Principles for reform

2.51 The principles for reform in this Inquiry include five principles proposed by the Access to Justice Taskforce—accessibility, appropriateness, equity, efficiency and effectiveness;^[66] as well as three specific principles relevant to this Inquiry—proportionality, consistency and certainty. The Access to Justice Principles ‘set out the objectives of the Australian civil justice system’^[67] and provide a basis for policy-making. The referral of this Inquiry to the ALRC is an aspect of advancing
policy-making with respect to a particular aspect of the civil justice system.^[68]

2.52 A number of the inquiries referred to in Chapter 1 that have considered civil justice procedure, including discovery, have also identified key principles to underpin reform in relevant jurisdictions. There are considerable similarities of aspiration and principle, with slightly different emphasis and particularity, as well as overlap in ideas.

2.53 Together, the eight principles provide the framework for the law reform recommendations in this Report. This section considers how the principles have been expressed in the various inquiries referred to in Chapter 1 and how they inform the development of law reform responses.

Accessibility

2.54 The first principle proposed by the Access to Justice Taskforce is ‘accessibility’:

Justice initiatives should reduce the net complexity of the justice system. For example, initiatives that create or alter rights, or give rise to decisions affecting rights, should include mechanisms to allow people to understand and exercise their rights.^[69]

2.55 The VLRC similarly identified ‘accessibility’ as a desirable aspiration of the civil justice system, explaining it as follows:

Accessibility has a number of dimensions. Excessive cost, complexity or delay will undermine or prevent accessibility.

Accessibility will also depend on awareness of legal rights and of available procedural mechanisms for the enforcement of such rights. In many instances ‘injustice results from nothing more complicated than lack of knowledge’.^[70]

2.56 Lord Woolf’s review of civil procedure in England and Wales included several goals that echo the principle of accessibility—that the civil justice system should:

• be ‘understandable to those who use it’;

• ‘offer appropriate procedures at a reasonable cost’; and

• ‘deal with cases with reasonable speed’.^[71]

Appropriateness

2.57 The second principle proposed by the Access to Justice Taskforce is ‘appropriateness’:

The justice system should be structured to create incentives to encourage people to resolve disputes at the most appropriate level.

Legal issues may be symptomatic of broader non-legal issues. The justice system should have the capacity to direct attention to the real causes of problems that may manifest as legal issues.^[72]

2.58 In Lord Woolf’s goals for the civil justice system the concept of appropriateness is expressed as offering ‘appropriate procedures at a reasonable cost’ and being ‘responsive to the needs of those who use it’.^[73]

Equity

2.59 The third principle proposed by the Access to Justice Taskforce is ‘equity’:

The justice system should be fair and accessible for all, including those facing financial and other disadvantage. Access to the system should not be dependent on the capacity to afford private legal representation.^[74]

2.60 The principle of ‘equity’ concerns both fairness and financial accessibility. Other expressions of reform principles include both ideas, but arrange them differently. For example, the VLRC expressly identifies ‘affordability’ as a desirable goal^[75] and, as noted above, includes excessive cost as a barrier to ‘accessibility’. Lord Woolf included cost in his goal of offering appropriate procedures ‘at reasonable cost’. Both identify fairness as a specific goal.^[76] For the VLRC, fairness was a fundamental requirement of civil justice:

Justice requires not only ‘fair’ results but also outcomes arrived at by fair procedures. As Justice Gaudron has observed (albeit in the context of the criminal trial): ‘The requirement of fairness is not only independent, it is intrinsic and inherent.’^[77]

Efficiency

2.61 The fourth principle proposed by the Access to Justice Taskforce is ‘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. In most cases this will involve early assistance and support to prevent disputes from escalating.

The costs of formal dispute resolution and legal assistance mechanisms—to Government and to the user—should be proportionate to the issues in dispute.^[78]

2.62 In other relevant inquiries noted in Chapter 1, efficiency is expressed, for example, in goals such as:

• timeliness;^[79]

• ensuring a case is dealt with as expeditiously as is reasonably practicable and that the resources of the court are distributed fairly;^[80]

• dealing with cases with reasonable speed;^[81] and

• to facilitate the settlement of disputes.^[82]

Effectiveness

2.63 The fifth principle proposed by the Access to Justice Taskforce is ‘effectiveness’:

The interaction of the various elements of the justice system should be designed to deliver the best outcomes for users. Justice initiatives should be considered from a system-wide perspective rather than on an institutional basis.

