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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