Bills Digest no. 88 2008–09
Federal Justice System Amendment (Efficiency Measures)
Bill (No.1) 2008
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: 3 December
2008
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Sections 1 to 3 and
Schedules 1, 2, 3 and 4 on Royal Assent. Schedule 5, items 2 to 8
on the day after Royal Assent and Schedule 5, item1 and Schedule 5,
Part 2 on whichever is the later date, the start of the day after
Royal Assent and immediately after item 1 of Schedule 1 of the
Family Law Amendment (De Facto Financial Matters and Other
Measures) Act 2008.
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/.
To amend:
- the Federal Court of Australia Act 1976 (the Federal
Court Act) to enable a single judge to make interlocutory orders in
proceedings that would otherwise be heard by a Full Court and to
enable the appointment of court appointed referees to inquire into
and report on a proceeding or questions arising from a
proceeding;
- the International Arbitration Act 1974 (the
International Arbitration Act) to clarify the Federal Court of
Australia s existing jurisdiction under Part II of the Act in
enforcing awards and to give the Federal Court concurrent
jurisdiction with state and territory courts for matters arising
under Parts III and IV of the Act;
- the respective Acts of the Administrative Appeals Tribunal, the
Family Court, the Federal Court of Australia and the National
Native Title Tribunal to permit the acquisition of interests in
land for the purposes of the Lands Acquisition Act 1989
(Cth) (the Lands Acquisition Act);
- the Public Order (Protection of Persons and Property) Act
1971 to allow the making of court premises orders for security
purposes and to clearly delineate court premises ,
and
- the Family Law Act 1975 (the Family Law Act) to
clarify and simplify the procedures for making binding financial
agreements, including financial agreements made by de
facto couples.
The commencement of Schedule 5 item 1 and Part 2 of the current
Bill relating to binding financial agreements are dependent on the
commencement of Schedule 1, item 1 of the Family Law Amendment
(De Facto Financial Matters and Other Measures) Act 2008. This
Act was assented to on 21 November 2008 but as yet item 1 of
Schedule 1 has not commenced.[1]
The amendments to the Federal Court Act are designed to expedite
the proceedings of the Court and to assist in avoiding undue delays
experienced in procedural matters. A single judge is given the
power to make interlocutory orders either before or after the
determination of a matter by the Full Court either in the exercise
of original or appellate jurisdiction. This will avoid having to
convene the Full Court for this purpose.
An interlocutory order is defined as an
immediate direction of a court made before the
court makes a final determination of the proceedings. Appeal courts
will not overturn interlocutory orders unless a clear case has been
made out that the judge who made the interlocutory order has acted
on some wrong principle or has made an order that works a
substantial injustice to one of the parties.[2]
The Bill also makes provision for the Federal Court to appoint
referees and to refer a proceeding or questions arising in a
proceeding to the referee to inquire into and report on to the
Court. Referees will have the same protection and immunity as a
judge when inquiring or reporting on a proceeding or a question
referred by the Court. This means that referees will have complete
protection from civil liability when discharging their functions
under proposed section 54A of the Federal Court
Act and providing that they act in good faith.[3]
Amendments proposed by Schedule 1 provide that
the Rules of Court will make provision for:
- the types of cases to be referred
- the procedural matters involved in the referral of a proceeding
or a question to a referee
- the appointment of referees
- fees payable, and
- time limits on parties and so on
- referees to have the power to require that evidence be taken
under oath or affirmation, and
- referees to have the power to administer an oath or
affirmation.
The Explanatory Memorandum states that the ability to refer a
matter out to a referee will provide the Court with greater
flexibility, ensure efficient use of judicial resources and assist
in the timely and efficient resolution of disputes for litigants
.[4] The Bill
provides that the Court can appoint a referee who can be a judge,
the Registrar or another officer of the Court or any other person
to inquire into and report on a referred proceeding or questions in
relation to a proceeding.
The Federal Court deals with a myriad of different types of
cases from very complex commercial and corporate law cases to
social security matters and migration cases. It also has the
problem of dealing with self-represented litigants. If a referee
has questions arising from a complex proceeding to inquire into and
report on, the actual inquiry itself by the referee could become
very complex and time consuming and would no doubt involve
substantial cost. See the commentary below by former Federal Court
judges on this point. The question then arises as to who pays for
the provision of this service. Although the Explanatory Memorandum
states that there is no significant financial impact, it would
appear a difficult matter to determine what exactly the cost will
be. While the Court Rules may make provision for the fees payable
to a referee (proposed paragraph 59(2C)(h)), the
Bill, second reading speech and Explanatory Memorandum are silent
as to how they are to be paid and by whom. This silence (and/or
lack of appropriation) suggests the fees will be borne by litigants
not the Court, but further clarification from the Government would
avoid any doubt.
