judicial management australia

Pacific Judicial Development Programme . [20] Allens Arthur Robinson submitted that it was not the availability of case management powers and sanctions that caused concerns, but ‘the manner in which those powers are currently exercised’: Lenience is often shown where a party wilfully or negligently fails to comply with the rules or a timetable … New or more express powers would not address these concerns unless the Court exercises its discretion more strictly and consistently. [52] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 63. Given the courts’ similarities (their places in the judicial hierarchy of their respective States, their jurisdiction, size and volume of work[50]), this was a naturally occurring experiment affording an opportunity to examine the efficacy of two different case management frameworks. The purpose of the Panel is to select and present to the Attorney-General and Minister for Justice (Attorney-General) a shortlist of persons whom the Panel considers suitable for appointment as a judicial officer for an existing or upcoming vacancy. There shall be a Judicial Appointments Advisory Panel (the Panel). And they are paid accordingly. As one judge said to researchers conducting an early study of the individual docket system, if you’ve got control of the case, you have to solve it because you’re not going to solve it as you could under the previous system by saying, ‘I haven’t seen this case before … I’ll postpone it. Yet even the enshrinement of such worthy goals is not new. [41] See S Flanders, ‘Case Management: Failure in America? Jump to navigation Jump to search. Referral of appropriate cases to alternative dispute resolution programs. Judicial Management When a business is in distress, we conduct a thorough review of the business with a view to rehabilitate it as a going concern. One may conceive of many reasons for the cost, delay and complexity of civil litigation. Judicial management involves provisional and final processes with the latter seeking to implement long-term strategies. I made the following observation about the culture of litigation: To paraphrase Roscoe Pound from “The Causes of Popular Dissatisfaction with the Administration of Justice” (1906) 29 ABA Rep 395, 404-406, the “sporting theory of justice” and any behavioural manifestation of it should be seen as a survival, or better, a relic, of the days when a lawsuit was a fight between two clans.[81]. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 3. Even so, the study found that “early judicial management”, so defined, had significant effects on both the length and cost of litigation: We estimate a 1.5 to 2 month reduction in median time to disposition for cases that last at least nine months, and an approximately 20-hour increase in lawyer work hours. That is partly so because the authors’ principal conclusion as to the effect of early judicial case management on litigant costs was largely borne out by a subsequent study conducted on the other side of the Atlantic, following implementation of the Woolf reforms to civil procedure in England and Wales. [77] And with the reduction of adversarial games should come a reduction of cost. [54] In addition, the Victorian County Court pursued an active policy of limiting the use of these procedures. If a fight is necessary, it is had; but only on the real issues worthy of the trouble and cost of the fight. The risk is that judges given a large amount of leeway to control cases before them will simply develop their own cookie-cutter procedures. 7.9 Greater specification of the Court’s case management powers in legislation would not necessarily increase the Court’s powers. You certainly will get angry in your work – that part is inevitable. Indeed, the oath that Australian judicial officers take before appointment includes a promise: “[to] do right to all manner of people according to law without fear or favour, affection or ill will”. Lord Woolf put the interrelated problems of cost, delay and complexity squarely at the feet of judges and the role they played in the litigation process: These three [problems] are interrelated and stem from the uncontrolled nature of the litigation process. Using people as means to ends always raises difficult moral questions. With our spurning of the fierce adversarial procedures of yesteryear, there may be a tendency to think more case management by judges will necessarily reduce costs and delays. By the end of the 1990s, most Australian courts had implemented case management procedures, which take various guises.20 In the court of which I am Chief Justice, a docket system has been in place since 1997. But if you try and implement the underlying philosophy of it, I think there is a chance of change.[73]. By these dilatory and expensive proceedings, the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge.[2]. The Victorian Law Reform Commission (VLRC) stated, in its Civil Justice Review, that ‘increased judicial management of the disclosure process … will greatly assist in keeping the scope of disclosure focused and reduce delay and costs’. [51] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 17. 