Bills Digest no. 14 2009–10
Access to Justice (Civil Litigation Reforms) Amendment Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date introduced: 22 June 2009
House: House of Representatives
Portfolio: Attorney-General
Commencement: sections 1–3: on Royal Assent; Schedules 1 and 2: 28th day after date of Royal Assent; Schedule 3: later of either 28th day
after date of Royal Assent or immediately after commencement of Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 Schedule 17
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
The Access to Justice (Civil Litigation
Reforms) Amendment Bill 2009 (the Bill) proposes to amend the Federal Court
of Australia Act 1976 (Federal Court Act), Family Law Act 1975 (Family Law Act) and Federal Magistrates Act 1999 (Federal Magistrates
Act).
The Bill proposes to amend the Federal Court Act in relation
to case management powers and appeals processes for civil proceedings in the
Federal Court of Australia (the Federal Court) in an effort to ensure efficient
administration of such proceedings.
The Bill also proposes to amend the Federal Court, Family
Law and Federal Magistrates Acts in relation to powers of the Chief Judges and
Chief Magistrates of the respective Courts in effectively administering the
business of those Courts and in managing judicial health and education services.
Together with the High Court of Australia (the High Court),[1] the Federal, Family and Federal Magistrates Courts are the principal federal
courts in Australia.[2]
The Federal Court was established by the Federal Court Act
and started operating on 1 February 1977.[3] It sits in each state and, whenever necessary, in the Australian Capital
Territory and Northern Territory.[4]
The Federal Court is constituted by a Chief Judge and other
federal judges appointed under the Federal Court Act, in accordance with
Chapter III of the Commonwealth Constitution.[5]
Its original jurisdiction is conferred by Commonwealth laws
and includes matters such as:
- corporations
- tax
- trade practices, and
- industrial relations.[6]
In addition, the Federal Court hears appeals from:
- single Judges of the Federal Court
- non-family law decisions of the Federal Magistrates Court, and
- certain decisions of the state and territory Supreme Courts.
The Family Court hears family law and child support disputes,
and hears appeals from decisions relating to such matters, in all states and
territories within Australia except in Western Australia.[7]
The Federal Magistrates Court was established by the Federal
Magistrates Act and started operating in July 2000.[8] The Court is constituted of the Chief Federal Magistrate and federal
magistrates appointed under the Federal Magistrates Act, in accord with Chapter
III of the Commonwealth Constitution.[9]
It was established to deal with the less complex matters
arising under family and other federal laws, including:
- consumer protection, and
- workplace relations.[10]
The aim of the Federal Magistrates Court was to reduce the
workloads of the Federal and Family Courts, by providing a more simple and accessible
alternative to taking action in those Courts.[11] However, as mentioned below, it should be noted that the Government intends to
abolish the Federal Magistrates Courts altogether as part of an overall federal
court restructure to reduce litigation costs and facilitate faster resolution
of disputes.[12]
The Bill proposes that certain alternative dispute
resolution (ADR) processes be used in federal civil proceedings as a means by
which disputes may be resolved more cost-effectively and efficiently.
ADR is a general term referring to processes other than
litigation, used to assist people to resolve various disputes.[13] It is important to note that there are different types of such processes and
particular types of ADR processes suit particular types of disputes.
It is noted that on 13 June 2008, the Attorney-General asked
the National Alternative Dispute Resolution Advisory Council (NADRAC) to
inquire into the use of ADR in civil proceedings, and in particular, to consider
the following:
- whether mandatory requirements to use ADR should be introduced
- other changes to cost structures and civil procedures to provide
incentives to use ADR more and to remove practical and cultural barriers to the
use of ADR both before commencement of litigation and throughout the litigation
process
- the potential for greater use of ADR processes and techniques by
courts and tribunals to enhance court and tribunal process, including by
judicial officers, and
- whether there should be greater use of private and community
based ADR services and how to ensure that such services meet appropriate
standards.[14]
NADRAC is due to report by 30
September 2009.
