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Dakin, Helen --- "Work in progress: the adversarial inquiry" [1999] ALRCRefJl 13; (1999) 74 Australian Law Reform Commission Reform Journal 58


Reform Issue 74 Autumn 1999

This article appeared on pages 58 – 60 of the original journal.

Work in progress: the adversarial inquiry

The Australian Law Reform Commission has now made a preliminary analysis of its empirical research on the Federal Court, the Family Court and the Administrative Appeals Tribunal (AAT). Helen Dakin* writes, some of the results are surprising, disproving widely held beliefs about the workings of the federal civil litigation system.

The research by Commission staff was based on a sample of the cases finalised in the AAT during August, September and October 1997; and by consultants Tania Matruglio and Gillian McAllister on cases finalised in the Federal Court during February, March and April 1998, and in the Family Court during May and June 1998.1 Each period chosen was set to show representative samples of court and tribunal workings. Information was collected from the court and tribunal databases and from the individual case files held by the courts and tribunal.

The solicitors associated with the cases, or the parties themselves if unrepresented, were surveyed on aspects of the litigation procedure, in particular for information on their legal costs. Analysis of this solicitor/ litigant survey information is not yet available.

Some key findings from the studies of court and tribunal case files are set out below.

Who are the litigants?

One of the tasks of Commission staff and consultants was to collate information to show who are the litigants and applicants in the federal civil justice system. The courts varied in the extent to which they collect such demographic data on litigants.

In the AAT and the Federal Court, the government is a consistent litigant. All matters in the AAT involve government departments or agencies, notably Comcare, Centrelink and the Department of Veterans’ Affairs. In the Federal Court, government departments are present as applicants (usually regulatory bodies such as the Australian Securities Commission) and, more often, as respondents (in particular the Department of Immigration and Multicultural Affairs and the Australian Taxation Office).

Of other AAT and Federal Court applicants and litigants, the sample showed varying numbers of private individuals, businesses and associations. In the Federal Court sample, 48.5 per cent of applicants and 14.3 per cent of respondents were individuals; 39.3 per cent of applicants and 35.4 per cent of respondents were businesses; and 7.2 per cent of applicants and 47 per cent of respondents were public agencies. The remainder were organisations such as trade unions, cooperative or unincorporated societies, or registered clubs. In the AAT, nearly all applicants were individuals; however, out of a total of 1588 cases there were 50 business applicants - most of them in taxation administration or customs and excise matters. A majority of the individual applicants (67.6 per cent) were male, and men made more applications than women in every category of case. The gender difference was most marked in taxation matters, in which 90.8 per cent of applicants were male, and least marked in social welfare matters, in which 56.7 per cent of applicants were male.

The Family Court case files provided the most illuminating demographic data on litigants. Parties in this court were almost all individuals, although the government was joined as a party in a small proportion of cases dealing with the operation of the Family Law Act 1975 (Cth).

The Family Court is a superior, and therefore an expensive court, yet the Commission’s research shows many of the litigants have limited means - 37 per cent of applicants and 38 per cent of respondents were not in the workforce, and were categorised as engaged in home duties, retired, unemployed, or students or benefit recipients. Those in the workforce were fairly evenly distributed across occupational groups, but the weekly incomes of most litigants in the Family Court were below the national average of $596.20 for all (full and part-time) employees.

The average weekly income for litigants in the Family Court was $674.48, somewhat higher than the national average for all workers, but below the average for full-time workers of $767.80. The income for female litigants was 60.3 per cent of that for male litigants. Half of the litigants in our sample disclosed incomes of $500 or less per week. This is a very low base from which to finance litigation.

What is the dispute?

While there were significant differences in subject matter, in the AAT all disputes concerned the making of an administrative decision.

By contrast, in the Federal Court there was considerable variety in the subject matter of cases coming before the court. The court itself classifies 235 different case types, of which 55 were identified in the sample analysed by the ALRC consultants. The largest case category was migration and refugee cases, which constituted 22 per cent of the caseload in the sample. Other major categories concerned the Trade Practices Act (16.3 per cent); corporations law (12.2 per cent); Administrative Decisions (Judicial Review) Act matters (9.1 per cent) and intellectual property matters (8.4 per cent).

The major categories in Family Court cases are children’s cases (concerning residence, contact and specific issues) and financial cases (concerning property and maintenance). In the sample, 15.2 per cent of cases involved both children’s and financial issues. These categories were further defined into ‘house and garden’ cases (72.5 per cent of the sample), complex businesses (three per cent) and for children’s matters, cases with allegations of child abuse.

