A Justice System in

Crisis - reform
Civil Procedure, 151
Weeks 1 & 2

Need for reform

The problems - a system of litigation in crisis,

crippled by excessive delays and costs.

The reasons:

Over dependence on party-control

Absence of judicial responsibility for effective use

of resources

Over dependence on an all-embracing trial.

General trends in reforms: aims

Eliminating delays in the civil litigation

process.
Keeping the costs of proceedings
proportionate to the subject matter of
disputes.
Ensuring cost effective case preparation.
Encouraging appropriate and timely
settlement of disputes.

General trends in reforms: aims

Diverting matters to more suitable dispute resolution

processes.

Facilitating just, efficient determination of the real issues in

dispute objects clause

UCPR: The purpose of these rules is to

facilitate the just and expeditious resolution

of the real issues in civil proceedings at a
minimum of expense (rule 5).

Ensuring efficient use of judicial and administrative resources.

Specific measures

Establishment of greater uniformity in the Rules of Court

with a single set of rules applicable to the Supreme,
District and Magistrates Courts, unless the rules
otherwise expressly provide (UCPR rule 3).

The duty to advise and consider alternatives to litigation.

Costs orders against legal practitioners.

Retention of advocates immunity (to discourage relitigation).

Restraining repetition of hopeless litigation/wider powers

re vexatious litigants.

Specific measures

Case management schemes.

Increased strategic importance of

offers of settlement.

Streamlining the process of collecting

and evaluating evidence.

Institutionalization of ADR processes

consider in detail next week.

The duty to advise/consider ADR

Professional codes of conduct and rules of

court impose an obligation on
practitioners to inform clients about
alternatives to litigation.
Rules of court impose an obligation on
court officials to consider appropriateness
of matters for ADR.

Costs orders against practitioners (CL)

Courts - inherent jurisdiction to award costs

against legal practitioners.
Should only be invoked where there has been a
serious dereliction of the practitioners duty to
the court.
Pursuit of:

a hopeless case.
A case where client has no or substantially no
prospect of success

not necessarily a breach of duty.

Costs orders against practitioners (CL)

The court will make an order for costs where the

practitioner unreasonably initiates or continues
those proceedings.

A practitioners action will be unreasonable where

s/he has an ulterior purpose in instituting the
proceeding eg to buy time for a client about to
become bankrupt - the practitioners actions
amount to an abuse of process: White Industries
v Flower & Hart (1998) 156 ALR 169.

Costs orders against practitioners

White Industries v Flower and Hart:

proceedings had been instituted to
delay an inevitable outcome (namely,
bankruptcy) and to achieve a breathing
space.
the plaintiffs solicitors were ordered to
pay the defendants costs on an
indemnity basis (1998) 156 ALR 169.

Costs orders against practitioners

What about apparently hopeless cases or cases

which appear to have little prospect of success?

Balance of competing principles - a party is

entitled to have a practitioner act for him or her
even in an unmeritorious case
But, lawyers must not commence a proceeding
without any, or any proper, consideration of the
question whether the proceeding has any
prospect of success at all.

Costs orders against

practitioners

In Levick v Deputy Commission of Taxation

[2000] FCA 674, where the Full Ct of the
Federal Ct of Aust. agreed with views in White
Industries.
The court held that: unreasonable conduct
must be more than acting on behalf of a client
who has little or no prospect of success. There
must be something akin to abuse of process;
that is, using the proceeding for an ulterior
purpose or without any, or any proper,
consideration of the prospects of success. [ 44].

Costs orders against practitioners

Courts have indicated that they will consider

whether the lawyer:

had sufficient knowledge of the case to justify pursuing

it;
caused a letter before action to be written;
considered settlement;
had a proper grasp of the issues;
had turned his or her mind to the relevant law and facts;
had read the relevant authorities, and
had advised the client that his or her chance of success
was very poor.

Note: Advocates immunity

Barristers and solicitor advocates have traditionally

been immune against actions for negligence arising
out of their presentation of cases in court.
The immunity was recognised by the High Court of
Australia in Giannarelli v Wraith (1988) 165 CLR 543.
Reasons, policy-based: to discourage litigation
against lawyers by unsuccessful and unhappy
litigants.
A barrister owes the client (not the solicitor) a duty to
exercise reasonable care and skill in providing outof-court professional services such as giving advice
and drafting documents.
No such duty arises in relation to in-court services.

Advocates immunity/re-litigation

This immunity has been abolished in:

England (House of Lords): Arthur J S Hall & Co
(A Firm) v Simons [2000] 3 WLR 543.
New Zealand (Court of Appeal): Lai v
Chamberlains [2003] 2 NZLR.

HC of Aust: retained the immunity, citing policy

reasons including desirability of finality of litigation
[DOrta-Ekenaike v Victoria Legal Aid & Anor
[2005] HCA 12].

Restraining vexatious & hopeless

litigation

The court has inherent jurisdiction to strike out

vexatious claims and claims that constitute a
repetition of a hopeless case.
In some jurisdictions, this power is also found in
statute.
Vexatious litigants statutes - aimed at vexatious
plaintiffs representing themselves.
However, until recently, the legislation in some
jurisdictions was rarely invoked because criteria
were so stringent.