4. Australia’s Largest Online Shopping Club. Listing dates, Orders & links to judgments, Subscribe to Judgments & Events by NPA; Practice News, Daily Court Lists and more, User group meetings, Harmonised Rules Committees (Bankruptcy & Corporations). [16] A group of large law firms argued that the Rules and Federal Court Practice Note CM 5 ‘outline with sufficient particularity the case management powers the Court may employ in determining an application for discovery’. According to the report, litigant costs increased from 1994 to 1997 in NSW, but either decreased or remained steady in Victoria. [13] Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Proposal 3–5. Of course, caution is also necessary as a result of some of the idiosyncrasies of American procedure. [5] Accordingly, the report included draft provisions based in part on the Rules of the Supreme Court 1971 (WA) and the Supreme Court Civil Rules 2006 (SA). An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 14. [9]Civil Procedure Act 2010 (Vic) s 56. [57] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 75. [56], The authors concluded that while the cost increases in NSW were due to factors unrelated to the new case management regime, it could be observed “that the Court’s reforms have not contained litigation costs.”[57] Case management reforms in Victoria, by contrast, had been successful in containing costs because of the active role of judges in controlling the development of cases, particularly the use of discovery and interrogatories.[58]. [41] The authors of a study into our own Federal Court’s docket system labelled such attacks “unwarranted”.[42]. 7.3 Stronger judicial control over the scope and process of discovery has been singled out by some commentators as critical to discovery reform. [28] Less time should be spent by lawyers and advocates refreshing their memory of any given matter after an unnecessary delay, while the necessity to adhere to a timetable should focus practitioners’ mind on the essential issues. For example, the Hong Kong Chief Justice’s Working Party on Civil Justice Reform found ‘a broad consensus that the excesses of discovery ought to be tackled by appropriate case management by the courts’.[4]. What do we mean by this? [3] Other jurisdictions have also concluded that improvements to the discovery process are a matter for judicial case management. [49] J Peysner and M Seneviratne, The Management of Civil Cases: The Courts and Post-Woolf Landscape (UK Department of Constitutional Affairs, DCA Research Series 9/05, November 2005) 72. Australia also has bilateral treaties on judicial assistance with the Republic of Korea (South Korea) and the Kingdom of Thailand. The source of data about litigant costs was a collection of surveys of solicitors.[52]. 7.13 The Federal Court’s power to make costs orders and to refer legal practitioners to appropriate disciplinary authorities for failures to comply with discovery obligations are discussed, respectively, in Chapters 9 and 12 of this Report. [29] Second, the length of litigation is supposed to be decreased by the encouragement of earlier and more frequent settlements, which in turn bring down litigants’ expenses.[30]. [36] The authors explained the additional costs incurred as a result of early case management as follows: Lawyer work hours may increase as a result of early management because lawyers need to respond to a court’s management — for example, talking to the litigant and to the other lawyers in advance of a conference with the judge, travelling, and spending time waiting at the courthouse, meeting with the judge, and updating the file after the conference.[37]. [6] See, eg, Civil Procedure Act 2005 (NSW), s 56; Federal Court of Australia Act 1976, s. 37M. [59] James Spigelman, ‘Opening of Law Term Dinner, 2004’ (Address at the Law Society of NSW, Sydney, 2 February 2014) (available at ). How case management works or not, as the case may be, should be part of that dialogue. [11], It has been suggested that while cost and delay are problems of ancient lineage, the analysis that identifies excessive adversarialism as the source of these dual problems is more recent. Like the litigants described by Gibbon, clients of the second species may well come out at the other end of litigation with patience and fortune almost exhausted. This is no mere truism or platitude. First, costs may be “front-loaded”, with the result that parties who would in any event have settled their disputes are nonetheless forced to pay significant amounts for work done by lawyers in complying with case management requirements. One of the purposes of the RAND study was to assess how these principles, and the techniques used to implement them, affected litigants’ costs (measured by attorney work hours and fees). The role of “but say” may re-emerge. [21] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 1. However, it might raise awareness of the ways in which discovery can be managed and encourage greater and more effective use of case management powers. Federal Court of Australia Act 1976 (Cth) s 37P was enacted by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). 7.10 A court’s powers to sanction non-compliance with discovery orders may also be prescribed in more or less detail in legislation. [45] J Peysner and M Seneviratne, The Management of Civil Cases: The Courts and Post-Woolf Landscape (UK Department of Constitutional Affairs, DCA Research Series 9/05, November 2005) 62. Judges also bear some responsibility for avoiding the pitfalls of an excessively inflexible approach to case management. Registrars or other court staff may provide the necessary form of supervision. [3], Jeremy Bentham had been of the same view; he labelled costs “the grand instrument of mischief in English practice.”