognised
the benefits of the LAT approach shortly after its introduction:
A formal two‑part evaluation was undertaken of the
pilot program that led to the Less Adversarial Trial. Those evaluations were
supportive of the initiative. The final evaluation found that it resulted in a
faster court process, that the parties were generally more satisfied with the
process than parties whose dispute were determined using a traditional
adversarial approach and that it has the potential to encourage a more
cooperative approach between the parties (in this case usually separated or
divorced parents).[19]
The docket system
5.27
The FCA and the Federal Magistrates Court (FMC) allocate and manage
cases through a judicial docket, meaning that one judge or federal magistrate
handles each case from commencement to disposition. The judicial docket is designed
to dispose of cases in the most efficient manner possible by ensuring early
judicial intervention and active judicial case management.[20]
5.28
As indicated, the federal courts are currently considering, introducing
or expanding, to various degrees, measures to reduce the length, complexity and
cost of litigation, and increase judicial efficiency. These measures are intended
to enhance access to justice.
5.29
Evidence presented to the committee did not encompass measures at the
state/territory level, and the committee cannot draw any conclusions about
practice and procedure in those jurisdictions.
5.30
Nonetheless, the committee regards access to justice as an issue which transcends
jurisdiction, and encourages all courts to implement measures to reduce the length
and complexity of litigation, and improve judicial efficiency. By implementing
such measures, more Australians should be better able to afford to access the
courts and the justice it metes out. The committee acknowledges that such
measures do not act in isolation but in conjunction with a myriad of factors
comprising and effecting access to justice.
Measures relating to self‑represented litigants
5.31
As indicated in Chapter 2, not everyone is able to access legal
representation, with self‑represented litigants appearing before the courts
for a number of reasons, for example: inability to afford legal representation;
a lack of awareness of, or inability to access, publicly funded legal services;
geographic considerations; physical or mental disability; and by choice.
5.32
In 2003‑04, the committee comprehensively examined the issue of
self‑represented litigants,[21]
and submissions to this inquiry continued to refer to the 'well‑documented
difficulties and costs associated with the swelling pool of unrepresented
litigants.'[22]
The 'swelling pool' of self‑represented
litigants
5.33
In 2004, His Honour Justice Murray Wilcox believed the number of self‑represented
litigants to exceed 50 per cent in some courts,[23]
and two years later, Her Honour Chief Justice Diana Bryant wrote:
It is beyond doubt that the numbers of self‑represented
litigants in the Family Court has markedly increased in the last ten years.
Cuts to the legal aid budget for family law, the cost of legal services, the
introduction of simplified procedures to reduce complexity and cost, changes to
the substantive law in the area of children’s cases, the rise of the father’s
rights movement and the perception that family law is not ‘real’ law such that
the services of a lawyer are not required have all been identified as factors
contributing to this increase.[24]
5.34
In 2007, the FCA reported that in 27 per cent of its cases at least one
party was self‑represented.[25]
The most recent statistics from the FMC – 2008-09 – indicate that in 9.8 per
cent of its family law cases neither party had legal representation and in 26.7
per cent of cases at least one party was self‑represented.[26]
Impact of self‑representation
on court resources
5.35
In addition to the high proportion of self‑represented litigants,
the family law courts testified that family law matters are becoming
increasingly complex and lengthier. Her Honour Chief Justice Diana Bryant
attributed this to commingled issues, such as: serious abuse allegations;
serious conflict; mental health issues; drug addiction issues; and serious
family violence.[27]
5.36
The FMC provided the committee with recent data illustrating the length
of time taken to finalise family law applications, compared with general law
applications for the same period. Most family law applications are finalised
within three months of filing, and most general law applications are finalised
within three to six months of filing.
Figure 5.1 – Applications in the Federal Magistrates Court: Finalisation
Timelines: 2007-09
Source: Federal
Magistrates Court, Answer to Question on Notice (7 August 2009) pp 2-3.
