Submission to the Attorney-General's Department in response to the Federal Civil Justice System Strategy Paper
(8 April 2004)
1. The Australian Law Reform Commission (ALRC) makes the following submission in response to the Department's Federal Civil Justice System Strategy Paper (Strategy Paper) released for public comment in March 2004.
2. The ALRC's inquiry into the federal civil justice system was a watershed in considering the practices and processes of the federal courts and tribunals. The research undertaken as part of the inquiry allowed, for the first time, the development of recommendations for reform that were based on empirical evidence, rather than anecdote. Since the release of ALRC 89 Managing Justice: A Review of the Federal Civil Justice System (2000), there has been a great deal of change in the federal civil justice system. Many of these changes have been greatly influenced, if not directly caused, by the Managing Justice report and the series of consultations undertaken with the relevant departments, courts and tribunals and practitioners throughout the inquiry. A particularly significant change has been the improvement of technology and practice for collecting data about how those systems operate, which in turn provide on-going evidence upon which to base continuous improvements.
3. The ALRC sees the Department's Strategy Paper as the next major step in guiding reform of the civil justice system. Much of the change must, of necessity, take place within the courts and tribunals themselves. However, it is important that the Australian Government provide leadership and support for reform initiatives through a whole-of-government approach, legislative change (where this is required), and carefully targeted financial support.
4. The ALRC notes that the Strategy Paper seeks to further a number of recommendations from ALRC 89 Managing Justice, as well as ALRC 92 The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation (2001) and ALRC 75 Costs Shifting--Who Pays For Litigation (1995). While the ALRC keenly anticipates implementation of these recommendations, it wishes to highlight a number of other matters related to these ALRC reports and the Strategy Paper.
Events-based fee scales
5. The Strategy Paper recommends that the High Court, Federal Court and Family Court continue to explore the potential for the implementation of events-based scales (Recommendation 30). Managing Justice strongly recommended the implementation of events-based scales.[1] While its is noted that the Government Response indicated that the Government considers the issue is ultimately one for the courts,[2] the ALRC considers there is still a role for the Attorney-General's Department to play through continued involvement in discussions with the courts, such as its involvement in the working group examining events-based fee scales in family law.
6. Another important role for the Australian Government is in relation to the Federal Costs Advisory Committee. In Managing Justice the ALRC noted that, if events-based fee scales were to be introduced, it was important to ensure that they are reviewed regularly-annually in accordance with the consumer price index, and a more thorough triennial review of currency and effectiveness-in consultation with experts on legal fees. To this aim, the ALRC recommended the enhancement of the role and resources of the Federal Costs Advisory Committee, in particular to increase its expertise on costs and econometrics.[3] In the Government Response to Managing Justice[4] it was noted that consideration on this recommendation was deferred pending the outcome of current discussions on event-based fee scales. However, events-based fee scales are already in operation in the Federal Magistrates Court. The ALRC considers that the role of the Federal Costs Advisory Committee, or some other method of regular review of events-based fee scales, needs to be raised as part of the current discussions on the future of the civil justice system.
Legal assistance schemes
7. The ALRC supports the Strategy Paper's Recommendation 11 to look at expanding the Court Support networks to all federal courts. The ALRC made specific recommendations in Managing Justice calling for the expansion of the Family Law Assistance Program and Court Network schemes on a national basis.[5] These recommendations had been supported in many submissions and consultations undertaken as a part of the ALRC inquiry.[6] A similar recommendation also was made, at a later date, in the Family Pathways report.
Conflict of interest and legal aid commissions
8. In Managing Justice the ALRC recommended that federal and state governments should legislate to clarify that conflict of interest in legal aid commission cases occurs only where casework is undertaken for both clients.[7] The intention of the recommendation was to provide greater flexibility for legal aid commissions to provide advice and other limited services without affecting the ability to act for the opposing party where no confidential information has been, or is at risk of being, disclosed.
9. In the Government Response to Managing Justice, the Australian Government indicated it does not support Commonwealth legislation with respect to conflict of interest in Commonwealth law matters funded through legal aid commissions.[8]
10. The same problems of conflict of interest within legal aid commissions, particularly in relation to duty schemes, was identified in the Strategy Paper. While the Strategy Paper encourages continuing consideration of the issue within the legal aid commissions, it notes there may be a need for legislative amendment in some States and Territories.
11. Notwithstanding the Government's decision not to legislate in relation to Commonwealth law matters, the ALRC considers there is a role for the Australian Government in taking leadership on this issue, perhaps by placing it on the agenda of the Standing Committee of Attorneys-General (SCAG). This approach may be necessary to progress the Strategy Paper's Recommendation 13 supporting the further development of duty lawyer schemes in federal courts and would also be consistent with the Strategy Paper's general desire to overcome existing ethical concerns regarding discrete task representation-particularly in relation to legal aid commissions and pro bono work.
Frivolous and vexatious Family Court appeals
12. The Strategy Paper makes a number of recommendations towards curbing vexatious and frivolous actions, and those involving an abuse of process. In Managing Justice, the ALRC made a specific recommendation to permit a single judge in an appeal to the Family Court to exercise the powers to stay or dismiss proceedings where: no reasonable cause of action is disclosed; the proceeding is frivolous or vexatious; or the proceeding is an abuse of the process of the court. The Australian Government has accepted this recommendation, and noted it would be included in a future family law amendment bill.[9] The ALRC considers that it would be appropriate to raise this issue in the Civil Justice Strategy.