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.^[83]

2.64 In other relevant inquiries noted in Chapter 1, effectiveness can be seen, similarly, in the goals of:

• cost-effectiveness;^[84] and

• that the system should be effective: adequately resourced and organised.^[85]

2.65 ‘Efficiency’ and ‘effectiveness’ are principles that are expressly reflected in the overarching purpose provision of the Federal Court of Australia Act, set out above.^[86]

Proportionality

2.66 Proportionality is a strong theme in the recommendations of the reviews of the civil justice system summarised in Chapter 1. Lord Woolf’s final report, for example, emphasised that ‘to preserve access to justice for all users of the system it is necessary to ensure that individual users do not use more of the system’s resources than their case requires’.^[87] In the 2009 report of his review of civil litigation costs, one of Lord Jackson’s key recommendations was that of proportionality—that the costs system should be based on legal expenses that reflect the nature and complexity of the case.^[88] The VLRC also listed proportionality as one of the desirable goals of the civil justice system:

It is increasingly accepted that the costs incurred by the parties and by the public in the provision of court resources should be ‘proportional’ to the matter in dispute. Relevant dimensions of the matter in dispute include the amount in issue or its importance. As one author has suggested, there is a widely-held belief that we must ‘match the extensiveness of the procedure with the magnitude of the dispute’.^[89]

2.67 The principle of proportionality, while a significant conceptual driver in reform of civil justice procedure, must also be used with some caution. The VLRC, for example, identified the ‘numerous dimensions to the civil justice debate about proportionality’:

Although disputes of relatively low value or importance should clearly not require disproportionate private or public resources for their resolution, there is a vexed policy issue as to whether high value civil disputes should be permitted to consume substantial publicly funded court resources, particularly where the parties in dispute are commercial leviathans involved in a commercial dispute with purely financial dimensions and where such parties can readily afford the costs of mediation, arbitration or other ‘private’ methods of resolving their dispute.

There is also an important question about whether the ‘imposition’ of ‘proportionality’ in certain contexts may favour certain litigants, including those with disproportionately greater resources.^[90]

2.68 Moreover, cases that may have significant ‘public interest’ dimensions may not be readily amenable to a test of proportionality:

in such cases, whether the likely legal costs are ‘proportionate’ to the importance and complexity of the issues in dispute will inevitably involve value judgments and subjectivity.^[91]

2.69 The difficulty with a concept of ‘proportionality’ is that, on the one hand, it embodies utilitarian ideas of the fair use of public resources; but, on the other, if it places artificial constraints on the conduct of litigation, it may ‘disadvantage particular litigants and impair the quality of justice delivered’. In this regard, the concept of proportionality reflects an inherent tension between ideas of utility and those of autonomy, where proportionality may be seen to be an ‘effectiveness’ measure at the sake of individual justice. Allens Arthur Robinson stated that:

The principal function of the civil justice system is to resolve disputes between parties efficiently and justly according to law. When considering any reform to the civil justice system, great care should be taken to ensure that the reform is carefully planned, supported by evidence and that measures intended to promote efficiency do not undermine the goal of justice according to law.^[92]

2.70 Rather than promoting proportionality as a specific principle, the review of civil justice in Hong Kong identified as an underlying objective the need ‘to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings’.^[93]

2.71 The overarching purpose provision of the Federal Court of Australia Act expressly includes proportionality as an objective. Section 37M(2)(e) specifies as an objective: ‘the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute’.

Consistency

2.72 A specific principle of significance is that the civil justice system should be consistent in the application of laws and in practice. The VLRC identified ‘consistency and predictability’ as desirable goals of the civil justice system:

Inconsistency and unpredictability in the civil justice system are highly undesirable for a variety of obvious reasons. Conduct in the community generally, by individuals, entities and governments, is regulated according to perceptions of the applicable law and predictions about the likely outcome of litigation.^[94]

2.73 While ‘consistency’ may be considered an element of ‘equity’ in the Access to Justice Principles—as an element of fairness at a broad level—it emerged as a matter of particular relevance in this Inquiry. Concerns were expressed, in particular, about inconsistency with respect to judicial case management practice. The ALRC considers, therefore, that it is a significant framing principle for law reform recommendations in relation to discovery of documents. Consistency also reflects the overall aim of all the Access to Justice Principles in ‘delivering fair and appropriate outcomes, and maintaining and supporting the rule of law’.^[95]

Certainty

2.74 Certainty is a complementary principle to consistency—in that issues of uncertainty may lead to inconsistency. Lord Woolf’s report included the goal that the system should ‘provide as much certainty as the nature of particular cases allows’.^[96] The ALRC considers that certainty is also a significant framing principle for law reform recommendations in the context of discovery of documents. In particular, if the expectations, both of parties and of the court, are made clear, greater consistency in practice can be facilitated. Certainty may also be considered an aspect of ‘accessibility’, assisting parties to understand and exercise their rights, and also the expectations of them in civil litigation.

The use of reform principles

2.75 The eight reform principles identified above provide a policy framework for the consideration of specific reform recommendations. As overarching principles they assisted the ALRC in the evaluation of potential alternatives for reform.

2.76 In identifying principles to provide a framework for reform, caution needs to be expressed, however, that the principles need to be considered as a whole, as undue emphasis on one may distort the policy outcome. As noted by the Public Interest Advocacy Centre:

the challenge in reforming the discovery process is to ensure that the drive for improving the efficiency of the process does not create barriers to individuals accessing justice.^[97]

2.77 Throughout this Inquiry the ALRC used the eight reform principles as the basis for analysing the evidence with respect to the various questions and proposals set out in the Consultation Paper, to inform the reform response presented in this Report and to improve the practical operation and effectiveness of discovery of documents in federal courts.