The Court is already trialling innovative approaches to try and
deal with some of the problems associated with maintaining an
efficient case management system. The extract below from the Court
s latest Annual Report outlines these strategies:
During the year, the
Court continued to actively pursue greater efficiency in its case
management. The emphasis in this work has been to improve the
overall management of litigation in the Court in order to resolve
disputes as quickly, inexpensively and efficiently as
possible.
As reported in 2006 07, the Victorian Registry
of the Court launched a Fast Track List in May 2007. The principal
objective of the Fast Track List is to streamline court procedures
in order to significantly reduce both the time and costs of
litigation. The key elements of the List are the replacement of
pleadings with a case summary, compulsory attendance at a
scheduling conference held approximately six weeks after filing to
identify the issues in dispute, dealing with most interlocutory
applications on the papers, reducing the volume of discovery,
closely monitoring trial times and, where possible, delivering
judgment within six weeks. An extensive consultation program was
undertaken with the legal profession, with Fast Track List
presentations given to over 50 law firms.
The List continues to operate effectively. The
average time to finalisation is four months and litigants costs
have been substantially reduced. After a trial period of 12 18
months, and further consultation with judges and the profession, an
assessment will be made about whether the List should be introduced
nationally.
The Court is also developing other procedures
and protocols that will help strengthen the active case management
of proceedings. These include the introduction of guidelines for
the conduct of matters in particular areas of the Court s
jurisdiction, such as taxation and intellectual property matters,
and for the more effective use of technology in relation to
pre-trial procedures (such as discovery) and hearings. Work will
continue in relation to such matters as the early identification
and refining of the real issues in dispute, the use of specialist
panels and lists and the conduct of mega-litigation.
The Court has undertaken an extensive review of
its Practice Note which deals with the use of technology in
litigation. The new Practice Note will more clearly inform the
parties and their representatives about the Court s expectations on
how technology should be used in proceedings and recommends a
framework or procedures and protocols for managing electronic
documents in both the discovery process and in the conduct of
electronic trials. The procedures and protocols are designed to
help ensure that the use of technology contributes to the quick,
inexpensive and efficient resolution of proceedings.[5]
The problems that federal courts have been grappling with are
not new, as evidenced by the following reviews:
The Bill is silent on the matter of what type of qualifications
and/or experience a referee is required to have, assuming the
referee is not a Judge, Registrar or other court officer. The
measure is aimed at resolving commercial disputes as expeditiously
and economically as possible and is thought to be useful in cases
involving complex technical issues or where detailed examination of
financial records is necessary to assess damages. [8] However, no mention is made in the
Bill of the need for a referee to possess financial and /or
accounting qualifications, or perhaps some other relevant
qualification and/or experience in other areas such as building
construction. However, it would be expected that the Court Rules
would set up the framework in relation to these matters.
The International Arbitration Act implemented the United Nations
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (into Australian domestic law. In acceding to the
Convention, Australia was obliged to recognise and enforce foreign
arbitration agreements and foreign arbitral awards.[9] Matters involving disputes usually
involve commercial contracts.
The amendments in the current Bill clarify the Federal Court s
existing jurisdiction under Part II of the Act which involves the
enforcement of foreign awards. The Federal Court is also given
concurrent jurisdiction under Parts III and IV of the Act with
state and territory courts.[10] The amendment to section 18 designates the
Federal Court as a competent court to perform the functions under
Article 6 of the Model Law . The Model Law refers to the UNCITRAL
Model Law on International Commercial Arbitration:
The Model Law is designed to assist States
(countries) in reforming and modernizing their laws on arbitral
procedure so as to take into account the particular features and
needs of international commercial arbitration. It covers all stages
of the arbitral process from the arbitration agreement, the
composition and jurisdiction of the arbitral tribunal and the
extent of court intervention through to the recognition and
enforcement of the arbitral award. It reflects worldwide consensus
on key aspects of international arbitration practice having been
accepted by States of all regions and the different legal or
economic systems of the world.[11]
The text of the Model Law can be found at Schedule 2 of the
International Arbitration Act together with the other international
instruments which the Act implements.
The second reading speech refers to the need to ensure that the
Federal Court is well equipped to operate as a regional hub for
commercial arbitration.[12] The Office of International Law in the Attorney-General
s Department is currently undertaking a review of the International
Arbitration Act to ensure that the legislation best supports
international arbitration in Australia .[13] The objects of the review are to:
- ensure it provides a comprehensive and clear framework
governing international arbitration in Australia
- improve the effectiveness and efficiency of the arbitral
process while respecting the fundamental consensual basis of
arbitration, and
- consider whether to adopt best-practice developments in
national arbitral law from overseas.[14]
Provisions of this Bill
have been referred to the Senate Standing Committee on Legal and
Constitutional Affairs for inquiry and report by 17 February
2009.[15] Details
of the inquiry can be found at
http://www.aph.gov.au/Senate/committee/legcon_ctte/efficiency_measures/index.htm.
