There is, plainly, an impulse to eliminate delay and expense in civil proceedings. Cancel anytime. Section 474 of the Act creates a statutory scheme providing for the finality of a privative clause decision. Justice Price was appointed the Chief Judge of the District Court of NSW on 8 August 2014 and remains a judge of the Supreme Court of NSW. There shall be a Judicial Appointments Advisory Panel (the Panel). 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.. Partly this is due to what may be described as the “clout” of judicial officers; partly it is a function of the fact that matters, if they go to trial, will be heard by a judge rather than by anyone else. 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).  Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (London, HMSO, 1996) 2.  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. The report’s authors defined “early judicial management” as “any schedule, conference, status report, joint plan, or referral to ADR within 180 days of case filing.” This may be considered a very broad definition. In particular, there is no clear judicial responsibility for managing individual cases or for the overall administration of the civil courts.. Judicial management is a method of debt restructuring where an independent judicial manager is appointed to manage the affairs, business and property of a company under financial distress. Someone else will.  The Hon Chief Justice WK Winkler, Evaluation of Civil Case Management in the Toronto Region: Report on the Implementation of Practice Direction and Rule 78 (February 2008) (available at ) 13-14.  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.  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) 3. The various case conferences, filings, extensions and mandatory mediations more often than not, did very little to move the cases along. An invitation to speak at the Lord Dyson lecture on "The Jackson Reforms to Civil Justice in the UK" hosted by University of New South Wales, Faculty of Law held at Herbert SmithFreehills, Sydney. 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.  Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 470. 7.19 It is debatable, however, whether prescribing the Federal Court’s case management powers in greater detail in legislation would generate such an improvement in the discovery process. Australia. How case management works or not, as the case may be, should be part of that dialogue. We pay our respects to the people, the cultures and the elders past, present and emerging. 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. The findings of the study with respect to the effects of “early judicial management” are of considerable interest. 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. Judicial management in South Africa : its origin, development and present day practice and a comparison with the Australian system of official management . In this environment, questions of expense, delay, compromise and fairness may have only low priority.  Sword and scales are put to one side and practitioners are engaged by the court. By the end of the 1990s, most Australian courts had implemented case management procedures, which take various guises.  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. Freiberg A, 'Non-Adversarial Approaches to Criminal Justice' (2007) 16 Journal of Judicial Administration 205. 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. It is now our objective, enshrined in legislation, to have a sophisticated, but swift and inexpensive system.  Space and time do not permit a detailed tribute to and comparison with the United States federal district court model upon which the Australian Federal Court’s initiative in the 1990s was based. “Managerial judging”, therefore, is at odds with the habits of mind in which common law judges have traditionally been steeped. It will become process, separate from the resolution of the dispute: a necessary hurdle to be jumped before the real task begins. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 5. Judicial review at a federal level has been available under the Constitution since the inception of the Commonwealth.  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.  Prior to the introduction of the relevant provisions, in White v Overland, I discussed courts’ expectation of a reasonable degree of co-operation between parties. 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.  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. King MS, 'Therapeutic Jurisprudence in Australia: New Directions in Courts, Legal Practice, Research and Legal Education' (2006) 15 Journal of Judicial Administration 129. This article will cover: Federal Court of Australia Act 1976 (Cth) s 37P was enacted by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). The substance of these provisions was enacted in s 55 of the Civil Procedure Act 2010 (Vic). 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. (ii) documents relating to one or more specified facts or issues in dispute; (d) that discovery occur in separate stages; (e) requiring discovery of specified classes of documents prior to the close of pleadings; (f) expanding a party’s obligation to provide discovery; (g) requiring a list of documents be indexed or arranged in a particular way; (h) requiring discovery or inspection of documents to be provided by a specific time; (i) as to which parties are to be provided with inspection of documents by another party; (j) relieving a party of the obligation to provide an affidavit of documents; (k) modifying or regulating discovery of documents in any other way the court thinks fit. The second way in which judicial case management has the potential to drive up expenses is simply by being excessive. Judicial Management, which was based on the English administration regime, was intended as a mechanism through which potentially viable companies could restructure their liabilities and rehabilitate themselves. Our data show that the costs to litigants are also higher in dollar terms and in litigant hours spent when cases are managed early. I will let you judge for yourselves whether they exist. The echoes of the RAND study findings are clear. 