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Australian Law Reform Commission - Reform Journal |
Reform Issue 76 Autumn 2000
This article appeared on pages 54 – 59 & 103 of the original journal.
Managing justice beyond 2000
Managing justice: A review of the federal civil justice system (ALRC 89) – tabled in federal parliament in February – represents the culmination of a major four year inquiry by the Australian Law Reform Commission. This article summarises the report’s findings and 138 recommendations for change.
Australia’s courts and tribunals play a role well beyond simple adjudication and review. For example, the Federal Court plays a pivotal role in relation to various sectors of economic activity — a role applauded and supported by corporations and corporate counsel. Corporate lawyers and inhouse counsel are of the view that effective judicial management of commercial cases makes Australian legal services a key export, and is part of what makes Australia economically competitive in the Asia-Pacific region and beyond. The Family Court of Australia deals with real and distressing family problems, which have an impact throughout society. This Court has been described as a ‘front line institution to resolve family violence’.
For these reasons, it is critical to keep working at improving the efficiency, cost-effectiveness and timeliness of the civil justice system. ALRC 89 offers suggestions to do just that – but cautions that there are no quick fixes, or easy or permanent answers. Managing justice concludes that success in reforming the civil justice system requires a holistic, collaborative approach. While the report is presented to the Attorney-General, most of the recommendations are directed to the parliament and parliamentary committees, government departments and agencies, the Standing Committee of Attorneys-General, the federal courts and tribunals, legal professional organisations and educational institutions.
The inquiry
The ALRC review commenced with terms of reference directing the ALRC to consider ‘the need for a simpler, cheaper and more accessible legal system’. The ALRC was asked to focus particular attention on issues relating to the causes of excessive costs and delay, case management, alternative dispute resolution (ADR), pleadings and other court processes, expert evidence and unrepresented litigants.
As the review concerned federal jurisdiction, the ALRC examined the Federal Court, the Family Court and the Administrative Appeals Tribunal (AAT), and to a lesser extent those other federal review tribunals set for amalgamation with the AAT in the proposed new Administrative Review Tribunal (ART) — the Migration Review Tribunal (MRT), the Refugee Review Tribunal (RRT) and the Social Security Appeals Tribunal (SSAT). A major empirical research effort was conducted by the ALRC and its consultants — the largest and most comprehensive empirical study ever undertaken of case files and case cost information from the Federal and Family Courts and the AAT. This involved analysis of data from approximately 4,000 cases.
Education, training & accountability
Education plays an essential role at different stages in shaping the ‘legal culture’ and in determining how well the civil justice system operates in practice. To highlight this role and lift the standard of legal education in Australia, the ALRC recommended:
• increasing the emphasis at university law schools on teaching legal ethics and professional responsibility, as well as professional skills such as dispute resolution;
• developing a regime for quality assurance of legal education programs and calling for another national discipline review;
• ensuring the regular participation of legal practitioners in continuing professional development programs;
• establishing an Australian Judicial College and an Australian Academy of Law, dedicated to promoting high standards of learning and conduct across the legal profession, and to meeting the education and training needs of judges and judicial officers; and
• establishing a Council on Tribunals as a national forum for tribunal leadership to develop policies and promote appropriate education and training for members of federal review tribunals.
On the question of judicial performance and dealing with complaints about judges, the ALRC recognised that there already exist a number of important formal and informal checks on judicial performance. However, current expectations about the transparency and accountability of public institutions are no less applicable to the courts. The ALRC recommended that to ensure judicial accountability in the public interest:
• each federal court develop a transparent internal system of complaints handling, consistent with the prevailing Australian Standards in this regard, including annual reporting of complaints and outcomes; and
• both Houses of federal Parliament develop rules or a protocol designed to ensure the smooth transfer and certain handling of the rare complaints against federal judges of sufficient seriousness and substance to merit consideration of whether to remove the judge from office.
Professional practice standards
The ALRC considered lawyers’ professional conduct rules and ethical standards, as well as the ‘model litigant rules’, which regulate how the federal government conducts itself as a party to proceedings. The report recommended that legal professional associations and regulatory bodies should give priority to developing national model professional practice rules and that the rules be supplemented by commentary and explanation. This allows fuller exposition of the underlying purposes and spirit of the rules, the provision of examples from different practice areas, and assists in teaching legal ethics and professional responsibility to law students and practitioners. The Law Council of Australia is asked to facilitate these efforts.