Vexatious Proceedings Act

2005 (Qld)

Court has the power to make an order on the application

of the Attorney-General or the registrar of the Court or,
with leave, a person against whom another person has
instituted or conducted vexatious proceedings (s 5).
Vexatious proceeding is defined widely to include:
a proceeding that is an abuse of the process; and
a proceeding instituted to harass or annoy, to cause
delay or detriment, or for another wrongful purpose;
and
a proceeding instituted or pursued without reasonable
ground; and
a proceeding conducted in a way so as to harass or
annoy, cause delay or detriment, or achieve another
wrongful purpose.
It covers both the institution and conduct of proceedings.

Case management

CM: court supervision and control of

cases from the time of their
commencement to their disposition.

Case Management

Two basic models:

Individual list or docket: case is assigned to an
individual judge who is responsible for
managing it until final disposition.
Master list: cases controlled by the court
registry, assigned to different judges at different
times for different purposes or milestones.
Most courts: Differential case management
(DCM), recognizing that cases have divergent
CM requirements.

Case Management

Qld Supreme Court:

Has a master list (with events/landmarks and timelines

for each)
Has also created specialist lists for particular types of
disputes

supervised case list for complex cases/cases requiring more

than 5 days trial, managed by a supervised case list judge
commercial cases list where cases are managed by a
commercial list judge.

All Federal Court registries: individual docket system

cases randomly assigned to a particular judge who
manages the case until disposition gives it continuity and
eliminates the need to explain the case afresh each time.

Case Management

All cases are regulated by Practice

Direction.
S. Ct of Qld Practice Direction time out
to find it

Sets timelines for the progress of a litigious

matter once originating proceedings served.

Resolved proceedings are de-activated.

Case Management

There are conflicting views as to the relative

weight to be given to court efficiency and the
interests of the parties to the individual
cases.

Queensland v JL Holding Pty Ltd 1997.

Late application by the defendant to amend a

defence was refused by the Federal Court.
On appeal the High Court allowed the
amendment Justice for the parties was the
paramount consideration. Case
management ... a relevant consideration.

Case Management

Aon Risk Services Ltd v Australian National

University [2009] HCA 27

More weigh given to justice for the public as a

whole ie substantial public interest in reducing
cost and delay so other litigants have timely access
to courts
Parties have choices as to what claims are to be
made and how they are to be framed. But limits will
be placed upon their ability to effect changes to
their pleadings, particularly if litigation is advanced.

Case Management
Althaus v Australia Meat Holdings Pty Ltd [2009] QSC 05 facts
Pl. made 13 attempts to plead their case (statement of claim).
Needed leave to try again.
Enough was enough
serial failures to articulate their case; inferred that they were
incapable of doing so.
More than 4 yrs since proceedings has started, 15 yrs since
events complained of.
Not yet at a point where the def was required to respond.
Chesterman J [74] In a very real sense the plaintiffs
persistent, incompetent and ineffectual attempts to describe a
case against the defendants is an abuse of process. It is not, I
think, an exaggeration to describe the conduct of the action by
the plaintiffs as scandalous. There is a responsibility on plaintiffs
and those who advise them to put their cases in proper form and
get on with them. .. The time for indulgence has passed. They
must suffer the consequence of their own failures.

Case management
(systematic court control)

A stipulated and fixed timetable for events.

Sanctions for non-compliance.
Early listing of cases for hearing.
Strict control of adjournments.
Early exchange of documents.
Pre-trial hearings and settlement conferences at
which directions are given.
Consideration given to use of ADR procedures.

Costs

Refer to the sums of money which a party may recover

from the other side for reimbursement of expenses
incurred in litigation.
General rule: costs are at the discretion of the court; but
if a case goes to trial, the loser usually pays the costs of
the winner (costs follow the event, UCPR r 681)
Usually assessed on a standard basis (party and party
basis). UCPR r 702
Court may order costs be paid on more generous scale,
known as an indemnity basis (previously solicitor and
client basis). UCPR r 703.

Costs on Indemnity Basis

To justify a costs order on an indemnity

basis:
misconduct, obstruction, delay or abuse of
process.
also used to penalize parties who fail to
accept reasonable settlement offers.

Offers to settle, example

Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR

721

Plaintiff was awarded costs on a full indemnity basis

because she recovered $206, 090 (plus costs) by
judgment, having earlier offered to compromise for
$200,000 (plus costs).

The purpose of the rule [re offers of compromise] is to

put a premium on realistic assessment of casesIt
has added a new duty to the functions of legal
practitioners advising litigants.

Collecting/evaluating evidence

Prior to recent reforms

Experts were considered hired guns.

Parties might shop around for a favourable opinion, and
Counter the other partys expert/s by getting one or more
of their own.

Now, primary obligation of an expert is to the court.

Parties are encouraged to agree jointly to instruct
an expert one expert only.
Adverse costs order may be made if the court
considers a single expert would have assisted.

Collecting/evaluating evidence

Expert evidence is given by way of written report

prior disclosure of report is a condition of
admissibility.

Pre-trial conferences of experts can be ordered.

Expert is x-examined only if requested.

Some courts the court can appoint an expert .

Changing roles

Judges more interventionist (with

immunity).

Practitioners need to become highly

skilled risk assessors (immunity in some
jurisdictions).

Adversary system there is less party

control but arguably reforms ensure due
process and natural justice.

New skill sets for students

Negotiation
Mediation
Interviewing
Selection of cases suitable for ADR
Risk analysis and assessment
The giving of early advices on evidence
The giving of advice on prospects of
success.