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.. , 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. A case that ultimately goes to trial may be made even more expensive by judicial over-management.  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). I accept that this may be a crude and inadequate paradigm. It was left to the courts in question to formulate the precise manner in which these principles were put into practice. 7.17 While some agreed with the ALRC’s preliminary view that express powers in the primary legislation might increase awareness, and therefore the use, of the case management powers, others suggested that it was unlikely to have that effect, and that greater judicial education and a culture shift were necessary instead.  Contributors from the Large Law Firm Group, Submission DR 21, 25 January 2011. 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. Lord Woolf’s aspiration that case management would achieve his aims in relation to costs has not been achieved.. However, judicial management has the same effect as in our jurisdiction once the court has ordered that all actions and proceedings and the execution of summonses against the company be stayed and not proceeded with without the leave of the court. • August 4, 2020: Utico extends the deadline of its proposed rescue deal for Hyflux, this time by a month. Like the concept of ‘caseflow 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.  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. For example, in its 2006 report on case management innovations in the Federal Court, the Law Council of Australia (Law Council) recommended that ‘discovery should be dealt with at the Case Management Conference with the Docket Judge taking an active role in the speedy resolution of issues as to the scope and timetable for discovery’. The thesis is that “of the three objectives in a business — speed of delivery, cost of production and quality of production — it is possible to improve two out of three but rarely all three.” In supposed conformity with this “iron law”, the study found “that the case managed court based dispute resolution system is delivering quality (justice) at a much improved pace but not any more cheaply, and possibly, at higher cost.”. It is possible, therefore, that judicial case management in one case will have an impact on costs not only in that proceeding but also in others down the track.  Such pre-action protocols resulted in front-loading of costs, meaning that some proceedings that would have settled before the costs associated with a trial were incurred nonetheless required considerable resources to be expended. One explanation the authors proffered for their findings related to the American system of discovery: [O]nce judicial case management has begun, a discovery cutoff date has usually been established, and attorneys may feel an obligation to begin discovery. The duty of lawyers to promote the just, timely and cost-effective resolution of court proceedings has been given legislative imprimatur in several jurisdictions, including the Federal Court. If costs cannot be controlled, the client comes to the view that law itself is useless and irrelevant: a deeply dangerous outcome.  There would also (so the theory goes) be fewer court events requiring appearances and thus outlay of fees.. 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. Exceptionally good reasons would need to be given for any delay requiring vacation of the allotted date.  Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 470.  It was the perceived (and real) inadequacies of this rigidly adversarial system, with its aloof judges, that led to the Woolf reforms of procedure in England and Wales. 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.” The Rules reflect this approach. It risks encouraging over-reliance upon the court to dictate to parties how their litigation will run. Register to receive daily court lists by email soon after they are published. The doctrine of separation of powers is an essential feature of the constitution and forms the backbone of the same.  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) 13-14. On precisely the same day in 1996 — 1 January — the District Court of New South Wales and the County Court of Victoria instituted new case management regimes. Settlement negotiations may thereby be truncated. Let me posit two methods or styles of practice. 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 Panel shall consist of: 1. the chairperson, who shall be: 1.1. for appointments to the Supreme Court (including the Court of Appeal), a retired Supreme Court judge; 1.2. for appointments to t… In the rise of judicial case management, we are witnessing no less than a shift in common law philosophy. Will the procedure permit exploitation, whether conscious or unconscious, driven by process-based activity? Pacific Judicial Development Programme . Stay informed with all of the latest news from the ALRC. 5. Edwards, Bruce. To a degree party autonomy is a virtue. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 14. Instead, the ALRC suggests that the Federal Court consider whether articulating in practice notes some of the specific ways the Court might exercise its broad powers in relation to discovery, including its powers to order sanctions, might serve to drive cultural change and generate certainty of expectations and obligations.  