The ALRC recommended the development of a number of new rules directed to the full array of advisory and representational roles undertaken by lawyers. For example, the ALRC recommended professional practice rules that:
• oblige practitioners to act in good faith when engaged in ADR processes;
• expressly restrict lawyers from making allegations not supported by evidence;
• increase the obligations imposed on lawyers to be candid with the court; and
• prohibit lawyers from encouraging or assisting litigation with little or no substance, and those litigation practices intended as a stratagem to win time or harass an opponent.
The ALRC noted the significant development of giving explicit legislative force to the federal government’s ‘model litigant rules’ and amendments to the New South Wales Bar Association rules which are consistent with these proposals. Model litigant rules should be given additional force, expressly stating the sanctions for breach, such as termination of the contract to supply legal services.
Legal costs
The ALRC’s empirical research has shown that the complexity of cases, the number of court or tribunal case events and lawyers’ charging practices are the most significant influences in determining the amount of private costs. It follows that a reduction or control on legal costs requires a collaborative approach from lawyers, government, courts and tribunals.
Cost estimates. In most jurisdictions, lawyers are required to disclose to clients the basis upon which costs are to be calculated, and in some states lawyers are required to provide an early estimate of costs. All states and territories should enact uniform legislation requiring lawyers (solicitors and barristers) to provide estimates of costs to their clients early, and on an ongoing basis.
Consumer information. Consumers do not have ready access to costs information in what is not yet a true, competitive market for legal services. The ALRC’s recommendations are intended to increase the amount of information available to consumers relating to the provision of legal services, and the range of fee rates charged by lawyers.
Event based scales. Court fee scales set charges for particular items of legal work and determine the costs to be paid to successful parties in the litigation by the unsuccessful party. In a recent report, Professor Phillip Williams of the Melbourne Business School proposed that court fee scales be changed from charges for particular items, such as photocopying or drafting documents to ‘event based scales’, with charges fixed for work at particular stages of the process. Such charges will be set at varying amounts depending on the complexity of different case types. The ALRC considered that the Williams report provided a useful model for the reform of fee scales, and recommended the introduction of event based fee scales in the Federal Court and Family Court with some refined features.
Court & tribunal fees. Governments also set court and tribunal fees which parties pay on filing a matter, or on proceeding with matters in courts and tribunals. The ALRC recommended the abolition of the existing distinction between the fees charged to corporations and those charged to individuals — which appears to operate unfairly in relation to small businesses. Instead, court fees should be set on a graduated basis, increasing according to the length of hearings and the parties’ usage of court and tribunal processes.
Legal assistance
Many of the parties involved in legal disputes are unable to pay the full costs of the legal advice and representation they require. They frequently receive assistance from lawyers for less than the market cost of their services, for no cost (pro bono) or on a deferred or delayed charge basis. The lawyer and client may agree there is no charge if the case is unsuccessful or set a fee ‘uplift’, which is generally drawn from the client’s award if successful, or other contingency fee arrangement.
Parties also receive assistance, in the form of advice or representation, from government funded legal aid schemes. The ALRC analysed in detail the way in which legal aid schemes deliver their services and select the parties who qualify to receive full representation. The ALRC’s recommendations address the efficiency and effectiveness of delivery systems, the optimal use and coordination of limited resources, and the need for data to show who is receiving legal assistance, their case costs and case outcomes. The recommendations aim to:
• evaluate and improve the intake and application assessment procedures of legal aid commissions and the assignment of legal aid cases;
• address quality and funding issues regarding the use of private practitioners in legal aid cases;
• enhance funding and funding guidelines for family law legal aid cases, with a focus on early resolution of such cases;
• encourage the development of a self-funding arbitration scheme for family property disputes;
• increase the availability of legal aid for early advice, assistance and evidence gathering, and the resolution of certain administrative law cases;
• secure better coordination of the various legal assistance providers to improve initial advice and referral — to prevent a ‘referral roundabout’ with clients being passed from one advice agency to another;
• clarify the conflict of interest rules where parties are represented by legal aid commission lawyers, and develop procedures to minimise such conflicts; and
• expand the Court Network support scheme, which provides assistance and orientation in court, in family law matters.