Issues relating to cost efficiencies of and access to the federal
court system have been on the agenda of various federal governments over time.[15]
For example, in September 1997, the then Attorney-General
requested that the Australian Law Reform Commission (the ALRC) review the
federal civil litigation system, of which a report was tabled in Parliament on
17 February 2000.
The ALRC was asked to consider ‘the need for a simpler,
cheaper and more accessible legal system’ with particular attention to issues
relating to matters including excessive costs and delay. Specific matters about
which the ALRC was asked to consider included:
- civil litigation and administrative law procedures in civil code
jurisdictions
- the procedures and case management schemes used by courts and
tribunals to control the conduct of proceedings that come before them
- the relationship between courts and tribunals
- mechanisms for identifying the issues in dispute
- means of gathering, testing and examining evidence
- the use of court-based and community alternative dispute
resolution schemes
- the significance of legal education and professional training to
the legal process
- the training, functions, duties and role of judicial officers as
managers of the litigation process
- appellate court processes.[16]
As part of this review, the ALRC examined various federal courts
and tribunals, including the Federal and Family Courts. Although somewhat
dated, the ALRC report continues to be pertinent in relation to attempts to
improve the efficiency of the federal civil court system.[17]
In addition, in the course of time since its inception, the
Federal Magistrates Court has become the largest federal court in Australia, in
terms of both filings and judicial officers.[18] Concerns were expressed about the Federal Magistrates Court’s governance and
resourcing, such as duplication of services and litigants’ confusion as to
where to commence proceedings.[19]
Consequently, the Attorney-General’s Department, in
consultation with Des Semple, conducted a review of family law services
provided by both the Family and Federal Magistrates Courts. On 28 November
2008, the Attorney-General, Robert McClelland, released a report and
consultation paper about reforming such services.[20]
On 5 May 2009, the Attorney-General, Mr Robert McClelland,
announced a restructure of the Federal Courts with the objective of improved
access to justice.[21]
Mr McCllelland introduced the Bill into Parliament on 22
June 2009, which is part of the Government’s agenda to improve access to
justice.[22]
In light of the long-term concerns regarding access to
justice and the costs of litigation in the federal court system, as mentioned
above, the question remains of why the Government has introduced this Bill now?
It is noted that in his second reading speech, Mr McClelland
referred to relatively recent high profile cases in which legal costs were
enormous.[23] As an example, he quoted Justice Sackville’s statement in the C7 case:
It is difficult to understand how the costs incurred by the
parties can be said to be proportionate to what is truly at stake, measured in
financial terms. In my view, the expenditure of $200 million (and counting) on
a single piece of litigation is not only extraordinarily wasteful, but borders
on the scandalous.[24]
It is also noted Justice Sackville estimated that the legal costs
spent on that case was about $200 million, describing the case as an example of
‘mega-litigation’.[25]
Importantly, it is argued that parties to litigation only
contribute a portion of the total costs, with public monies being spent on the
remaining amount.[26] The Government states that it wants to ensure that public resources spent on
federal litigation is proportionate to the issues in dispute.[27]
The Bill, itself, has been referred to the Senate Legal and
Constitutional Affairs Legislation Committee (the Legislation Committee) for
inquiry and report by 17 September 2009.[28]
In addition, the Senate Legal and Constitutional Affairs
References Committee (the References Committee) is currently conducting
inquiries into both:
- access to justice, and
- Australia’s judicial system and the role of judges.[29]
The References Committee must report on both inquiries by 17
August 2009.
It is noted that two of the Terms of References for the
References Committee’s inquiry into access to justice includes:
- the costs of delivering justice, and
- what can be done to reduce the length
and complexity of litigation, and to improve efficiency.[30]
As at 7 August 2009, only one substantive submission had been
posted onto the website of the Legislation Committee’s inquiry into the Bill
itself—by the Law Council of Australia (the Law Council).[31]
The Law Council generally
welcomes the reforms, which are the subject of the Bill, stating that:
The concept of ‘mega-litigation’ has in recent times drawn
attention to the impact that private disputes can have on the courts and the
strain that such litigation can impose on the scarce public resources required
to fund the court system.