[4]. (c) conduct intended to delay, frustrate or avoid discovery of discoverable documents. Judicial case management. [55] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 71. Ordinarily, pre-judicial management presupposes that creditors’ obligations are paid before the cancellation of the judicial management order, among other requirements. Is not the risk of it present when the practice of law is viewed as a fee earning business, the profits of which are maximised by fee delivery? [5] Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 470. What is Judicial Management? This would alert practitioners, and remind the Court, of the range and flexibility of the powers available to the Court. I will forever recall Justice Andrew Rogers saying in his court in his gently modulated English: “Not in my Court you won’t”. Our calmer reflection will suggest, that such forms and delays are necessary to guard the person and property of the citizen; that the discretion of the judge is the first engine of tyranny; and that the laws of a free people should foresee and determine every question that may probably arise in the exercise of power and the transactions of industry.[5]. [28] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 61. The Victorian Civil Procedure Act sets out a range of orders the Court may make, without limiting the Court’s power to sanction a failure to comply with discovery obligations or other conduct amounting to abuse of the discovery process. The need for judicial management of individual cases is now the received wisdom across Australia. It is unlikely that any one structure or one step, alone, will achieve and maintain a workable legal system of which we are all proud. If you just treat it as a formal standardised process, ‘oh well we’ve got to go through it’, I don’t think you are going to find any change between this system and the old. Register to receive daily court lists by email soon after they are published. About Court fees including exemptions, deferral & refunds, Under Federal Court Rules 2011, Schedule 3, Pre-judgment & post-judgment interest rates. [11]Federal Court of Australia Act 1976 (Cth) s 37P(5). The judicial system allows the decisions that are made at one level to be appealed at another level that is higher than the former level. Phone +61 7 3248 1224 One way of avoiding it, perhaps, is by thinking about court rules, procedures, trial processes and all aspects of litigation by reference to the dichotomy that I have posited. Judicial management in South Africa : its origin, development and present day practice and a comparison with the Australian system of official management . Further, both political and legal system works and operates on two levels i.e. Unusually, the study was mandated by statute. There is the possibility of further appeal from the Supreme Court to the High Court of Australia. [13], 7.15 Although a few submissions supported this proposal,[14] most did not, noting that the Federal Court already had the power to manage the discovery process effectively. Queensland 4003. [82] White v Overland [2001] FCA 1333 at [4]. 50). Disputes are treated as an instrument of fee generation. If you think clients do not sometimes feel like this, I think you need to get out more. If so, how can a substitute procedure be put in place that will achieve the valid end in question, without feeding process-driven costs. 7.3 Stronger judicial control over the scope and process of discovery has been singled out by some commentators as critical to discovery reform. It will be tempting for such a judge to apply standardised case management to any given matter, without being attentive to its particular characteristics. In my conference session (“Judicial Management of Emotion”), I will share some concrete insights on how to get started. That makes it all too easy for lawyers to abdicate their statutorily mandated responsibility to resolve disputes in a cost-effective manner for their clients. I’ve got a gut feeling it’s going to settle, if not we’ll run around at the end and get the witness evidence, so again we’ve been forced to be ready for trial, so you’ve got to get your good proofs of evidence in the right order, in the right format, done, sent to clients, and all this sort of stuff and make sure they’ve signed and done them, that’s bound to increase the cost.[45]. The courts are entitled to expect and demand no less from the profession and should organise their structures accordingly. It is one of the attractions of arbitration. Judicial review plays an important role in Australia‘s system of government as a means of ensuring the accountability of public officials for the legality of their actions. The common law developed as a liberal institution that accords parties the freedom to run their cases as they see fit. Despite the unique features of American civil procedure, it would be unwise to dismiss the RAND findings out of hand as somehow inapplicable or irrelevant. In other words, while it might sound desirable to have issues and evidence clarified at an early stage of litigation, the risk is that parties will be forced to bear costs with which they might not otherwise have been burdened. [56] A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 71. