weeks 1 & 2 - reform of adversarial system

8/9/2019 Weeks 1 & 2 - Reform of Adversarial System

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A Justice System in A Justice System in

‘Crisis’ - reform‘Crisis’ - reform

Civil Procedure, 151Civil Procedure, 151Weeks 1 & 2Weeks 1 & 2


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Need for reformNeed for reform

The problems - a system of litigation in crisis,The problems - a system of litigation in crisis,

crippled by excessive delays and costs.crippled by excessive delays and costs.

The reasons:The reasons: Over dependence on party-controlOver dependence on party-control

Absence of Absence of judicial responsibility for effective use judicial responsibility for effective use

of resourcesof resources

Over Over dependence on an all-embracing trial!.dependence on an all-embracing trial!.


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"eneral trends in reforms: aims"eneral trends in reforms: aims

#liminating delays in the civil litigation#liminating delays in the civil litigation

process.process.

$eeping the costs of proceedings$eeping the costs of proceedingsproportionate to the subject matter ofproportionate to the subject matter of

disputes.disputes.

#nsuring cost effective case preparation.#nsuring cost effective case preparation. #ncouraging appropriate and timely#ncouraging appropriate and timely

settlement of disputes.settlement of disputes.


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"eneral trends in reforms: aims"eneral trends in reforms: aims

%iverting matters to more suitable dispute resolution%iverting matters to more suitable dispute resolution

processes.processes.

&acilitating just, efficient determination of the real issues in&acilitating just, efficient determination of the real issues in

disputedispute ' objects clause' objects clause

()*+:()*+: ““The purpose of these rules is toThe purpose of these rules is to

facilitate the just and expeditious resolutionfacilitate the just and expeditious resolution

of the real issues in civil proceedings at aof the real issues in civil proceedings at ainiu of expense! "rule 5#$iniu of expense! "rule 5#$

#nsuring efficient use of judicial and administrative resources.#nsuring efficient use of judicial and administrative resources.


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pecific measurespecific measures

#stablishment of greater uniformity in the +ules of )ourt#stablishment of greater uniformity in the +ules of )ourt

ith a single set of rules applicable to the upreme,ith a single set of rules applicable to the upreme,

%istrict and agistrates )ourts, unless the rules%istrict and agistrates )ourts, unless the rules

otherise expressly provide /()*+ rule 01.otherise expressly provide /()*+ rule 01. The duty to advise and consider alternatives to litigation.The duty to advise and consider alternatives to litigation.

)osts orders against legal practitioners.)osts orders against legal practitioners.

+etention of advocate2s immunity /to discourage re-+etention of advocate2s immunity /to discourage re-

litigation1.litigation1.

+estraining repetition of hopeless litigation3ider poers+estraining repetition of hopeless litigation3ider poers

re vexatious litigants.re vexatious litigants.


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pecific measurespecific measures

)ase management schemes.)ase management schemes.

4ncreased strategic importance of4ncreased strategic importance of

offers of settlement.offers of settlement.

treamlining the process of collectingtreamlining the process of collecting

and evaluating evidence.and evaluating evidence. 4nstitutionali5ation of A%+ processes 64nstitutionali5ation of A%+ processes 6

consider in detail next ee7.consider in detail next ee7.


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The duty to advise3consider A%+The duty to advise3consider A%+

*rofessional codes of conduct and rules of*rofessional codes of conduct and rules of

court impose an obligation oncourt impose an obligation on

practitioners to inform clients aboutpractitioners to inform clients about

alternatives to litigation.alternatives to litigation.

+ules of court impose an obligation on+ules of court impose an obligation on

court officials to consider appropriatenesscourt officials to consider appropriateness

of matters for A%+.of matters for A%+.


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)osts orders against practitioners /)81)osts orders against practitioners /)81

)ourts - inherent jurisdiction to aard costs)ourts - inherent jurisdiction to aard costs

against legal practitioners.against legal practitioners.

hould only be invo7ed here there has been ahould only be invo7ed here there has been a

serious dereliction of the practitioner2s duty toserious dereliction of the practitioner2s duty tothe court.the court.

*ursuit of:*ursuit of:

a hopeless! case.a hopeless! case. A case here client has no or substantially no A case here client has no or substantially no

prospect of successprospect of success

not necessarily a breach of dutynot necessarily a breach of duty$$


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)osts orders against practitioners /)81)osts orders against practitioners /)81

The court ill ma7e an order for costs here theThe court ill ma7e an order for costs here the

practitioner unreasonably! initiates or continuespractitioner unreasonably! initiates or continues

those proceedings.those proceedings.