The costs of lengthy and inefficient litigation are carried
not only by the parties themselves but also by taxpayers who fund the operation
of the justice system. Judicial salaries, court officer and registry staff
salaries, and court premises costs are incurred unnecessarily by litigation
that is not efficient or cost effective. If inefficient litigation monopolises
court resources then those that cannot afford protracted litigation are
prevented from accessing the justice system.[32]
However, the Law
Council points out that there are certain provisions in the Bill that should be
considered further, which include:
- proposed paragraph 37N(2)(b): requiring a legal
practitioner to assist clients to comply with the overarching purpose of the
litigation extends the obligation on legal practitioners beyond acceptable
limits and potentially creating difficulties, which could effectively frustrate
the whole aim of the overarching purpose
- proposed subsection 37N(4): application of this provision
could effectively enable the Court to consider matters ordinarily the subject
of settlement privilege, thereby impliedly abrogating that privilege
- proposed paragraph 37P(3)(c): this provision exceeds the
acceptable level of control by the Court by fundamentally affecting the way a
party, through its legal representatives, makes decisions about the best way to
present its case, which the Law Council believes is the prerogative of parties
in adversarial proceedings
- proposed subsection 24(1AAA): decisions about security of
costs are not ‘minor interlocutory decisions’ and should be subject to appeal, as
such decisions could have profound consequences for parties to proceedings, and
- proposed paragraph 21B(1A)(b) Family Law Act and
related proposed provisions in the Federal Court and Federal Magistrates Court
Acts: enabling the Chief Judge to restrict a Judge to non sitting duties potentially
interferes with the exercise of Chapter III judicial powers; and may compromise
judicial independence if that power is misused.[33]
While several other submissions have been received in
relation to the inquiries undertaken by the References Committee, these
generally relate more narrowly to the terms of reference of those inquiries, as
opposed to the provisions in the Bill itself.[34]
The Government states, in the Explanatory Memorandum, that
there would not be any direct financial impact on Government revenue from the
amendments proposed in the Bill.[35] However, it does not stipulate, in its financial impact statement, what cost
savings are expected from the proposed amendments.
The key issues in the Bill are:
- improving case management and appeal procedures in the Federal
Court by increasing efficiencies and reducing costs, while maintaining the just
resolution of disputes, and
- ensuring judicial performance and standards.
There are three Schedules in the Bill, which deal with:
- case management
- jurisdiction and appeals, and
- judicial responsibilities.
Schedule 1 contains amendments to the Federal Court Act
relating to case management and procedural reforms.
Item 5 proposes to insert new section 20A into
the Federal Court Act, relating to the Federal Court’s power to deal
with particular civil proceedings without oral hearings, in exercising its
original jurisdiction.[36]
The effect of proposed section 20A is that if the
Federal Court or a judge of that Court is satisfied that:
- the matter is frivolous or vexatious
- the issue(s) on which determination of a matter depends has been
authoritatively decided in case law, or
- an oral hearing would not significantly help with the
determination of a matter because there is no issue of fact relevant to
determining the matter and written submissions can adequately deal with the
legal arguments,
the Federal Court or Judge may deal with the matter without
an oral hearing.
It is noted that the Explanatory Memorandum states that this
amendment would enable the Federal Court to resolve civil disputes by simply dealing
with papers in situations where the just resolution of matters can be achieved
by the fastest, cheapest and most efficient way possible.[37] This would be consistent with the proposed overarching purpose of civil
practice and procedure as discussed below.
Item 6 proposes to insert new sections 37M–37P into the Federal Court Act, specifically dealing with case
management in civil proceedings.
Proposed subsection 37M(1) provides that the
overarching purpose of civil practice and procedure provisions is to facilitate
the just and legal resolution of disputes as quickly, cheaply and efficiently
as possible.[38]
According to proposed subsection 37M(2), this
includes, but is not limited to:
- the efficient and timely disposal of proceedings in the Federal
Court’s caseload and
- the cost of resolving a dispute would be proportionate to the
complexity and importance of the matter.
It is noted that the Government describes proposed
section 37M as ‘the centre-piece of the case management reforms’, aimed at
overcoming what was considered as being the ‘restrictive interpretation by the
courts of what is in the interests of justice after the High Court’s decision
in Queensland v J L Holdings Pty Ltd.[39]
In that case, involving
an application by the defendant to amend its defence, the majority of the Court
stated:
Justice is the paramount consideration in determining an
application such as the one in question. Save in so far as costs may be awarded
against the party seeking the amendment, such an application is not the occasion
for the punishment of a party for its mistake or for its delay in making the
application. Case management, involving as it does the efficiency of the
procedures of the court, was in this case a relevant consideration. But it
should not have been allowed to prevail over the injustice of shutting the
applicants out from raising an arguable defence, thus precluding the
determination of an issue between the parties. In taking an opposite view, the
primary judge was, in our view, in error in the exercise of her discretion.[40]
It is also noted that Justice Kirby, in a separate judgment,
also stated:
Whilst taking all of the considerations relevant to the
circumstances of the case into account, the judge must always be careful to
retain that flexibility which is the hallmark of justice. New considerations
for the exercise of judicial discretion in such cases have been identified in
recent years. But the abiding judicial duty remains the same. A judge who
ignores the modern imperatives of the efficient conduct of litigation may
unconsciously work an injustice on one of the parties, or litigants generally,
and on the public. But a judge who applies case management rules too rigidly
may ignore the fallible world in which legal disputes arise and in which they
must be resolved.[41]
It is noted that the question of whether such interpretation
by the High Court is ‘restrictive’ or, in fact cautionary, remains open to
debate. It may yet be arguable that certain proposed amendments in the Bill,
relating to case-management, may have potential to frustrate the just resolution
of disputes.