The Australian Financial Review has reported on
comments made by several Federal Court judges, both serving and
retired members of the Court. The Hon. Rodney Madgwick, who retired
from the Court in April 2008, suggested that an investigatory
system for small disputes should be used rather than the
adversarial system.[16] He said:
So bad is the position in relation to
small-scale litigation that serious thought should be given to a
completely fresh look at it and we may have to consider means of
by-passing the adversary system altogether.[17]
Pincus also suggested it is more urgent to employ the
investigatory system in relation to massive litigation.[18] In the United States,
he stated that special masters are sometimes appointed to report on
complex matters involved in the litigation.
The European inquisitorial system, as
exemplified by the performance of the German civil courts, seems to
work pretty well. As a first step, our courts might, whether the
parties want it, appoint a person in complex cases to report on the
issues, after gathering information by any method thought
convenient by the reporter. The report might take weeks to complete
and could be quite expensive. But the Bell decision, for example,
was not completed until 13 years after it was initiated.[19]
This suggestion is very similar to the reform being proposed by
this Bill.
The Australian reports that the Attorney-General, the
Hon. Robert McClelland, has singled out the Federal Court to be the
primary focus for Australia s attempt to counter Singapore s
growing status as a regional commercial hub. He said Australia
needed to counter Singapore as a commercial centre but those
efforts were being hampered by the conflicting ambitions of
different courts.[20] The Australian Financial Review reports that
the Attorney-General has called on NSW and Victoria to recognise
the importance of a harmonised approach to international commercial
arbitration:
we have some stiff competition from Singapore
and Hong Kong who are putting a lot of resources into this, and it
is my strong conviction we are not going to be able to [become a
regional arbitration hub] if Victoria is putting up its hand and
saying We are the centre for international arbitration and NSW is
jumping up and down saying We are the centre . What we have to say
is Australia is the centre for commercial arbitration.[21]
The Explanatory Memorandum states that the Bill will have no
significant financial impact. However, in relation to the
appointment of referees to assist the Federal Court before and
during proceedings and after, the cost of investigations and
reporting processes may result in substantial cost, if not to the
Government and/or the Federal Court, then to litigants. It is
difficult to determine the extent of the impact as it will depend
on the management of individual cases, and the issues raised in
each case. Former Federal Court judges have commented on the
possible cost impact but have put it in the context of overall
costs of complex litigation. The use of referees by the court will
contribute to saving the time of judges in inquiring into matters
in which they may not have particular expertise and it will
ultimately save the Court time as well.
Schedule 1 Federal Court powers
Item 2 inserts proposed paragraph
20(5)(aa) to enable a single judge or a Full Court of the
Federal Court in the exercise of original jurisdiction to make an
interlocutory order pending or after the determination of a matter
by the Full Court. As the Explanatory Memorandum indicates, this
amendment will reduce the potential for undue delays in having to
convene a Full Court for this purpose.[22] Similarly item 4
inserts proposed paragraph
25(2B)(ab) to enable a single judge or a Full Court to
make an interlocutory order pending or after the determination of
an appeal to the court.
Item 6 inserts new section 54A
which enables the Court, subject to the Rules of Court, to refer a
proceeding or a question or questions in relation to a proceeding
to a referee to inquire into and report to the Court
(proposed subsection 54A(1)). Such a referral can
be made at any stage of the proceeding (proposed subsection
54A(2)) and when the report is made to the Court, the
Court can deal with it as it thinks fit. The Court may either adopt
the report, vary it in some way, reject it completely, and make
such orders as it thinks appropriate on the matters referred to the
referee (proposed subsection 54A(3)).
Item 6 also inserts proposed section
54B, which confers on the referee the same immunity and
protection as a judge has in performing the functions of a
judge.
Item 7 inserts proposed subsection
59(2C) to provide that the Rules of Court may make
provision for the following matters in relation to a referral of
proceedings or questions to a referee by the Court:
- the cases that may referred by the Court
- the appointment of a referee
- the procedures to be followed by a referee when inquiring into
and reporting on a proceeding or a question arising from a
proceeding
- the participation of persons in an inquiry by a referee
- the procedures to be followed after an inquiry has ended
- the manner in which a report may be called into question
- provision of services and facilities to a referee for an
inquiry
- fees payable to a referee
- time limits to be observed by parties, and
- other matters relating to an inquiry or a report.
