judicial management australia

I commend them to you, both as a convenient analysis of the law as it is today and because you may be able to make a submission which will affect judicial review in Australia tomorrow. Upon the introduction of the current docket system, “no definitive case management structure or set directives were implemented by the court and individual judges were ultimately left to manage cases and adopt suggestions as they saw fit.”[64] The Rules reflect this approach. [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. It is at least as old as Magna Carta, in which King John made the following promise: To no one will we sell, to no one will we deny or delay right or justice. 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. As I have discussed, judicial case management is a response to the deleterious effects of a civil litigation system governed only by rules, where judges’ involvement is limited to enforcing those rules (and then only on a party’s motion). [5] Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 470. Managing Discovery: Discovery of Documents in Federal Courts (ALRC Report 115), a court may make any order or give any directions in relation to discovery that it considers necessary or appropriate’ and then gives. Login Search JavaScript is disabled for your browser. 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. On the other hand, it appears this risk of front-loading led to a reduction in the number of matters filed in English courts after the Woolf reforms,[46] since litigation was now seen truly as a last resort only to be launched when a case was in order. 50). A little plain speaking is required. Surely, as a profession, they must bear some responsibility for the way in which matters are litigated. Furthermore, parties who are destined to settle are nevertheless, as we all know, perfectly capable of running up litigation costs, whether or not judges become involved in case management. 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]. One danger of excessive judicial case management is that it provides comfort to the second species of practice by fostering passivity in the profession as a whole. 7.5 The VLRC’s Civil Justice Review recommended ‘the introduction of more clearly delineated and specific powers to facilitate proactive judicial case management in relation to discovery’. In some cases, this may entail the sacrifice of fees that might have been “earned” (if that verb may sensibly be deployed in this context), had a less efficient approach been adopted. Pre-action Protocols and Other Alternatives to Discovery, Pre-action protocols in the United Kingdom, Potentially unethical discovery practices, Appendix 2. [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. [11] Lord Woolf MR, Access to Justice: Interim Report, ch 3 at [4] (available at < http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/interim/chap3.htm>). How case management works or not, as the case may be, should be part of that dialogue. Empirical support for this hypothesis is shaky. [3] Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 470. Judiciary of Australia. 7.11 Section 56 of the Civil Procedure Act now provides: (1) A court may make any order or give any direction it considers appropriate if the court finds that there has been—, (a) a failure to comply with discovery obligations; or, (b) a failure to comply with any order or direction of the court in relation to discovery; or. [23] 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) 48. [20] 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) 2-3. [7], As Professor Jolowicz observed in the 1970s, “[t]he essential question … concerns the extent to which the powers of the court can be increased without thereby sacrificing other values which are held to be vital to the due administration of civil justice.”[8]. Lord Woolf’s aspiration that case management would achieve his aims in relation to costs has not been achieved.[43]. Cookie-cutter case management is likely to increase litigation expenses, not decrease them. [1] These aspirations were taken up by the Hon Justice Ray Finkelstein in 2008 at a workshop on case management reforms: The key to discovery reform lies in active and aggressive judicial case management of the process. [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. A case that ultimately goes to trial may be made even more expensive by judicial over-management. The picture that emerges from these studies is, at best, blurry. Justice delayed is justice denied; cannot the same be said of justice at an unreasonable cost? The Judicial Conference of Australia (JCA) considers that a concomitant of judicial independence is the recognition by the judiciary that, under the current constitutional arrangements in the Commonwealth and each State and Territory, it is the unfettered prerogative of the Executive government of each polity to appoint judicial officers. This article is part of a series on the politics and government of Australia; Constitution; The Crown. It is now our objective, enshrined in legislation,[6] to have a sophisticated, but swift and inexpensive system. Where the principles of “caseflow management” hold sway, law ceases to be impassive and distant. BT FILE PHOTO . [17], 7.16 The Law Society of Western Australia submitted that a broad discretion applicable generally was preferable, ‘rather than a specific and express power with respect to a particular aspect of the litigation process, namely discovery of documents’.[18]. Instead, judges and special masters should be encouraged, through judicial education or otherwise, to make greater use of their existing case management powers and to monitor more closely the parties’ compliance with the timetable.[21]. Judicial review under s.474 of the Migration Act 1958 as summarised in the case of Shahpari & Ors v Minister for Immigration & Anor [2016] FCCA 513 (11 March 2016). Encouragement of cost-effective discovery through voluntary exchanges and cooperative discovery devices; Good-faith efforts to resolve discovery disputes before filing motions; and. Find hearing dates & times for all current matters in the FCA and FCC. Pacific Judicial Development Programme . Footnotes (2000) 204 CLR 82, 92-3. Now that we have reached the subject of focusing practitioners’ minds, allow me to step back for a moment. [62] 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. [53] 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. For instance, who said that $100,000 is a proper sum for security for costs of a not complicated half to one day appeal in the Court of Appeal? 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. Such costly justice might tend to abate the spirit of litigation, but the unequal pressure serves only to increase the influence of the rich, and to aggravate the misery of the poor. In Australian judicial system, the courts that are found in each state are divided into levels which from the highest level are the Supreme Court, the Intermediate courts and the Lower level courts. 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. 