A practitioner2s action ill be unreasonable here A practitioner2s action ill be unreasonable here

s3he has an ulterior purpose in instituting thes3he has an ulterior purpose in instituting the

proceeding 6 eg to buy time for a client about toproceeding 6 eg to buy time for a client about to

become ban7rupt - the practitioner2s actionsbecome ban7rupt - the practitioner2s actionsamount to an abuse of process:amount to an abuse of process: White IndustriesWhite Industries

v Flower & Hartv Flower & Hart "1%%# 15' ()* 1'%"1%%# 15' ()* 1'%..


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)osts orders against practitioners)osts orders against practitioners

White Industries v Flower and Hart:White Industries v Flower and Hart: proceedings had +een instituted toproceedings had +een instituted to

dela an inevita+le outcoe "nael,dela an inevita+le outcoe "nael,+ankruptc# and to achieve a +reathing+ankruptc# and to achieve a +reathing

space$space$

the plainti-.s solicitors /ere ordered tothe plainti-.s solicitors /ere ordered to

pa the defendant.s costs on anpa the defendant.s costs on an

indenit +asisindenit +asis "1%%#"1%%# 15' ()* 1'%$15' ()* 1'%$


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Costs orders against practitionersCosts orders against practitioners

9hat about apparently hopeless cases or cases9hat about apparently hopeless cases or caseshich appear to have little prospect of successhich appear to have little prospect of success

;alance of competing principles - a party is;alance of competing principles - a party isentitled to have a practitioner act for him or herentitled to have a practitioner act for him or hereven in an unmeritorious case!even in an unmeritorious case!

;ut, layers must not commence a proceeding;ut, layers must not commence a proceeding

ithout any, or any proper, consideration of theithout any, or any proper, consideration of the


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Costs orders againstCosts orders against

practitionerspractitioners

0n0n Levick v Deputy Commission of Taation Levick v Deputy Commission of Taation

23 4C( '6, /here the 4ull Ct of the23 4C( '6, /here the 4ull Ct of the

4ederal Ct of (ust$ agreed /ith vie/s in4ederal Ct of (ust$ agreed /ith vie/s in WhiteWhite

Industries! Industries! The court held that7 8 9unreasona+le conductThe court held that7 8 9unreasona+le conduct

ust +e ore than acting on +ehalf of a clientust +e ore than acting on +ehalf of a client

/ho has little or no prospect of success$ There/ho has little or no prospect of success$ There

ust +e soething akin to a+use of process:ust +e soething akin to a+use of process:that is, using the proceeding for an ulteriorthat is, using the proceeding for an ulterior

purpose or /ithout an, or an proper,purpose or /ithout an, or an proper,

consideration of the prospects of success$. consideration of the prospects of success$. 663$663$


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Costs orders against practitionersCosts orders against practitioners

)ourts have indicated that they ill consider)ourts have indicated that they ill considerhether the layer:hether the layer: had sufficient 7noledge of the case to justify pursuinghad sufficient 7noledge of the case to justify pursuing

it=it=

caused a letter before action to be ritten=caused a letter before action to be ritten= considered settlement=considered settlement=

had a proper grasp of the issues=had a proper grasp of the issues=

had turned his or her mind to the relevant la and facts=had turned his or her mind to the relevant la and facts=

had read the relevant authorities, andhad read the relevant authorities, and had advised the client that his or her chance of successhad advised the client that his or her chance of success

as very poor.as very poor.


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Note: Advocate2s immunityNote: Advocate2s immunity

;arristers and solicitor advocates have traditionall;arristers and solicitor advocates have traditionall+een iune against actions for negligence arising+een iune against actions for negligence arisingout of their presentation of cases in court$out of their presentation of cases in court$

The iunit /as recognised + the


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Advocate2s immunity3re-litigation Advocate2s immunity3re-litigation

This immunity has been abolished in:This immunity has been abolished in: England (House of Lords):England (House of Lords): Arthur J S Hall & Co Arthur J S Hall & Co

(A Firm) v Simons(A Firm) v Simons [2000] 3 WL !"3#[2000] 3 WL !"3# $e% &ealand ('ourt of eal): $e% &ealand ('ourt of eal): Lai v Lai v

ChamberlainsChamberlains [2003] 2 $&L#[2003] 2 $&L#

H' of ust: retained the immunity* +iting oli+yH' of ust: retained the immunity* +iting oli+yreasons in+luding desirability of finality of litigationreasons in+luding desirability of finality of litigation

[[ D’Orta-Ekenaike v i!toria Le"al Ai# & Anor D’Orta-Ekenaike v i!toria Le"al Ai# & Anor

[200!] H' ,2]#[200!] H' ,2]#


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Restraining vexatious & hopelessRestraining vexatious & hopeless

litigationlitigation

The court has inherent jurisdiction to stri7e outThe court has inherent jurisdiction to stri7e outvexatious claims and claims thatvexatious claims and claims that constitute aconstitute arepetition! of a hopeless case.repetition! of a hopeless case.