While the Act does not specify the kinds of orders the Court may make in relation to discovery, it provides that the Court may, among other things, ‘require things to be done’ and ‘set time limits for the doing of anything, or the completion of any part of the proceeding’.. Practitioners expressed concern about unnecessary directions hearings at the time of the docket system’s adoption in the Federal Court: Although directions hearings were seen as useful in situations where one party was continually in default, a number of practitioners felt that many stages in the process did not require appearance in court if both parties were complying with orders or alternatively were in agreement that the matter should be adjourned. Writing in the late eighteenth century, Edward Gibbon had this to say about Roman advocates in the centuries following the foundation of Constantinople: The splendid and popular class was composed of the advocates, who filled the Forum with the sound of their turgid and loquacious rhetoric. Judicial case management.  Jeremy Bentham, Principles of Civil Procedure, with the Outlines of a Procedure Code (1843 ed) (available at ). , 7.15 Although a few submissions supported this proposal, most did not, noting that the Federal Court already had the power to manage the discovery process effectively. We aim to guard the person and property of the citizen without surrendering to summary discretion. But, is it truly to be said that type B is not a problem? 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. One solicitor described the process as follows: Once you do litigate you are front-loading, even in fast track claims. Judicial management involves provisional and final processes with the latter seeking to implement long-term strategies. In such instances, it is likely that case management will inflate costs with no offsetting benefits. 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.  The opinion of judges has been summarised in this way: It was generally felt that case management had to be flexible and adaptable, to be useful.  R Finkelstein, Discovery Reform: Options and Implementation (2008), prepared for the Federal Court of Australia, 12.  She described “caseflow management” as follows: [A]s now generally accepted in the courts community, caseflow management connotes supervision or management of the time and events involved in the movement of a case through the court system from the point of initiation to disposition, regardless of the type of disposition.. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 14. , A related issue is the risk that directions hearings become excessively lengthy. Litigation practitioners are reduced to fee-collection machines.  Law Council of Australia, Submission DR 25, 31 January 2011. Judges also bear some responsibility for avoiding the pitfalls of an excessively inflexible approach to case management. No doubt the risk of altering the nature of a case may often be attended by the danger of unnecessary litigation cost blowouts. Nor is justice somehow able to be analysed as a concept distinct from the speed or cost of its delivery. There is a particularly bitter irony where case management undertaken specifically to curb costs in fact adds to them. Including Bankruptcy, Corporations, Migration, Administrative & Constitutional Law and Human Rights; Communicating with the Court; Expert witnesses.  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. 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. The role of “but say” may re-emerge.  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.  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) 71. As discussed later in this chapter, the powers might also be considered in greater detail in judicial education programs and court bench books.  Law Council of Australia, Final Report in Relation to Possible Innovations to Case Management (2006), Proposal 5(a). 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’. Registrars or other court staff may provide the necessary form of supervision. It may happen in at least two ways. In type B practice, when faced with the client’s instructions, the response is to think of the fees that might foreseeably be derived by dealing with the dispute, without an eye to any parsimony of issues or costs. If so, how can a substitute procedure be put in place that will achieve the valid end in question, without feeding process-driven costs.  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. There is the possibility of further appeal from the Supreme Court to the High Court of Australia.  Allens Arthur Robinson, Submission DR 10, 19 January 2011. Effective judicial case management, by clarifying and stripping the issues early, may greatly hasten any settlement that would in any event have occurred.  As long ago as 1906 Roscoe Pound identified one cause of dissatisfaction with the administration of justice as the “sporting theory of justice” and its behavioural manifestations.. 7.8 The Federal Court of Australia Act was amended in 2009 to provide ‘clear legislative direction and support to judges so that they can confidently employ active case management powers’. (ii) help locate and identify particular documents or classes of documents.  Edward Gibbon, Decline and Fall of the Roman Empire (Vol IV, 1788), Ch 44 (available at ).  The Law Council, for example, submitted that amendments in line with the Victorian Act were not necessary, as the Court ‘already has discretion under the Federal Court of Australia Act 1976 (Cth) and through the Federal Court Rules (Cth)’. The distinction between them lies in divergent responses to the stimulus of a client’s instructions in relation to a dispute. One must be careful not to overstate the point, however. According to the report, litigant costs increased from 1994 to 1997 in NSW, but either decreased or remained steady in Victoria. Yet Lord Woolf nominated the lack of judicial case management as the overriding concern. The common law developed as a liberal institution that accords parties the freedom to run their cases as they see fit. 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.  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. An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 1-4. 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 would alert practitioners, and remind the Court, of the range and flexibility of the powers available to the Court.