7.9 Greater specification of the Court’s case management powers in legislation would not necessarily increase the Court’s powers. Generally, the High Court and the Supreme Court have established similar review principles on cases involving similar facts. 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. Let me turn to the profession. [77] 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) 99. [15] 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. 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. Judicial management involves provisional and final processes with the latter seeking to implement long-term strategies. [77] And with the reduction of adversarial games should come a reduction of cost. 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. [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]. 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. The common law developed as a liberal institution that accords parties the freedom to run their cases as they see fit. If process-driven costs can be reduced to a bare minimum, fees for true skill and acumen will not seem so painful. The Australasian Institute of Judicial Administration (AIJA) The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems. The chief difference between the regimes adopted by the two courts was that the NSW system was “default-based” and “rule driven”, while the Victorian County Court went down a path more akin to that of the Federal Court, with judges actively managing cases at directions hearings. Implicit in the zealous call for judicial case management, in other words, is the notion that solicitors and barristers lack control over their own behaviour or are otherwise irredeemably refractory. Phone +61 7 3248 1224 Prior to the IRDA, the procedures for a Judicial Management were set out in Sections 227AA to 227X of the Companies Act (Cap. The court’s task is to understand how litigation should run, and how it can be encouraged to run cost-efficiently. Nevertheless, the results of the study are uncomfortable for the more zealous proponents of judicial case management. Ordinarily, pre-judicial management presupposes that creditors’ obligations are paid before the cancellation of the judicial management order, among other requirements. [1] Edward Gibbon, Decline and Fall of the Roman Empire (Vol II, 1781), Ch 17 (available at ). state and federal. [18] Law Society of Western Australia, Submission DR 26, 11 February 2011. Judicial management in South Africa : its origin, development and present day practice and a comparison with the Australian system of official management . We pay our respects to the people, the cultures and the elders past, present and emerging. [18] Sword and scales are put to one side and practitioners are engaged by the court. 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. Disputes are treated as an instrument of fee generation. By the end of the 1990s, most Australian courts had implemented case management procedures, which take various guises. This is no mere truism or platitude. HSBC Holdings PLC has filed a court application to place oil trader Zenrock Commodities Trading Pte Ltd under judicial management over non-payment of dues and other issues, four people familiar with the matter said on Wednesday. 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. [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. [73] 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) 45. [19] Partly it is seen, rightly so, as the judge becoming familiar with the case through its interlocutory processes. Register to receive daily court lists by email soon after they are published. It seems tolerably clear, however, that judicial case management, if it is done badly, will either have no impact on litigation costs or, worse, increase them. [72] In some judges, resistance to it may take the form of a rule-based, inflexible approach to the task of case management, infecting the new system with the ethos of the old. Somehow, though, one arrives at the conclusion that those who need to change their behaviour are not practitioners so much as judges. Alfred Hitchcock is rumoured to have said film actors were like cattle, and should be treated accordingly. 7.7 While the Federal Court of Australia Act does not include this level of detail, the Federal Court does have authority to make such orders in relation to discovery. 7.14 In the Consultation Paper, the ALRC proposed that pt VB of the Federal Court of Australia Act be amended to provide the Court with broad and express discretion to exercise case management powers and impose sanctions in relation to the discovery of documents, in line with ss 55 and 56 of the Victorian Civil Procedure Act. [3] Other jurisdictions have also concluded that improvements to the discovery process are a matter for judicial case management. [47] That may be a desirable by-product of an increased judicial propensity to take an active role in managing cases: litigation is less able to be used as a strategic bargaining chip. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 1-4. [66] 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) 83. Executive. These suggestions are intended not to fetter the Court’s discretion, but simply to encourage the appropriate and targeted use of the existing powers by articulating them in material that the Court, parties, practitioners often refer to. In particular, there is no clear judicial responsibility for managing individual cases or for the overall administration of the civil courts.[10]. Effective judicial case management, by clarifying and stripping the issues early, may greatly hasten any settlement that would in any event have occurred. 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. 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 not dissimilar opinion of legal practitioners appears to be the unarticulated premise in any argument that since lawyers run up unnecessary costs for their clients, judges need to do their job differently. Nevertheless, the trend has been to assign ultimate responsibility for case management to judges. [37] JS Kakalik et al, Just, Speedy, and Inexpensive? [4] Jeremy Bentham, Principles of Civil Procedure, with the Outlines of a Procedure Code (1843 ed) (available at ). A court may make any order or give any directions: legal practitioners to appropriate disciplinary authorities for failures to comply with discovery obligations are discussed, respectively, in Chapters 9 and 12 of this Report. [42] 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) 25. Being excessive their statutorily mandated responsibility to resolve discovery disputes before filing motions and., is it truly to be jumped before the real task begins from legal by!, Speedy, and Inexpensive plainly, an impulse to eliminate delay and complexity Civil! 'S template documentation for further Citation fields that may be a temptation for legislators and judicial administrators 1996 14... The assertion, which was significantly based on these fundamentals Reform Act RAND! Directions hearings become excessively lengthy rise of judicial Administration 205 ; can not same... 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