Proposed section 37N provides for requirements on both
parties to conduct proceedings in a way consistent with that overarching
purpose and on the parties’ lawyers to assist their clients in complying with
those requirements. Failure to comply with these requirements will be
considered by the Court or Judge in exercising discretion to award costs in the
proceedings. In addition, if a lawyer fails to comply with his or her
obligations under proposed subsection 37N(2) and costs are awarded against
that lawyer personally, the lawyer must not recover those costs from the
client.
The Explanatory Memorandum states that it is important that
everyone involved in litigation focuses in the real issues in dispute as well
as resolving those issues as quickly as possible.[42] Examples of conduct that might be considered to breach these requirements
include:[43]
- unreasonably refusing to participate in ADR
- unreasonably rejecting a settlement offer of part or all
of the proceeding and
- pursuing issues that have no real prospect of success.
However, it is noted that terms such as unreasonably are prone to subjective and inconsistent interpretation.
In addition, the Law Council’s concerns regarding proposed
subsections 37N(2) and (4) should be noted at this point.[44]
It should also be noted that ADR is not always conducive to
a just resolution of a dispute and that the success of ADR processes depends on
how those processes are implemented.[45] However, the Bill does not provide any detail on the implementation of ADR.
Proposed section 37P enables the Federal Court to
give directions about the practice and procedure to be followed in a civil
proceeding or part thereof. Such directions may include:
- requiring tasks to be completed
- setting deadlines for completion of tasks
- place limits on the evidence submitted, such as limiting number
of witnesses called or documents tendered; and limiting the length of
submissions made
- varying or revoking previous directions made and
- whether to refer the matter for arbitration or mediation.
Failure by a party to
comply with such direction may result in the Court or Judge making such orders
as:
- dismissing all or part of the proceedings
- striking out, amending or limiting a part of the party’s claim or
defence and
- awarding costs against the non complying party.
The Law Council’s concerns regarding proposed paragraph
37P(3)(c) should be noted at this point.[46]
Item 7 proposes
to insert new subsection 43(3) into the Federal Court Act, setting out
what the Court or Judge may do in relation to costs. This includes:
- awarding costs at various stages of a proceeding
- making different awards of costs in relation to different parts
of the proceeding
- awarding costs to a party regardless of whether that party is
successful in the proceeding
- awarding costs against a party’s lawyer personally
- ordering that costs awarded are to be assessed on an indemnity
basis or otherwise.
Item 8 proposes
to replace section 49 in the Federal Court Act. The effect of this
proposed amendment is that where judgment is reserved in a proceeding and the
Judge who heard the proceeding either alone or as part of a Full Court prepares
his or her judgment but is unavailable to publish that judgment, it may be
published by another Judge authorised by the Judge who had prepared the
judgment.
Item 9 proposes
to enable the Court to refer proceedings or part thereof for arbitration,
mediation or an ADR process in accordance with the Rules of the Court.
Items 10 and 11 propose consequential amendments clarifying that such referrals to mediation
and ADR processes would not require parties’ consent.
As mentioned earlier, the success of ADR processes,
including mediation, depends on how those processes are implemented. The
importance of parties’ consent to ADR has been the subject of debate. It would
be interesting to ascertain NADRAC’s opinion on this issue in its forthcoming
report.
Schedule 2 contains proposed amendments to the Federal Court
Act relating to both Federal Court jurisdiction, as well as the process of
appeals to and from the Federal Court.