Practice, procedure & case management
The ALRC examined general issues relevant to practice and procedure and the design and evaluation of case management systems in federal courts and tribunals. Features associated with successful case management include judicial commitment and leadership, court consultation with the legal profession, early assessment of the issues and settlement prospects of cases, close supervision of case progress, recognition of the skills and resources of litigants, and good IT systems for collecting data and monitoring case management.
Expert evidence. The use of expert evidence is often part of the tactical play of litigation and can add significantly to costs. The ALRC recommendations are aimed at clarifying the role of expert witnesses and facilitating the use of expert evidence including:
• emphasising the primary obligation of expert witnesses to the court or tribunal, rather than to the client;
• encouraging prehearing conferences and other contact between experts;
• requiring experts, with the leave of the court or tribunal, to prepare for and answer questions prior to hearing;
• requesting the Australian Council of Professions to develop a generic set of ethical practice standards for experts;
• urging federal courts and tribunals to encourage, as a matter of course, the use of experts agreed between the parties; and
• encouraging expert evidence to be presented in a panel format, with all experts able to hear and comment on the evidence of the others.
The Federal Court
In consultations and submissions the ALRC heard consistent high praise about the quality judging and effective management of the Federal Court. The ALRC identified some areas which require ‘fine tuning’ and recommended that the Federal Court develop a national procedures guide to the individual docket system and a protocol to deal with cases which are ready for hearing but are not listed for hearing by the docket judge within a reasonable time.
Native title. In respect of native title cases the ALRC recommendations include the development of protocols to clarify the complementary roles of the Court and the National Native Title Tribunal and a review of the arrangements for taking oral evidence in native title cases – including how best, if at all, to use assessors for taking evidence.
Representative proceedings. The ALRC discussed various issues raised in consultations and submissions including: competing representation; settlement of class action claims; costs liability; and ethical concerns where lawyers represent such large and disparate groups. The ALRC recommended that some of these issues be dealt with in legislation or Court guidelines and for national model professional practice rules to set down the role and particular responsibilities of lawyers in representative proceedings.
Practice & procedure. On other matters of practice and procedure in the Federal Court the ALRC recommended: continued efforts at developing harmonised rules on originating process in civil matters in the Federal Court and state and territory Supreme Courts; requiring respondents to help narrow the issues in dispute; imposing enhanced ethical obligations on parties and lawyers in ex parte applications; and refining the procedures in relation to electronic discovery.
The ALRC also considered a number of other matters designed to assist the Court to manage its operations efficiently and reduce costs and case duration for parties including: permitting increased use of summary judgments; providing for self-executing costs orders; increasing Court supervision of the use of subpoenas; requiring the leave of the Court for supplementary witness statements and additional evidence; making more active use of interlocutory costs orders in appropriate cases; and monitoring the use and effectiveness of mediation and other ADR options (both Court based and private schemes).
The Family Court
In its consideration of practice, procedure and case management in the Family Court the ALRC acknowledges the difficulties of family jurisdiction, which involves cases with a range of social and emotional as well as legal issues, and in which parties may be angry and disaffected.
Simplification procedures. The ALRC heard strong and persistent criticism from lawyers and litigants in relation to the Court’s practice, procedure and case management. Lawyers were emphatic that the Court’s simplification procedures added to costs and complexity in some instances and delayed settlement in property cases. The Court’s simplification procedures delay the provision of relevant information in the case. The effect of these processes is that parties often do not have a clear idea of the issues in dispute until late in the process and they frequently do not obtain full discovery of relevant documents in the case until after the Court settlement hearing. The ALRC recommended that the Family Court, and its Future Directions Committee, give priority to a reconsideration of Simplified Procedures, especially in relation to disputes on financial matters.
Case events & consistent oversight. There was also concern about the number of repeat case events (ie, appearances before a registrar or judge) and inflexible processes. The problems identified by the ALRC concerned a substantial minority of cases. In the ALRC’s sample, almost one quarter of applications for final orders had more than five case events: seven per cent had 10 or more case events. These repeated attendances at Court involve significant cost (about $700 – $3,500) and are the cause of much aggravation to the parties.
The ALRC heard many complaints about certain aspects of the Court’s case management system. Case management guidelines are inflexible, requiring parties to attend a series of scripted case events intended to resolve the case and not adjusted to the needs of the parties. Under the current system, especially in larger registries of the Court, there is no consistent oversight of cases on the occasions they are listed for hearing before the Court. Litigants complain of having to repeat their stories at each hearing to a different court officer.