5.37
The committee notes that the FMC and other available data do not
specifically identify self‑represented litigants within court systems,
making it difficult to determine the extent of and trends in self‑representation,
as well as the impact of self‑represented litigants on court users,
courts and their resources.
5.38
The committee therefore endorses Recommendations 53 and 54 from its 2004
Report (now labelled Recommendations 16 and 17), noting also Recommendation 56.
Recommendation 16
5.39
The committee recommends that the federal, state and territory governments
commission research to quantify the economic effects that self‑represented
litigants have on the Australian justice system, including court, tribunal,
other litigant, legal aid system and social welfare system costs.
Recommendation 17
5.40
The committee recommends that the federal courts and tribunals should
report publicly on the numbers of self‑represented litigants and their
matter types, and urges state and territory courts to do likewise.
Effect of self‑representation
on access to justice
5.41
In 1998, the committee's Inquiry into the Legal Aid System (Third
Report) considered that the percentage of self‑represented litigants
and changes in this percentage over time can be used as indicators of how well
the legal aid system is operating.[28]
5.42
Although there is a lack of empirical data, submissions argued that the
legal aid system is under‑performing and contributing to the high
proportion of self‑represented litigants who do not always fare well in
legal proceedings.[29]
5.43
In particular, the FCA and FMC argued that legal aid is instrumental to
facilitating access to justice.[30]
The Litigants in Person in the Family Court of Australia report, for
example, found that 63 per cent of judges, judicial registrars and registrars interviewed
considered an unrepresented party disadvantaged by the lack of legal
representation: only 31 per cent of self‑represented litigants were
considered to have participated competently in the proceedings.[31]
5.44
Liberty Victoria agreed, submitting:
Anecdotally, most lawyers have encountered members of the
public who have not been able to afford legal representation, who have not been
eligible for legal aid, and whose encounter with the system has left them feeling
as though they have not had justice. Often enough, their perception that they
did not get a just result is accurate...It is not uncommon to see wrong results
achieved when one party is unrepresented.[32]
5.45
The problem identified by the NSW Young Lawyers was that the justice
system assumes equality of resources, and an understanding of
complex areas of law, practice and procedure. In many instances, individuals,
and particularly disadvantaged people, cannot engage with the justice system on
a level playing field, requiring:
...measures to reduce unnecessary complexities, encouragement
of alternative means of resolving disputes, a greater recognition of the
imbalance between a litigant against the state or business, more effective case
management and better funding of community legal service.[33]
5.46
As noted earlier in this chapter, some of these measures are already
being enacted for the benefit of all court users. However, submissions
suggested that additional targeted measures should be considered, introduced and
expanded for the specific benefit of self‑represented litigants whose
lack of knowledge and/or experience inhibits their access to justice.
Specific measures to assist
self-represented litigants
5.47
Submissions described some of the measures currently assisting self‑represented
litigants, and suggested certain reforms, including: expansion of duty solicitor
schemes; expansion of the Self‑Represented Litigants' Co‑ordinator role;
development and provision of further written information; and prompt access to
legal advice.
Expansion of duty solicitor schemes
5.48
Throughout Australia, most courts have a duty solicitor scheme where
people without having received legal advice or legal representation can seek
some basic advice from a solicitor prior to appearing in court.
5.49
Previous reviews have found that the duty solicitor schemes coordinated
by courts, legal aid bodies, professional associations and groups of local solicitors
are of enormous assistance to self‑represented litigants.
5.50
Duty solicitors typically: provide initial advice; identify cases which
may be eligible for legal aid; refer matters to another solicitor; explain
proceedings; resolve problems with inadequate pleadings and the preparation of
evidence; and reduce self‑represented litigants stress and anxiety.
