Chapter 2
Overview of the Bill
2.1
This chapter briefly outlines the main provisions of the Access to
Justice (Civil Litigation Reforms) Amendment Bill 2009 (Bill), being amendments
to the Federal Court of Australia Act 1976, Family Law Act 1975
and the Federal Magistrates Act 1999 in respect of:
- case management;
- jurisdiction and appeals; and
- judicial responsibilities.
Case management
2.2
The Bill will make changes to the Federal Court of Australia Act 1976
(Act), amending Part III Division 1 (Original Jurisdiction) and Part VI
(General), and inserting new Part VB (Case management in civil proceedings),
to strengthen and clarify the case management powers of the Federal Court
of Australia (Federal Court).
2.3
The Explanatory Memorandum states that these amendments are aimed at
ensuring the proportionate use of public resources in civil proceedings,
thereby providing access to justice (defined as the quick, efficient and fair
resolution of civil disputes) for all court users.[1]
Original jurisdiction
2.4
Proposed section 20A will give the Federal Court the power to deal with
civil matters without an oral hearing (either with or without the consent of
the parties) when exercising its original jurisdiction and if satisfied that:
- the matter is frivolous or vexatious; or
- the issue or issues on which determination of the matter depends
have been decided authoritatively in the case law; or
- determination of the matter would not be significantly aided by
an oral hearing because:
- there is no real issue of fact relevant to determination of the
matter; and
- the legal arguments in relation to the matter can be dealt with
adequately by written submissions.[2]
2.5
The Explanatory Memorandum states that this provision will allow the Federal
Court to deal with matters 'on the papers' where this will lead to just
resolution of a dispute by the quickest, least expensive and most efficient
method, consistent with proposed section 37M, which creates an overarching purpose.[3]
Case management in civil
proceedings
2.6
Schedule 1 Item 6 of the Bill will create new Part VB, dealing with case
management in civil proceedings. Its central provision will be proposed section
37M:
(1) The overarching purpose of the civil practice and
procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.[4]
2.7
The inclusive objectives of the overarching purpose are set out in the
Bill:
- the just determination of all proceedings before the Federal Court;
- the efficient use of the judicial and administrative resources
available for the purposes of the Federal Court;
-
the efficient disposal of the Federal Court's overall caseload;
- the disposal of all proceedings in a timely manner;
- the resolution of disputes at a cost that is proportionate to the
importance and complexity of the matters in dispute.[5]
2.8
These provisions are intended to: assist judges with the confident
application of active case management powers; ensure the Federal Court
considers broader aims than the interests of justice between the parties; and
clarify that case management is a relevant consideration in the attainment of
justice. They are also intended to remind litigants that costs should be
proportionate to the matter in dispute, particularly in so-called mega-litigation.[6]
2.9
Proposed section 37N will impose a duty on parties to civil proceedings,
and their lawyers, to conduct the proceeding (including negotiations for
settlement of the dispute) in a way that is consistent with the overarching
purpose:
The duty is important to ensure that everyone involved in
litigation is focussing on the real issues in dispute and resolving them as
early and quickly as possible. If the parties conduct settlement negotiations
and/or participate in alternative dispute resolution with this goal in mind,
they may not need to proceed to a hearing.[7]
2.10
The Federal Court must take into account any failure to comply with the
statutory duty when exercising its discretion to award costs in a civil
proceeding. The Explanatory Memorandum provides examples of the type of conduct
that the Federal Court might consider to be a breach of this duty:
- unreasonably refusing to participate in conciliation, mediation,
arbitration or other alternative dispute resolution opportunities;
- failing to act in good faith in attempting to resolve or narrow
issues in the proceedings;
- unreasonably rejecting an offer of settlement of part or whole of
the proceedings; or
- pursuing issues in the proceeding that had no reasonable prospect
of success, including vexatious or frivolous issues.[8]
2.11
A personal costs order may also be made against a lawyer who, when
required by the Federal Court, fails to provide his or her client with an
estimate of the likely duration of the proceeding, or part thereof, and the
likely amount of costs in the proceeding, including party-party costs.[9]
2.12
The Bill will give the Federal Court discretion to make directions about
the practice and procedures to be followed in civil proceedings. A
non-exclusive list of possible directions is set out in proposed subsection
37P(3), for example: setting time limits for the doing of anything; providing
for submissions to be made in writing; limiting the length of submissions; or
referring a matter to alternative dispute resolution.
