Framework for reform

Development of the reform response

Law reform recommendations cannot be based upon assertion or assumption and need to be anchored in an appropriate evidence base. As the ALRC commented in the Managing Justice report:

Deprecation of the legal system and failed efforts at reform often proceed on the basis of anecdote and assumption. This can include both untested and unfounded criticism of some current practices, procedures and institutions, as well as uncritical acceptance of alternatives.^[9]

Because of the headlines they generate, cases like C7, and other mega-litigation, may distort an assessment of discovery and the development of reform recommendations in consequence.

The process of building the evidence base in each ALRC inquiry depends on two principal variables: the nature and scope of the inquiry, and the timeframe in which it is to be discharged. The timeframe may put limits on the methodologies that may be used to answer the research questions in a particular inquiry—limiting the development of the evidence base. In such cases, the reform recommendations have to be modified accordingly.

A major aspect of building the evidence base to support the formulation of ALRC recommendations for reform is community consultation, acknowledging that widespread community consultation is a hallmark of best practice law reform.^[10] Under the terms of its constituting Act, the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of a reference.^[11]

The ALRC is committed to ensuring that all stakeholders and interested members of the public have an opportunity to participate in ALRC inquiries. In undertaking this Inquiry, a multi-faceted consultation strategy was required—using a combination of face-to-face consultations and roundtable discussions, online communication tools, and a Consultation Paper. In addition, two seminars were held: one in Melbourne focused on the conduct of lawyers, and the other in Sydney, introduced by the Hon Chief Justice Patrick Keane of the Federal Court, discussed the Inquiry as a whole.

Forty-seven consultations were conducted.^[12] Internet communication tools were also integrated into the consultation process, to provide information and obtain comment. A monthly e-newsletter highlighted an ‘issue in focus’ and the comments received provided additional input. By the end of the Inquiry there were 218 subscribers to the e-newsletter and 30 submissions were received in response to the Consultation Paper.^[13]

Principles for reform

The recommendations in this Report are underpinned by eight principles or policy aims: the five ‘Access to Justice Principles’ proposed by the Access to Justice Taskforce, and three additional reform principles reflective of the particular context of this Inquiry:

(1) Accessibility—justice initiatives should reduce the net complexity of the justice system.

(2) Appropriateness—the justice system should be structured to create incentives to encourage people to resolve disputes at the most appropriate level.

(3) Equity—the justice system should be fair and accessible for all, including those facing financial and other disadvantage and access should not be dependent on the capacity to afford private legal representation.

(4) Efficiency—the justice system should deliver outcomes in the most efficient way possible, noting that the greatest efficiency can often be achieved without resorting to a formal dispute resolution process, including through preventing disputes; and the costs of formal dispute resolution and legal assistance mechanisms—to Government and to the user—should be proportionate to the issues in dispute.

(5) Effectiveness—the interaction of the various elements of the justice system should be designed to deliver the best outcomes for users; and all elements of the justice system should be directed towards the prevention and resolution of disputes, delivering fair and appropriate outcomes, and maintaining and supporting the rule of law.

(6) Proportionality—the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(7) Consistency—the civil justice system should be consistent in the application of laws and in practice.

(8) Certainty—the civil justice system should provide as much clarity of expectations, both of parties and of the court, as the nature of particular cases allows.

The principles form, at a policy level, the foundation of the interlinking recommendations in this Report.

Focus of the recommendations

Having considered carefully the views, concerns and feedback expressed during consultations and in submissions, and having conducted its own research and deliberations, the ALRC has developed and presents 27 policy recommendations for improving the practical operation and effectiveness of discovery of documents in federal courts.

The focus of the recommendations is principally on the Federal Court. The recommendations target a key theme in submissions and consultations that, to the extent that there is a problem in relation to discovery of documents in federal courts, it lies principally in the area of practice. Any uncertainty as to what is expected of parties and any inconsistency in case management by judges increases the potential for litigation to become protracted and costs to balloon.

In this Report, the ALRC’s recommendations are based on a model that is ‘facilitative’, emphasising the role of the judge in facilitating the resolution of the matter through active case management to offset what some argue is the problem of the adversarial nature of proceedings—or overly adversarial practice. Embracing a facilitative model continues the pattern of civil procedure reform identified in the ALRC’s Managing Justice inquiry^[14] and reinforced by trends since—for example, through the introduction of s 37M of the Federal Court of Australia Act.

The ALRC considers that the most effective way to facilitate the resolution of disputes in the Federal Court is through robust case management. Such a model preserves the discretion of the judge while, at the same time, introducing greater clarity of expectations in relation to discovery. A key focus of the recommendations is on reinforcing the flexibility that Federal Court judges have in the case management of litigation so that, for example, any discovery regime can be tailored to suit the particular issues in each case. To achieve this, the ALRC makes a number of recommendations for reform of the Federal Court of Australia Act and the Federal Court Rules (Cth), supported by a suite of practice notes.

Practice notes, issued by the Chief Justice, are flexible and responsive tools for guiding practice in the Federal Court. Practice notes can set out clearly what the Court expects of practitioners, through which greater consistency of outcome may be achieved. Practice notes for participants are complemented by judicial education and training directed towards reinforcing judicial understanding of powers and encouraging their more consistent application. Recommendations for reform focus on the educative function of practice notes, to bring to the attention of parties—and to encourage the use of—the various ways in which discovery may be managed effectively and efficiently in proceedings. This provides guidance on the best practices of the parties, which may also be a valuable resource for judges in scrutinising applications and submissions. These reforms are also supported by recommendations for legislative amendments—to governing Acts and court rules—that provide statutory powers to facilitate the implementation of other reforms and to drive cultural change.