4n some jurisdictions, this poer is also found in4n some jurisdictions, this poer is also found instatute.statute. >exatious litigant2s statutes - aimed at vexatious>exatious litigant2s statutes - aimed at vexatious

plaintiffs representing themselves.plaintiffs representing themselves.

?oever, until recently, the legislation in some?oever, until recently, the legislation in some jurisdictions as rarely invo7ed because criteria jurisdictions as rarely invo7ed because criteriaere so stringent.ere so stringent.


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Vexatious Proceeings Act Vexatious Proceeings Act

!""# $%l!""# $%l Court has the po/er to ake an order on the applicationCourt has the po/er to ake an order on the application

of the (ttorne>@eneral or the registrar of the Court or,of the (ttorne>@eneral or the registrar of the Court or,/ith leave, a person against /ho another person has/ith leave, a person against /ho another person hasinstituted or conducted vexatious proceedings "s 5#$instituted or conducted vexatious proceedings "s 5#$

Aexatious proceeding is deBned /idel to include7 Aexatious proceeding is deBned /idel to include7

a proceeding that is an a+use of the process: anda proceeding that is an a+use of the process: and a proceeding instituted to harass or anno, to causea proceeding instituted to harass or anno, to cause

dela or detrient, or for another /rongful purpose:dela or detrient, or for another /rongful purpose:andand

a proceeding instituted or pursued /ithout reasona+lea proceeding instituted or pursued /ithout reasona+leground: andground: and

a proceeding conducted in a /a so as to harass ora proceeding conducted in a /a so as to harass oranno, cause dela or detrient, or achieve anotheranno, cause dela or detrient, or achieve another/rongful purpose$/rongful purpose$

0t covers +oth the institution and conduct of proceedings$0t covers +oth the institution and conduct of proceedings$


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Case managementCase management

):): court supervision and control ofcourt supervision and control of

cases from the time of theircases from the time of theircommencement to their disposition.commencement to their disposition.


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Case 'anagementCase 'anagement

T/o +asic odels7T/o +asic odels7

0ndividual list or docket7 case is assigned to an0ndividual list or docket7 case is assigned to an

individual judge /ho is responsi+le forindividual judge /ho is responsi+le for

anaging it until Bnal disposition$anaging it until Bnal disposition$

aster list7 cases controlled + the courtaster list7 cases controlled + the court

registr, assigned to di-erent judges at di-erentregistr, assigned to di-erent judges at di-erent

ties for di-erent purposes or ilestones$ties for di-erent purposes or ilestones$

ost courts7 Di-erential case anageentost courts7 Di-erential case anageent

"DC#, recogniEing that cases have divergent"DC#, recogniEing that cases have divergent

C reFuireents$C reFuireents$


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@ld upreme )ourt:@ld upreme )ourt: ?as a master list /ith events3landmar7s and timelines?as a master list /ith events3landmar7s and timelines

for each1for each1 ?as also created specialist lists for particular types of?as also created specialist lists for particular types of

disputesdisputes supervised case list for complex cases3cases re


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All cases are regulated by *ractice All cases are regulated by *ractice%irection.%irection.

. )t of @ld *ractice %irection 6 time out. )t of @ld *ractice %irection 6 time outto find it Bto find it B ets timelines for the progress of a litigiousets timelines for the progress of a litigious

matter once originating proceedings served.matter once originating proceedings served. +esolved proceedings are de-activated.+esolved proceedings are de-activated.


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There are conGicting vie/s as to the relativeThere are conGicting vie/s as to the relative/eight to +e given to court e-icienc and the/eight to +e given to court e-icienc and theinterests of the parties to the individualinterests of the parties to the individualcases$cases$

#ueensland v $L Holdin% ty Ltd#ueensland v $L Holdin% ty Ltd 1%%$1%%$

)ate application + the defendant to aend a)ate application + the defendant to aend a

defence /as refused + the 4ederal Court$defence /as refused + the 4ederal Court$

Hn appeal the


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'on (isk )ervices Ltd v 'ustralian *ational 'on (isk )ervices Ltd v 'ustralian *ational

+niversity +niversity 2%3


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(lthaus v (ustralia eat


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)ase management)ase management

/systematic court control1/systematic court control1

A stipulated and fixed timetable for events. A stipulated and fixed timetable for events.

anctions for non-compliance.anctions for non-compliance.

#arly listing of cases for hearing.#arly listing of cases for hearing. trict control of adjournments.trict control of adjournments.