2.13
Failure to comply with a Federal Court direction may result in such
order or further direction as the Federal Court thinks appropriate, for
example:
- dismissal of the proceeding in whole or in part;
- striking out, amending or limiting any part of a party's claim or
defence;
- disallowance or rejection of evidence;
- awarding costs against a party;
- ordering that costs awarded against a party are assessed on an
indemnity basis or otherwise.[10]
2.14
In concluding remarks, the Explanatory Memorandum refers to similar case
management legislation implemented in NSW (Civil Procedure Act 2005 (NSW)),
and notes that:
The present amendments will complement the Court's existing
use of the docket system (where one judge is assigned to manage each case) and
will improve access to justice.[11]
General
2.15
Section 43 of the Act concerns the types of costs orders that may be
made by the Federal Court (excluding criminal law proceedings). The Bill
proposes to amend that provision, inserting a new subsection (3) to specify the
extent of this judicial discretion, including:
- making an award of costs at any stage in a proceeding, whether
before, during or after any hearing or trial;
- making different awards of costs in relation to different parts
of the proceeding;
-
ordering the parties to bear costs in specified proportions;
- awarding a party costs in a specified sum;
- awarding costs in favour of or against a party whether or not the
party is successful in the proceeding;
- ordering a party's lawyer to bear costs personally;
- ordering that costs awarded against a party are to be assessed an
indemnity basis or otherwise.[12]
2.16
These amendments will codify various judicial powers relating to costs,
either at law or under the Rules of Court, for example, Order 62 Rule 9
regarding the awarding of costs against a lawyer personally.
2.17
Under the Bill, section 49 of the Act will be repealed and replaced. The
new section 49 would allow, in certain circumstances, reserved judgements in
both criminal and civil matters to be made public by a judge other than the judge
who presided over the proceeding:
The purpose of this amendment is to avoid unnecessary cost,
delay and inconvenience that may arise where a Judge is not able to deliver his
or her judgment at a time and date that is otherwise convenient to the parties.[13]
2.18
The Bill will also repeal and replace subsection 53A(1), allowing the Federal
Court to refer proceedings, or any part of them or any matter arising out of
them, to an arbitrator, mediator or suitable person for resolution by an
alternative dispute resolution process. Alternative dispute resolution might
include processes such as conciliation, neutral evaluation or case appraisal.
Only referrals to arbitration, which effect binding decisions require the
consent of the parties.[14]
Jurisdiction and appeals
2.19
The Bill will also amend Part III Division 1 (Original Jurisdiction) and
Division 2 (Appellate and related Jurisdiction), and Part IV (Appeals to the
High Court) of the Act, to streamline the Federal Court's appeals pathways for
civil proceedings, and provide the Federal Court with greater flexibility in
dealing with appeals and related applications.
Original jurisdiction
2.20
At present, subsection 20(2) requires interlocutory matters, as
specified in subsections 20(3) and 20(5), coming before the Federal Court from
a tribunal or authority to be heard by a Full Court.
2.21
Proposed subsection 20(2A) will effect the necessary changes to allow:
...the Court to decide if one of the interlocutory
matters...would be more appropriately dealt with by a single Judge, rather than
convening a Full Court for a minor procedural matter.[15]
2.22
The Explanatory Memorandum emphasises that the Federal Court alone will
decide whether an application for an order is to be heard by a single judge or
the Full Court,[16]
a theme repeated several times in relation to other provisions of the Bill.