These issues are currently under consideration within the Court, whose Future Directions Committee is preparing proposals for reform. The ALRC supported this process.
Compliance. The ALRC noted the strong concern from within and outside the Court over what is described as ‘the culture of non compliance’ in the Court. The Court has repeatedly attempted to address this problem, most recently through the work of its Compliance Committee, whose recommendations are to be considered by the Court. In submissions and consultations the Court, practitioners and parties all acknowledged the problem and blamed each other for its extent. The ALRC recommended that the Court identify clearly the particular circumstances and registries in which there is a culture of non compliance. Sanctions for non compliance should not be automatic. The Court should retain primary responsibility to initiate sanctions for failure to comply with rules or directions. Compliance would be assisted through consistent oversight of cases by a judicial officer — particularly a judge or registrar with sufficient authority to assure the attention of practitioners.
The Court & the profession. The ALRC expressed serious concerns regarding the reform processes in the Family Court and the Court’s relationship with the profession. The ALRC noted a high level of distrust between practitioners and the Court. The ALRC detailed the recent history of failed efforts at internal reform such as pleadings and ‘simplified procedures’.
The Court made repeated criticisms of practitioners as the cause of case management problems. Poor communication between the Court and practitioners was the basis of many practitioners’ complaints about procedural reform. In the words of one senior lawyer, ‘[t]hey think we’re always complaining and we think they don’t ever listen’.
Future reform. There now appears to be substantial agreement between the Court and the ALRC as to the problems with procedures and case management and the general approach to solving them. The Court has a longstanding concern that it is inadequately resourced and that changes to legal aid funding have increased dramatically the number of unrepresented litigants appearing in the Court.
The jurisdiction is too socially important and too fraught for matters to be left to internal Court deliberations. The ALRC recommended that within two years of the release of this report, the Attorney-General consider the establishment of an independent review to examine practice, procedure and case management in the Family Court. Such a review would include assessment of funding needs, allocation of resources, efficacy of procedures, and the effectiveness of the Court’s information technology system and data collection.
Federal merits review tribunals
The ALRC’s recommendations in relation to the MRT, RRT, SSAT and Veterans’ Review Board will be of particular importance to the way in which the proposed new amalgamated tribunal, the ART, will operate. The recommendations are intended to assist tribunals in their objective of ensuring that the government decision making process is effective and that the decision is the correct and preferable one.
Case management. The ALRC found that the AAT’s processes are generally effective and while radical changes are not required, specific reforms are needed to address concerns. The ALRC found that, contrary to one of the AAT’s objectives, namely to provide speedier resolution of cases than that provided by court processes, on median figures, cases in the AAT took longer than cases in the Federal Court or Family Court. The ALRC recommended that the AAT examine case management systems in which each case is allocated to particular decision makers, who will take responsibility for managing and progressing allocated cases from commencement to finalisation.
The ALRC confirmed that the new ART should not operate under a single case management model but should use a range of practices and procedures adapted to suit the different types of cases that will come before it. The ALRC made recommendations:
• encouraging tribunals and agencies making primary decisions subject to review to develop better arrangements for contact and communication;
• for the issuing of guidelines for tribunal members on their investigative duties and responsibilities, to encourage them proactively to investigate case facts and to assist applicants who do not have a representative; and
• encouraging the new ART to use ‘multi-member’ panels for cases which are particularly complex or require specialist member expertise.
Representation. The ALRC closely considered how parties participate and are represented in review tribunal proceedings. Parties in tribunal proceedings frequently are unrepresented — in some tribunals, legislation limits the participation of representatives in tribunal hearings. The ALRC’s empirical research showed that restricting the participation of lawyers and other representatives may increase the numbers of cases going to a hearing rather than resolving by agreement. Parties who were unrepresented tended to withdraw or have their case dismissed or heard by the tribunal and the case sample indicated that they may be less successful in challenging government decisions.
The ALRC recommended that legislation, policy and practice concerning tribunal proceedings should not focus on excluding, but rather on better managing, the contribution of representatives. Legislation and practice directions for the new ART should provide the tribunal with discretion to permit applicant representatives to participate in hearings. The ALRC also recommended that the federal Attorney-General should specify in model litigant obligations that agencies and agency representatives have express duties to assist the tribunal to reach its decision.
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URL: http://www.austlii.edu.au/au/journals/ALRCRefJl/2000/12.html