#arly exchange of documents.#arly exchange of documents.

*re-trial hearings and settlement conferences at*re-trial hearings and settlement conferences athich directions are given.hich directions are given.

)onsideration given to use of A%+ procedures.)onsideration given to use of A%+ procedures.


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CostsCosts

+efer to the sums of money hich a party may recover+efer to the sums of money hich a party may recover

from the other side for reimbursement of expensesfrom the other side for reimbursement of expenses

incurred in litigation.incurred in litigation.

"eneral rule: costs are at the discretion of the court= but"eneral rule: costs are at the discretion of the court= but

if a case goes to trial, the loser usually pays the costs ofif a case goes to trial, the loser usually pays the costs of

the inner /costs follo the event!, ()*+ r CDE1the inner /costs follo the event!, ()*+ r CDE1

(sually assessed on a standard basis /party and party(sually assessed on a standard basis /party and party

basis1. ()*+ r FGHbasis1. ()*+ r FGH

)ourt may order costs be paid on more generous scale,)ourt may order costs be paid on more generous scale,7non as an indemnity basis /previously solicitor and7non as an indemnity basis /previously solicitor andclient basis1. ()*+ r FG0.client basis1. ()*+ r FG0.


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Costs on (nemnity )asisCosts on (nemnity )asis

To justify a costs order on an indemnityTo justify a costs order on an indemnity

basis:basis:

misconduct, obstruction, delay or abuse ofmisconduct, obstruction, delay or abuse ofprocess.process.

also used to penali5e parties ho fail toalso used to penali5e parties ho fail to

accept Ireasonable2 settlement offers.accept Ireasonable2 settlement offers.


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Offers to settle, exampleOffers to settle, example

Maitland Hospital v Fisher Maitland Hospital v Fisher /No H1 /EJJH1 HF N98+/No H1 /EJJH1 HF N98+

FHEFHE *laintiff as aarded costs on a full indemnity basis*laintiff as aarded costs on a full indemnity basis

because she recovered KHGC, GJG /plus costs1 bybecause she recovered KHGC, GJG /plus costs1 by judgment, having earlier offered to compromise for judgment, having earlier offered to compromise forKHGG,GGG /plus costs1.KHGG,GGG /plus costs1.

The purpose of the rule Lre offers of compromiseM is toThe purpose of the rule Lre offers of compromiseM is toput a premium on realistic assessment of casesB4tput a premium on realistic assessment of casesB4thas added a ne duty to the functions of legalhas added a ne duty to the functions of legal

practitioners advising litigants.practitioners advising litigants.


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)ollecting3evaluating evidence)ollecting3evaluating evidence

*rior to recent reforms*rior to recent reforms #xperts ere considered Ihired guns2.#xperts ere considered Ihired guns2. *arties might shop around for a Ifavourable opinion2, and*arties might shop around for a Ifavourable opinion2, and )ounter the other party2s expert3s by getting one or more)ounter the other party2s expert3s by getting one or more

of their on.of their on. No, primary obligation of an expert is to the court.No, primary obligation of an expert is to the court. *arties are encouraged to agree jointly to instruct*arties are encouraged to agree jointly to instruct

an expert 6 one expert only.an expert 6 one expert only.

Adverse costs order may be made if the court Adverse costs order may be made if the courtconsiders a single expert ould have Iassisted2.considers a single expert ould have Iassisted2.


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)ollecting3evaluating evidence)ollecting3evaluating evidence

#xpert evidence is given by ay of ritten report#xpert evidence is given by ay of ritten report

6 prior disclosure of report is a condition of 6 prior disclosure of report is a condition of

admissibility.admissibility.

*re-trial conferences of experts can be ordered.*re-trial conferences of experts can be ordered.

#xpert is x-examined only if re


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)hanging roles)hanging roles

udges 6 more interventionist /ithudges 6 more interventionist /ith

immunity1.immunity1.

*ractitioners 6 need to become highly*ractitioners 6 need to become highlys7illed ris7s7illed ris7 assessorsassessors /immunity in some/immunity in some

jurisdictions1. jurisdictions1.

Adversary system 6 there is less party Adversary system 6 there is less partycontrol but arguably reforms ensure duecontrol but arguably reforms ensure due

process! and natural justice!.process! and natural justice!.


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Ne s7ill sets for studentsNe s7ill sets for students

NegotiationNegotiation ediationediation

4ntervieing4ntervieing election of cases suitable for A%+election of cases suitable for A%+ +is7 analysis and assessment+is7 analysis and assessment

The giving of early advices on evidenceThe giving of early advices on evidence The giving of advice on prospects ofThe giving of advice on prospects of

success.success.

weeks 1 & 2 - reform of adversarial system

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