2.23
The Act presently allows a single judge or Full Court to exercise
certain powers in relation to an appeal from an authority or tribunal under
subsection 20(2). The Bill proposes to insert a reference to subsection 20(1A),
allowing the provision to apply to all matters in the Federal Court's original
jurisdiction determinable by the Full Court.[17]
2.24
In exercising its original jurisdiction, the Act gives the Federal Court
certain powers, for example: joining or removing a party; or making an order
that an appeal be dismissed for want of prosecution. Schedule 2 Items 7 & 8
will enable a single judge sitting in Chambers or in open court, or a Full
Court, to give directions in its original jurisdiction under proposed
subsection 37P(2). This is in addition to the Federal Court's generic ability
to give directions about conduct of a matter.[18]
Appellate and related jurisdiction
2.25
Paragraph 24(1)(a) of the Act provides that the Full Court has
jurisdiction to hear and determine appeals from the judgements of a single judge
exercising either original or appellate jurisdiction. The Bill will amend this
provision by limiting the avenue of appeal to judgements of a single judge
exercising original jurisdiction only:
This ensures that the appeal pathway for single Judge
decision in the appellate jurisdiction is consistent with the appeal pathway
for Full Court Decisions, as there is no avenue for decisions of a Full Court
to be appealed within the Court. This amendment is intended to reduce the
workload of the Court by removing an unnecessary layer of appeal from decisions
of single Judges exercising appellate jurisdiction.[19]
2.26
There will still be an avenue of appeal from judgements of a single judge
exercising appellate jurisdiction. The Bill will amend Part IV subsection 33(2)
of the Act to provide that these judgements can be appealed to the High Court
of Australia with special leave to appeal.[20]
2.27
Proposed new subsection 24(1AA) will replace section 24(1AAA), providing
that, in relation to certain interlocutory decisions, there is no appeal to the
Full Court from the judgement of a single judge exercising original
jurisdiction:
These interlocutory matters involve minor procedural
decisions for which there should be no avenue of appeal. The removal of the
right to appeal for these types of matters will ensure the efficient
administration of justice by reducing delays caused by appeals from these
decisions.[21]
2.28
Schedule 2 Item 14 of the Bill inserts four new subsections, the
cumulative effect of which is to clarify interlocutory judgments appeal rights
and reduce costs currently incurred in litigating these matters.[22]
2.29
At present, there is a statutory presumption that appeals from the
Federal Magistrates Court, excepting migration judgments, are to be heard by
the Full Court, unless the Chief Justice considers that it is appropriate for
the appeal to be heard by a single judge. The Bill will reverse this
presumption, reflecting 'current practice', and omit the word 'migration',
allowing a single judge to hear and determine all appeals from the Federal Magistrates
Court, unless otherwise appropriate.[23]
2.30
The Act provides that a single judge can state any case or reserve any
question concerning a matter with respect to which an appeal would lie to the
Full Court, and the Full Court has jurisdiction to hear and determine the case
or question. Under Schedule 1 Item 12 of the Bill, this would only apply to
single judges exercising original jurisdiction. Schedule 2 Item 26 therefore
'rectifies' subsection 25(6) of the Act, providing:
...that a single Judge can refer a difficult question to a Full
Court in all circumstances, even when there is no avenue of appeal to the Full
Court. This will assist the Court in dealing with novel cases and will provide
an important safeguard in relation to the amendments being made by item 12...This
also addresses the existing inconsistency where single Judge decisions in the
appellate jurisdiction cannot be appealed to the High Court, though Full Court
decisions in the appellate jurisdiction can be appealed.[24]
2.31
In general, interlocutory decisions of a Full Court in the Federal Court's
original jurisdiction are appealable with leave to the High Court of Australia.
However, the Explanatory Memorandum states that a few interlocutory decisions
in the original jurisdiction involve minor procedural decisions for which there
should be no avenue of appeal:
The removal of the right to appeal will ensure the efficient
administration of justice by reducing delays caused by appeals from these
decisions.[25]
Appeals to the High Court of
Australia
2.32
Schedule 2 Item 32 of the Bill will amend section 33 of the Act,
inserting three new subsections to provide that there is no appeal to the High
Court of Australia from a number of specified interlocutory decisions of the
Full Court in the Federal Court's original jurisdiction, and both a single judge
and the Full Court in the Federal Court's appellate jurisdiction:
- proposed subsection 33(4A) specifies the relevant interlocutory
decisions for the Federal Court's original jurisdiction;
-
proposed subsection 33(4B) specifies the relevant interlocutory
decisions for the Federal Court's appellate jurisdiction; and
- proposed subsection 33(4C) allows interlocutory decisions made in
the course of a matter to be listed as one of the grounds in an application for
special leave to appeal the Federal Court's final decision. [26]
2.33
Schedule 2 amendments will apply in relation to proceedings, appeals and
related applications, and cases stated or questions reserved commenced on or
after commencement of Schedule 2 of the Bill.[27]
Judicial responsibilities
2.34
The Bill will amend also the Act, the Family Law Act 1975 and the
Federal Magistrates Act 1999 to clarify the powers of their judicial
officers, especially the heads of each federal court.