Items 1–4 and 6–10 propose to amend
section 20 of the Federal Court Act, effectively providing that interlocutory
matters, as set out in subsections 20(3) and (5), must be heard and determined
by a single Judge instead of a Full Court, unless:
- otherwise directed by a Judge or
- the application for the interlocutory matter is made in a
proceeding already assigned to a Full Court and the Full Court decides it is
appropriate that it hear and determine the application.
Items 5 and 11 propose to amend subsections 20(4) and (6) of the Federal
Court Act, to the effect that the Federal Court Rules would be able to provide
that, in the circumstances listed in subsections 20(3) and (5), an oral hearing
may be dispensed with, irrespective of parties’ consent.
Item 12 proposes to amend paragraph 24(1)(a) of the Federal Court Act, whereby only judgments of a single Judge, exercising
the Federal Court’s original jurisdiction, would be appealable to the Court.
Currently, judgments of a single Judge, exercising both the Federal Court’s
original and appellate jurisdictions, are appealable to the Court.
The Explanatory Memorandum states that this amendment would
reduce the Court’s workload and making it consistent with the appeal process
for Full Court decisions.[47]
It is noted that item 29 proposes to amend section
33 of the Federal Court Act so that judgments of a single Judge, exercising
the Federal Court’s appellate jurisdiction, would still be appealable to the
High Court, with leave.
The amendment proposed by item 12 above would render current
subsection 24(1AAA) of the Federal Court Act unnecessary. Consequently, item
13 proposes to replace subsection 24(1AAA) with a new subsection 24(1AA),
which provides that there would be no appeal from specific interlocutory
decisions of a single Judge exercising the Court’s original jurisdiction.
It is noted that the Explanatory Memorandum states that this
amendment would reduce delays caused by such appeals, thereby ensuring the
efficient administration of justice.[48] However, the Law Council’s concern regarding proposed subsection 24(1AA),
in relation to security of costs, is particularly pertinent.[49] This proposed amendment highlights how streamlining processes could have the
potential to adversely affect ‘access to justice’.
Item 14 proposes to insert new subsections 24(1B)–(1E) in the Federal Court Act. With amended paragraph 24(1)(a) and new subsection 24(1AA), subsection 24(1A) would have the effect that interlocutory
decisions of a single Judge exercising the Court’s original jurisdiction, other
than those specified in new subsection 24(1AA), would be
appealable to the Court with leave.
Amendments proposed by item 14 provide that existing
subsection 24(1A) would be subject to proposed subsection 24(1C), which
provides that leave to appeal would not be required for appeal of an
interlocutory judgment of a single Judge exercising the Court’s original
jurisdiction, presumably other than interlocutory decisions specified in new
subsection 24(1AA), where such interlocutory judgment affects
someone’s liberty or is part of contempt of court proceedings. However, it is
noted that proposed subsection 24(1E) provides that the absence of an
avenue of appeal from an interlocutory judgment of the Court would not prevent:
- a party from founding an appeal from a final judgment in the
proceeding on the interlocutory judgment, or
- the Court from considering the interlocutory judgment when
determining an appeal from the final judgment in the proceeding.
It is somewhat unclear whether proposed subsection 24(1E) would apply to interlocutory matters specified in new subsection 24(1AA).
On the face of the Bill itself, it appears that it could. However, the
Explanatory Memorandum describes the interlocutory matters in new subsection 24(1AA) as being minor procedural decisions for which there should be
no avenue of appeal.[50]
Items 15 and 16 propose amendments to subsections
25(1A) and (1AA) respectively of the Federal Court
Act.
Item 15 proposes to delete the current presumption
that appeals from the Federal Magistrates Court, except for migration
judgments, are heard by the Full Court unless the Chief Justice[51] considers that it is appropriate for the appeal to be heard by a single Judge.
Item 16 proposes that, henceforth, all appeals from
the Federal Magistrates Court (not only migration judgments), would be heard either
by a single Judge; or the Full Court if a Judge considers that it is
appropriate for the appeal to be heard by the Full Court.
Items 18–24 propose amendments to subsections 25(2)–(2C) in terms similar to those proposed by items
4–11 to section 20 as discussed above.
Items 25 and 28 propose to amend subsection
25(5) and paragraph 26(2)(a) in the Federal Court Act so that appeals
from the judgement of a court of summary jurisdiction, as well as where such a
court states a case or reserves a question concerning a matter in relation to
which an appeal would lie, must be heard by:
- a single Judge or
- the Full Court if a Judge considers it appropriate for it to be
heard by a Full Court.