Case delay

One of the persistent criticisms of our litigation and review system is that it is a time-consuming process characterised by extensive delays. Our review does not confirm this. Despite the complexity of many of its cases, the Federal Court disposes of its cases quickly: the median time from commencement to finalisation was seven months, and 8.4 months for cases proceeding to judgment. Most cases in the Federal Court are resolved either quite early, at the directions hearing stage (40.8 per cent of cases), or by judgment (35.4 per cent). Very few cases were resolved at the door of the court: almost all cases listed for hearing went through to judgment. This may be a result of the court’s Individual Docket System, by which a judge has responsibility for the management of the interlocutory process of a case, up to and including a hearing. This system is said to increase the likelihood that the interlocutory process will clarify issues and persuade the parties to settle if this is at all possible.

In the AAT there were significant differences between the times taken to resolve different case types. Compensation and Veterans’ Affairs matters took the longest to resolve, with a mean of 11 months 10 days and 11 months 4 days respectively. The fastest cases were social welfare cases, with a mean of six months 20 days. Between 23.5 per cent and 38.8 per cent of matters in each case type went through to a final hearing; however, a significant proportion of cases listed for hearing were settled by consent or other means at the hearing. Social welfare cases were the most likely to require a determination (35.5 per cent of these cases, out of 38.8 per cent attending a final hearing); in compensation, Veterans’ Affairs and taxation matters between 23.5 per cent and 35 per cent of cases went to a hearing, but between 15 per cent and 17 per cent of cases required a determination. The relatively large number of cases being withdrawn or settled ‘at the door of the tribunal’ (22.3 per cent of all cases; 44 per cent of compensation cases) and settled in the applicant’s favour, may indicate that the case management process or the government agency involved did not make the optimum use of the chance to resolve cases earlier.

Perhaps the most surprising finding was that the Family Court cases sampled did not show a significant problem with delay. The median time from commencement to finalisation for the Family Court cases sampled was 5.23 months for disputed matters and eight days for consent orders. Most cases were settled fairly early: just over 50 per cent were settled at the directions hearing stage. Eight per cent of cases ultimately received a judgment: their median duration from commencement to finalisation was 7.6 months. This is a very different picture from the widely publicised view that there is a substantial delay for Family Court cases.

Who are the winners?

In the Federal Court and the AAT it is possible to identify differences in the likelihood of success for applicants and respondents between the different case types, and according to whether they were represented.

In the Federal Court sample respondents were more successful than applicants. This was most marked in migration and refugee cases, 72.4 per cent of which were resolved in favour of the Minister for Immigration and 14.3 per cent in favour of the applicant (the remainder being withdrawn or abandoned). In the AAT applicants were most likely to succeed (by having a decision set aside, varied or remitted to the primary decision maker) in compensation matters (53.7 per cent) and Veterans’ Affairs matters (53.1 per cent), and least likely in social welfare matters (26 per cent).

There was a significant relationship between legal representation and success. In the Federal Court, 7.8 per cent of parties were unrepresented, and most unrepresented litigants were applicants in migration or refugee cases; the case category in which the success rate for applicants was lowest. In the AAT, where approximately 33 per cent of applicants are unrepresented, in all case categories the percentage of represented applicants who were successful was significantly more than the percentage of unrepresented applicants who were successful.

In the Family Court, in 41.1 per cent of cases one or both parties was unrepresented for at least part of the time. Litigants in person were likely either to settle their case early, in the directions hearing stages, or to go through to a defended hearing. Cases where the applicant was a litigant in person were less likely to be settled between the parties (50.8 per cent) than those where the applicant was fully represented (82.9 per cent).

Further issues

Consultants Tania Matruglio and Gillian McAllister, and from within the Commission, Bruce Alston and Angela Repton, are undertaking further analysis on the case information collected by the ALRC. These studies are providing us with information not previously available on what is happening in the federal civil justice system. The specific issues arising from the studies will be discussed at length in the Commission’s forthcoming discussion paper; but some preliminary conclusions can be drawn.

Substantial differences can be seen between the processes and resolution of particular case categories, at least in the AAT and the Federal Court. Attention needs to be paid to proper identification of these categories, and to the particular characteristics of the cases and the litigants involved, in order to ensure the case management system deals with them appropriately. For example, litigants in person are often concentrated in particular case areas. Cases in the Family Court involving children frequently remain unresolved by primary dispute resolution processes and proceed to trial.

Processes in the Family Court need to take account of the fact that its litigants are comparatively poor, and often unrepresented.

Contrary to popular belief, there does not appear to be significant general delay in resolving cases in federal civil matters. However, further research may reveal problems in specific courts or registries, in areas such as listing of hearings or court-initiated adjournments.

* Helen Dakin is a Law Reform Officer working on the Australian Law Reform Commission reference into the federal civil litigation system.

Endnotes

1. T Matruglio and G McAllister Empirical Information about the Federal Court of Australia ALRC Sydney February 1999; Part One Empirical Information about the Family Court of Australia ALRC Sydney February 1999.


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