5.51
However, duty solicitors rarely have the resources to represent
individuals in court, and duty solicitor schemes cannot assist all self‑represented
litigants. Assistance is often restricted to those individuals who are likely
to be imprisoned if convicted (that is, serious criminal matters). The problem
is exacerbated in rural, regional and remote (RRR) areas where there are
shortages of legal practitioners.
5.52
The Public Interest Law Clearing House (PILCH) submitted that duty
solicitor schemes should be expanded, arguing that expansion would assist self‑represented
litigants to access justice and improve the operation of the judicial system.[34]
The National Pro Bono Resource Centre agreed but called for public funding of
the schemes in areas of identified legal need:
Where there is a real identified need for duty lawyer schemes
(an indicator for which would be a large number of unrepresented litigants) the
need should be met by publicly funding regular schemes rather than relying on
the goodwill, availability and capacity of the private profession to provide
the service pro bono.[35]
5.53
In sharp contrast, while acknowledging the valuable function performed by
duty solicitor schemes, the NSW Young Lawyers, Human Rights Committee suggested
that their role be limited on practical and qualitative grounds:
Duty solicitors are extremely busy, and a five minute advice
session in the rushed and stressful surrounds of a bustling court is no
substitute for proper, considered legal advice and where appropriate, professional
representation from a well-prepared practitioner.[36]
5.54
In view of this evidence, the committee endorses part Recommendation 57
of its 2004 Report (now labelled Recommendation 18) with the proviso that the
duty solicitor schemes be established in areas of high need.
Recommendation 18
5.55
The committee recommends that the federal, state and territory
governments jointly fund and establish a comprehensive duty solicitor scheme in
identified high need areas throughout Australia with a view to reducing the length
of litigation and increasing judicial efficiency in self‑represented
matters.
Expansion of the Self‑Represented
Litigants' Coordinator role
5.56
In Victoria, various courts have introduced the role of a Self‑Represented
Litigants' Co‑ordinator:
-
in the Court of Appeal, the Self‑Represented Litigants’ Co‑ordinator
acts as a contact point, explaining procedures and helping manage the
expectations of self‑represented litigants; and
-
in the Supreme Court, the Self‑Represented Litigants' Co‑ordinator
provides procedural and practical advice, assists with the completion of court
forms and documents, liaises with court staff to expedite proceedings, maintains
statistics, monitors best practice in other jurisdictions, and refers self‑represented
litigants to appropriate legal aid service providers.
5.57
PILCH submitted that the Victorian Supreme Court model provides
important and necessary assistance to self‑represented litigants, as well
as ensuring the more efficient administration of justice. It argued that a
similar initiative should be funded in Victoria on an on‑going basis and
implemented in other courts across Australia.[37]
Development and provision of
written information
5.58
In 2000, judges, judicial registrars and registrars reported that self‑represented
litigants frequently fail to understand the procedures and legal requirements
of the court.[38]
As a result, self‑represented litigants often file wrong or incorrectly
completed court documents, and adopt approaches that not only impede the
efficient conduct of court proceedings but have the potential to adversely
affect the proceedings.
5.59
PILCH submitted that the development of written and online material,
including self‑help kits is an effective method of assisting self‑represented
litigants. It recommended:
-
the development and implementation of materials aimed at
improving self‑represented litigants' effective participation in the court
system; and
-
the exploration of available models and other technological
solutions to improve access to services for self represented litigants.[39]
5.60
The committee notes that, in New South Wales at least, there is a wide
variety of self‑help material available in a variety of formats and
across a number of legal areas.[40]
However, this material does not appear to address practice and procedural
issues.
Recommendation 19
5.61
The committee recommends that judicial and court officers receive
training in relation to assisting self‑represented litigants.
5.62
The committee agrees in principle with Recommendation 55 of its 2004
Report and urges federal, state and territory courts and tribunals to consider,
develop and implement user-friendly practice and procedural guidelines for use
within their specific jurisdictions with a view to promoting the efficiency of
self‑represented litigation.
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