Family Law Act 1975
2.35
The Bill will amend Part IV Division 2 (the Family Court of Australia)
of the Family Law Act 1976.
2.36
Subsection 21B of the Family Law Act 1976 currently provides that
the Chief Judge is responsible for ensuring the orderly and expeditious
discharge of the business of the Family Court of Australia. Schedule 3 Item I
of the Bill will 'broaden' this responsibility to also ensure the effective
discharge of the Family Court of Australia's business:
The purpose of this amendment is to make it clear that it is
the responsibility of the Chief Judge to manage issues that impact upon the
effective running of the Court, which might include judicial performance
issues, in order to ensure that the resources of the Court are used and
allocated appropriately and that Judges can manage their workloads and deliver
judgments in a timely manner.[28]
2.37
Part of subsection 21B will be omitted by the Bill, and replaced by
Schedule 3 Item 3, which will insert proposed subsection 21B(1A) into the Family
Law Act 1976. This subsection would elaborate upon the general
responsibilities of the Chief Judge by providing examples of what actions the
Chief Judge may take to fulfil these responsibilities, such as: assigning
particular caseloads, classes of cases or functions to particular judges;
temporarily restricting a judge to non-sitting duties; or ensuring appropriate
access to annual health assessments, short-term counselling services, and
judicial education:
This [latter] amendment supports and encourages the
retention of systems that are already in place at the Court and is flexible
enough to allow the Chief Judge to ensure that the type of assistance that best
meets a Judge's needs is available.[29]
2.38
The Bill will insert two subsections into section 21B (Arrangement of
the business of the Court) of the Family Law Act 1976:
- proposed subsection 21B(4) clarifies that in exercising, or
assisting in the exercise of, the functions or powers set out in new paragraph
21B(1A)(a) the Chief Judge and the Deputy Chief Judge will have the same
protection and immunity as he or she has in judicial proceedings of the Family
Court of Australia; and
- proposed subsection 21B(5) will amend the application of section
39B of the Judiciary Act 1903, providing that the Federal Court will not
have jurisdiction with respect to the specified powers in proposed subsection
21B(1A) of the Family Law Act 1976.[30]
2.39
The Bill will also insert subsections into section 22 (appointment,
removal and resignation of judges) of the Family Law Act 1976, including:
- 22(2AAA), which will require a commission of appointment to
assign a judge to a particular location;[31]
and
- 22(2AAB), which will clarify that the Chief Judge, in deciding
whether to consent to a judge sitting in another location on a permanent basis,
will have the same protection and immunity as he or she has in judicial
proceedings of the Family Court of Australia.
Federal Court of Australia Act 1976
2.40
The Bill will amend Part 2 Division 1 (Constitution of the Court) of the
Act.
2.41
Schedule 3 Items 7, 8, 9, and 10 propose similar amendments to the Act,
as for Schedule 3 Items 1, 2, 3, 5 and 6 in the Family Law Act 1976 (see
paras 2.35-2.39 above).
Federal Magistrates Act 1999
2.42
The Bill will amend Part III (Jurisdiction of the Federal Magistrates
Court) of the Federal Magistrates Act 1999.
2.43
Schedule 3 Items 11, 12 and 13 also propose similar amendments to the Federal
Magistrates Act 1999, as for Schedule 3 Items 1, 3 and 5 in the Family Law
Act 1976 (see paras 2.35-2.39 above).
2.44
The amendments to be made by Schedule 3 of the Bill, apart from the
assignment of judges to particular locations, apply in relation to judges and federal
magistrates whether appointed before or after the commencement of the amendments.[32]
Judicial review
2.45
Schedule 3 Part 2 Item 15 proposes to insert three new paragraphs into
Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 excluding
certain decisions of the head of court from judicial review under the Administrative
Decisions (Judicial Review) Act 1977. These exclusions relate, for example
to: the assignment of caseloads or functions to particular judges or federal magistrates;
the restriction of judges or federal magistrates to non-sitting duties; or decisions
about the location at which a judge or federal magistrate will be permanently
located:
Any decisions under these provisions still carry the
protection inherent in the wording of the relevant enabling section that
decisions must be made subject to appropriate consultation. Review by the High
Court under section 75(v) of the Constitution will also remain.[33]
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