Item 29 proposes to amend subsection 33(2) of
the Federal Court Act. It is noted that existing subsection 33(2) already provides
that appeals from judgements of single Judges exercising the original
jurisdiction of the Federal Court are not appealable to the High Court. Proposed
subsection 33(2) would mean that judgements of single Judges exercising the
appellate jurisdiction of the Federal Court would still be appealable to the
High Court.
However, it is noted that item 12 proposes to amend paragraph
24(1)(a) of the Federal Court Act, whereby judgments of a single Judge
exercising the Federal Court’s original jurisdiction would be appealable to the
Federal Court itself (see above).
Item 32 proposes to insert new subsections 33(4A)–(4C) into the Federal Court Act, so that judgments from certain interlocutory
matters heard by:
- the Full Court exercising the Court’s original jurisdiction and
- either a single Judge or the Full Court exercising the Court’s
appellate jurisdiction,
would not be appealable to the High Court.
In relation to item 32, the Explanatory Memorandum
states that such interlocutory matters:
involve minor procedural decisions for which there should be
no avenue of appeal. The removal of the right to appeal will ensure the
efficient administration of justice by reducing delays caused by appeals from
these decisions.[52]
However, it is
noted that proposed new subsection 33(4C) provides that in such
circumstances:
- a party may found an appeal from a final judgment in the
proceeding on the interlocutory judgment or
- the High Court may take into account the interlocutory proceeding
in determining an application for special leave to appeal, or an appeal itself
, from a final judgment in the proceeding.
This is a similar amendment as
that proposed in item 14 in relation to proposed subsection 24(1E).
Schedule 3 contains proposed amendments to
the Family Law, Federal Court and Federal Magistrates Acts, relating to
judicial responsibilities. The proposed amendments are generally similar across
the three Acts.
Items 1, 2, 8, 9 and 11 propose to amend subsections 21B(1), 15(1) and 12(1) of the Family Law, Federal Court and Federal Magistrates
Acts respectively. These proposed amendments provide that the Chief Judge is
responsible for ensuring the effective, orderly and expeditious
discharge of the respective Court’s business.
Items 3, 10 and 12 propose to insert new provisions
to the Family Law, Federal Court and Federal Magistrates Acts
respectively, which would have the effect of empowering the Chief Judges of the
respective Courts to make particular management decisions, such as:
- which Judge(s) would constitute the Court/Full Court in
particular matters
- assigning caseloads, classes of cases or functions to certain
Judges and
- restricting Judges to non-sitting duties.
In addition, the Chief Judge would have to ensure that
Judges of the respective Court have access to (or reimbursement for the costs
of) certain health and educational services.
The Law Council’s concern regarding the Chief Judge or
Justice being able to temporarily restrict a Judge/Justice to non-sitting
duties is particularly relevant.[53]
It is also noted that items 6 and 7 propose to insert new subsections 22(2AAA) and 6(3) into the Family Law and Federal Court Acts respectively. These proposed
provisions would enable Judges of the respective Courts to be assigned to
particular locations when appointed to the Court. The assignments would not be
able to be permanently changed to another location without the consent of the
Attorney-General, the respective Chief Judge and the Judge in question.
Importantly, items 5, 6, 7, 10 and 13 propose new provisions to the Family
Law, Federal Court and Federal Magistrates Acts, which would give legal
protection and immunity to the Chief Judge of the Court in undertaking those
management responsibilities. In addition, the Chief Judge’s decisions made when
undertaking those management responsibilities would not fall within the
jurisdiction of the Federal Court with respect to section 39B of the Judiciary
Act 1903.[54]
Concluding
comments
Reducing the costs associated with resolving disputes in the
Federal Court and improving court procedures would greatly improve access to
justice in matters within the jurisdiction of the Court.
In general, the proposed amendments in the Bill would go some
way in working toward those goals. However, the extent to which certain proposed
amendments achieve those goals remains open to further consideration and debate.
Members, Senators and
Parliamentary staff can obtain further information from the Parliamentary
Library on (02) 6277 2442.
[23]. Bell
Group Ltd (in liquidation) v Westpac Banking Corporation [No 9] [2008] WASC 239; Seven Network Ltd. v News Ltd. [2007] FCA 1062 (the C7
case).
Sharon Scully
11 August 2009
Bills Digest Service
Parliamentary Library
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