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 14. [81] White v Overland [2001] FCA 1333 at [4]. It risks encouraging over-reliance upon the court to dictate to parties how their litigation will run. The relationship between the level of case management and litigation costs, however, is by no means linear. [6] Explanatory Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth), 3. [8] M Cappelletti and JA Jolowicz, Public Interest Parties and the Active Role of the Judge in Civil Litigation (New York, Oceana Publications, 1975) 272. I accept that this may be a crude and inadequate paradigm. Doing so could shorten time to disposition, but it may also increase lawyer work hours on cases that were about to settle when the judge began early management.[38]. [64] C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 77. In this environment, questions of expense, delay, compromise and fairness may have only low priority. As has elsewhere been observed, the American form of “discovery” is “a beast of an entirely different order of magnitude compared to the Australian procedure. A constitution confers th… 7.20 Given that most submissions that addressed this question did not support the proposal, and given the limited evidence that the proposal would have the desired effect, the ALRC has decided not to make a recommendation to prescribe in detail such powers in the Federal Court of Australia Act. Indeed, most judges and practitioners who responded to the Law and Justice Foundation’s study of the Federal Court docket system were of the view that “it was generally inappropriate for hearings to be set down at the beginning of the case.”[75] The response of one solicitor probably reflects the views of many: I think it’s more sensible to wait for the steps to be undertaken, it’s my experience that it’s rare that people go through those steps without them changing or something else being required to be done. If, in the face of these risks posed by judicial case management, we were overcome by cynicism about the prospects of reducing litigation costs, one tempting option would simply be to set a date for hearing very early in the process, focusing the practitioners’ minds on the need either to settle or to adhere to a timetable to have the matter ready for trial. 2. Though we might put matters in slightly different terms, those observations appear transferable to Australian jurisdictions. Clients should not have to pay like this for process, and they should not do so. Login Search JavaScript is disabled for your browser. As one judge has observed, I suppose the success of the system so much depends on the approach and enthusiasm of the judges who are administering it. [63] One is presented with the macabre spectacle of lawyers running up costs negotiating, preparing and filing costs budgets, and then running up more costs arguing about those budgets before a judge. [55] By contrast, the New South Wales case management system confined the time within which the parties had to complete their interlocutory preparations but did not otherwise seek to control these activities. [71] C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 79. [13] Final Report of the Committee on Supreme Court Practice and Procedure (Cmd 8878), quoted in P Cashman, The Cost of Access to Courts (Victorian Law Reform Commission, 2007) 10. An example of a cookie-cutter case management horror story is provided by the experience of courts in the Toronto Region of the Ontario Superior Court of Justice (the largest civil trial court in Canada) under the so-called Rule 77 regime for case management from 2001 to 2004. [15] Law Society of Western Australia, Submission DR 26, 11 February 2011; Allens Arthur Robinson, Submission DR 10, 19 January 2011; NSW Young Lawyers, Submission DR 19, 21 January 2011; Law Society of NSW, Submission DR 22, 28 January 2011; Law Council of Australia, Submission DR 25, 31 January 2011; Contributors from the Large Law Firm Group, Submission DR 21, 25 January 2011. One Australian Federal Court judge expressed this view as follows: I think it’s a most naÏve notion of all to suggest to the Court that judges should be managerialist judges, taking cases by the throat, and forcing them to a quick judgment, despite what the parties say, despite what the lawyers say.[71]. A landmark study of the effects of judicial case management was undertaken by the RAND Corporation’s Institute for Civil Justice, published in 1996. Beleaguered water treatment firm Hyflux has come under judicial management (JM) after a High Court ruling yesterday, following a marathon debt restructuring effort that has yet to … [61] C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 89. Settlement negotiations may thereby be truncated. [68], Eventually, the problems were addressed when the “universal case management” approach was replaced by a more flexible arrangement under which management was undertaken only for those “cases that truly required court intervention.”[69]. We recommend financial and operational strategies to maximise value, turn the business around and source for external investors. • August 4, 2020: Utico extends the deadline of its proposed rescue deal for Hyflux, this time by a month. 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