13. During consultations on this issue, a suggestion was made to the ALRC that the right of appeal from the exercise of a decision to stay or dismiss an appeal on the above grounds should be restricted. The ALRC was reluctant to recommend limiting appeal rights in the absence of further consideration of the implications of such a move.[10]
14. Limitation of appeal rights (in relation to the Federal Court only) was also considered by the ALRC in the review of the Judiciary Act 1903 (Cth) in relation to the right of appeal to an intermediate appellate court.[11] The contrast was made between the interlocutory appeals, which are by leave of the Court, and other appeals to the Full Court of the Federal Court, where the first appeal is as of right. The ALRC's ultimate recommendation was that the absence of empirical data made it difficult to support radical change at that time, but that there should be an expansion of the categories of procedural appeal allowable only by leave of the Court, and that the Attorney-General's Department should review the issue within five years (ie before 2006). It is particularly interesting to note that consultations and submissions, with which the ALRC agreed, strongly supported the view that the Federal Court's decision to grant or refuse leave to appeal should itself be immune from appeal. It was seen that the possibility of further appeal would protract a process that has been introduced for the purpose of streamlining the appellate system.
15. Given that the Australian Government has now accepted the Managing Justice recommendation to provide the powers to stay or dismiss where no reasonable cause of action is disclosed, the proceeding is frivolous or vexatious, or the proceeding is an abuse of the process of the court, the ALRC suggests that the Attorney-General's Department give further consideration to whether the right of appeal from such a decision should be limited.
Some issues related to the Administrative Appeals Tribunal
16. While acknowledging the significant role of tribunals in the federal civil justice system, the Strategy Paper focuses on the federal courts.
17. Managing Justice dealt in detail with federal tribunals, and in particular the Administrative Appeals Tribunal (AAT). A number of the recommendations were made in anticipation of the establishment of the Administrative Review Tribunal, which the Government has announced will not now proceed with in the current Parliament. However, other recommendations, which require legislative action, relate specifically to the operations of the AAT and continue to be relevant.
18. In the Government Response to Managing Justice, it was indicated that the following recommendations are under consideration. The ALRC highlights these recommendations and suggests it may be appropriate to progress them as a part of the Civil Justice System Strategy.
Recommendation 128. Arrangements for costs in the Administrative Appeals Tribunal's compensation jurisdiction, under which respondent agencies pay legal costs of successful applicants, should be reviewed to allow payment on a successful application for reconsideration of a compensation decision. Such costs should be a capped amount to be paid where the lawyer advises and prepares the application for reconsideration. The costs should be paid only if the matter is resolved at this stage. Such sums for legal costs should not be added to the costs claimed at the conclusion of any subsequent review tribunal proceeding, except for the costs of medical reports subsequently relied on.
Recommendation 129. Where applicants have failed without good reason to comply with tribunal directions, any additional or wasted sums should be able to be deducted from costs recovered by the successful applicant.
Recommendation 134. Legislation should expressly provide federal review tribunals with the power to require parties to agree to the instruction of a single expert for the case, where the tribunal considers this appropriate. In such circumstances, additional expert evidence on the same matter should be permitted only in exceptional circumstances.
Recommendation 135. In those review jurisdictions where successful applicants are able to obtain costs, where the tribunal directs parties to agree on a single expert, the costs of additional experts consulted by the applicant should not be recoverable.
Recommendation 136. Legislation governing the Administrative Appeals Tribunal and the new Administrative Review Tribunal specifically should require prompt disclosure to applicants of reports of all the respondents' medical experts.
Costs Shifting
19. The ALRC welcomes the Strategy Paper's reference to recommendations relating to disciplinary and case management cost orders from ALRC 75 Costs Shifting. This represents the first formal response to any of the recommendations in the 1995 report.
20. The ALRC considers that other recommendations in the Costs Shifting report should be revisited as a part of the Federal Civil Justice Strategy, particularly those in relation to:
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public interest litigation;
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self-represented litigants; and
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costs allocation agreements.
The Judicial Power of the Commonwealth
21. The ALRC welcomes the Strategy Paper's support for recommendations from ALRC 92 The Judicial Power of the Commonwealth, and in particular the push for implementation of the recommendations in relation to special leave applications. The ALRC looks forward to the full Government Response to this comprehensive report.
[1] ALRC 89 Managing Justice: A Review of the Federal Civil Justice System (2000), rec 33.
[2] The Department’s involvement with the working group was noted in the Government Response to Recommendations of Australian Law Reform Commission Report Managing Justice: A Review of the Federal Civil Justice System (June 2003).
[3] ALRC 89 Managing Justice: A Review of the Federal Civil Justice System (2000), rec 34.
[4] Government Response to Recommendations of Australian Law Reform Commission Report Managing Justice: A Review of the Federal Civil Justice System (June 2003).
[5] See ALRC 89 Managing Justice: A Review of the Federal Civil Justice System (2000), recs 58 and 59. Recommendation 59 focused on expansion of the Court Network scheme to all registries of the Family Court of Australia. The Federal Magistrates Court had not been established at the time of making the recommendations.
[6] In particular, those supporting expansion of the Court Network scheme included the Victorian Bar, the Family Court of Australia, Redfern Legal Centre, the Victorian Legal Services Ombudsman and National Legal Aid.
[7] ALRC 89 Managing Justice: A Review of the Federal Civil Justice System (2000), rec 54.
[8] The Response went on to say that it ‘is a matter for State governments whether they choose to implement the recommendation in relation to State law matters.’
[9] Government Response to Recommendations of Australian Law Reform Commission Report Managing Justice: A Review of the Federal Civil Justice System (June 2003).
[10] ALRC 89 Managing Justice: A Review of the Federal Civil Justice System (2000), [8.284].
[11] See in particular ALRC 92 The Judicial Power of the Commonwealth: Review of the Judiciary Act 1903 and Related Legislation (2001), [20.42]–[20.83] and rec 20–4.