Skip to content.

Home

Allens Arthur Robinson

Focus: Access to justice

25 September 2009

In brief: The Federal Attorney-General has recently released a report by the Access to Justice Taskforce. Its recommendations include a review of the Federal Court class actions regime and a proposal that the civil justice system recover the full public cost of protracted litigation from parties to those proceedings. Partner Peter O'Donahoo (view CV) and Lawyer John Rainbird report.

How does it affect you?

  • The  Access to Justice Taskforce's (the Taskforce) recommendations have not yet been adopted, and are intended to encourage public discussion and input. In seeking to address 'access to justice' concerns, care must be taken not to introduce measures that promote efficiency in the civil justice system but undermine the judicial function that is the reason for the system's existence.
  • Some of the proposals, if implemented, may unduly prejudice corporate Australia's opportunity for fair and equitable access to the civil justice system. For example, the full cost recovery proposal may unfairly discriminate against parties involved in complex disputes, and the proposed reforms to the Federal Court class actions regime may alter the civil litigation playing field, perhaps to defendants' disadvantage.

Background

The Taskforce was established by the Attorney-General's Department to review the federal justice system, with a view to developing a more strategic approach to 'access to justice' issues. Its report was released on 23 September 2009.

Return to top

The strategic framework

The Taskforce's central recommendation is that the Federal Government should develop a system-wide 'strategic framework' for all decisions affecting access to justice in the federal civil justice system. That framework comprises five 'principles': namely, accessibility, appropriateness, equity, efficiency and effectiveness.

Reflecting these objectives, the report contains a number of specific recommendations, some of which, if implemented, would affect the environment in which corporate Australia conducts civil litigation in that system.

Return to top

Cost recovery

The Taskforce recommends that the Standing Committee of Attorneys-General examines the viability of funding part of the civil justice system on a cost recovery basis. This would include a model of full cost pricing for long hearings, which would commence after a certain number of hearing days, or would adopt a sliding scale. The pricing model contemplated by the Taskforce is referable to the length of the trial, rather than, for example, its subject matter. The system would be subject to exemptions and waivers to protect 'access to justice'.

The proposal seeks to address the high public costs of court hearings and to encourage parties to minimise the length of hearings. The stated justification is that the court's civil litigation functions are performed at the request of parties who have the immediate and almost exclusive interest in the conduct and outcome of the litigation.

While the details of any cost recovery system and the scope of the court's discretion are yet to be determined, the recommendation raises concerns. Unlike the full costs recovery system in England and Wales, the proposal is targeted at longer trials. Therefore, it is likely to discriminate against parties who are involved in complex disputes. It relies on the questionable assumption that lengthy litigation is always unnecessary. 

Further, as the proposal may increase costs and so favour well-resourced litigants, it may reduce, rather than promote, 'access to justice'. Full cost pricing would be unfair to those who, for reasons beyond their control, are forced to participate in lengthy litigation.

We query whether this recommendation will lead to further inroads upon the 'loser pays' rule.

Return to top

Class actions

The Taskforce recommends that the Attorney-General commission a review of the Federal Court class actions regime in Part IV of the Federal Court of Australia Act 1976 (Cth) and that consideration be given to:

  • limiting interlocutory proceedings in class actions;
  • abolishing or limiting the Federal Court's discretion to discontinue a class action where it is satisfied that it is in the interests of justice to do so;
  • increasing the scope for greater involvement of regulatory agencies in class actions and allowing the court to award cy-pres remedies;
  • the appropriateness of the current opt-in arrangements for class actions funded by litigation funders; and
  • abolishing the so-called 'Philip Morris principle', which requires all members of the class to have claims against all defendants to the action.

The recommendations are consistent with the general trend of law reform proposals in favour of class action plaintiffs in the Victorian and Federal Court regimes. If implemented, however, these recommendations may materially alter the civil litigation playing field, perhaps to the disadvantage of defendants.

Return to top

Reducing litigation's cost and complexity

The report contains a variety of general recommendations aimed at reducing the cost and complexity of litigation, including:

  • greater emphasis on 'pre-action protocols', such as mandatory pre-action mediation, to encourage the early identification of the real issues in dispute;
  • an assessment of the effectiveness of different discovery orders and the development of options by which courts may order that the estimated cost of a discovery request be paid for in advance by the requesting party;
  • explicitly empowering judges to express a preliminary view on an issue without that constituting apprehended bias;
  • encouraging the Federal Court to identify further scope for parties to use the 'Fast Track' processes;
  • expanding the jurisdiction of lower-lever courts for specific types of disputes;
  • less formal processes for the hearing of self-represented litigants and increased flexibility in allowing the filing of revised claims where an applicant is self-represented;
  • early evaluation of claims by self-represented litigants to ensure that unmeritorious claims are disposed of efficiently;
  • giving the court discretion to make an order that each party bear its own costs (known as a 'public interest costs order'), at any stage of the proceeding, where the court is satisfied that the proceedings concerned will be of benefit to the public; and
  • encouraging active case-management techniques to limit the excesses of 'mega-litigation', including excessive documentary and expert evidence, unnecessarily lengthy pleadings, and disproportionate costs.

These reforms may be beneficial if they promote more efficient and less costly litigation. However, this should not be at the expense of a party's ability to prepare for, and conduct appropriately, civil litigation.

Return to top

Conclusion

At this stage, many of the Taskforce's recommendations are expressed in general terms. No doubt it is envisaged that, through the public consultation process, a set of more definite proposals will be developed.

While there may be a case for increased efficiency in the civil justice system, as mentioned, the Government should not lose sight of the court's public role and constitutional function. Whatever reforms are introduced should be informed by these requirements – to provide a civil justice system that properly enforces the legal rights and obligations of persons who come before the court. A justice system that achieves efficiency at the expense of procedural, and perhaps substantive, fairness is a justice system in name only.

For further information, please contact:

Return to top

Share with

What are these?

 

 

Recent Litigation & Dispute Resolution publications