Proposed subsection 59(2D) provides that the
Rules of Court may empower the Court or a referee to require
evidence be given on oath or affirmation, or that the referee may
administer an oath or affirmation.
Item 8 deals with the application of
amendments. The amendments made by the schedule will apply to
matters which commenced in the Court either before, on or after the
commencement of this Schedule. In other words, the amendments apply
to all matters which have been filed in the Court but are yet to be
finally determined. While the amendments have retrospective
application, it is difficult to see how a litigant may be
disadvantaged by the fact a single judge may make an interlocutory
order in matters that would otherwise be heard by a Full Court,
and/or the fact that a proceeding (or one or more questions arising
in the proceeding) may be referred to a referee to inquiry or
report although it may depend on the type of case, the issues
arising in the case, and the stage at which the case is at
Item 1: proposed subsection 3(1) of the
International Arbitration Act amends the definition of
court in the Act to specifically mention the Federal Court
of Australia, which has concurrent jurisdiction with other state
and territory courts to enforce foreign arbitral awards.
Item 2: proposed subsection 8(3) provides that
with leave from the Federal Court of Australia, a foreign award can
be enforced in the Federal Court as if it were an award of the
Federal Court.
Item 3: proposed subparagraph 18(c) specifies
the Federal Court of Australia as a competent court for the
purposes of Article 6 of the UNCITRAL Model Law on International
Commercial Arbitration (as set out in Schedule 2 of the Act). As a
specified court, it can perform the functions of appointing
arbitrators, challenging an arbitrator, terminating the mandate of
an arbitrator, ruling on an arbitral tribunal s jurisdiction, and
the setting aside of an arbitral award.
Item 4: proposed subsections 35(3) and (4)
designate the Federal Court of Australia for the purposes of
Article 54 of the Convention on the Settlement of Investment
Disputes between States and Nationals of other States. The text of
this Convention can be found in Schedule 3 of the International
Arbitration Act. Section 35 of the Act deals with the
recognition of awards. Under the amendments, the Federal Court may
enforce the award as if it were an award of the Federal Court
although the award may only be enforced with the leave of the
Court, not as of right (proposed subsection
35(4)).
Schedule 3 amends the following provisions of
the following Acts:
References to the Lands Acquisition Act 1989 in this
Schedule relate to the administrative matters of the courts and
tribunals acquiring and disposing of land for their own
purposes.
- Administrative Appeals Tribunal Act 1975 (AAT Act ),
subsection 24A(4)
- Family Law Act, subsection 38A(4)
- Federal Court Act, subsection 18A(4), and
- Native Title Act 1993 (Native Title Act), subsection
128(4)
Item 1: proposed subsection 24A(4) repeals and
substitutes the existing provision in the AAT Act which will enable
the President of the AAT to acquire an interest in land under the
Lands Acquisition Act 1989. Currently the President of the
AAT is not authorised to do so. The President of the AAT will be
able to negotiate and execute leases without the Minister s
approval, providing that it does not exceed the prescribed limit of
$1 million. This limit also applies to major purchases.
Item 1 repeals existing subsection 24A(4) and
substitutes a new subsection 24A(4) in its place.
Currently, subsection 24A(4) refers specifically to the fact that
the President of the AAT is not authorised to:
- acquire any interest or right that would constitute an interest
in land for the purposes of the Lands Acquisition Act 1989
; or
- enter into a contract under which the Commonwealth is to pay or
receive an amount exceeding $250,000 or, if a higher amount is
prescribed, that higher amount, except with the approval of the
Minister.
Currently, the higher amount of $1 million is prescribed for the
purposes of paragraph 24A(4)(b).[23] The revised provision removes all reference to
the acquisition of any interest or right that would constitute an
interest in land for the purposes of the Lands Acquisition Act
1989 . Instead, proposed subsection 24A(4)
consists of only the fact that the President is not authorised to
enter into a contract under which the Commonwealth is to pay or
receive an amount exceeding $250,000 (or such higher amount as is
prescribed) without the Minister s approval. Presumably, such a
contract can now include the sale or purchase of land.[24]
By virtue of the operation of item 5 of
Schedule 3 to the Bill, any regulation that was
made for the purposes for paragraph 24A(4)(b) (which is to be
repealed by item 1) is taken to have been made for
the purposes of proposed subsection 24A(4) of the
AAT Act. Thus, the President of the AAT may enter into a contract
(including a contract for the acquisition of land) under which the
Commonwealth must pay or receive an amount not exceeding $1 million
without the Minister s approval.
Items 2 4 make similar amendments to the Family
Law Act, the Federal Court Act and the Native Title Act in so far
as they remove reference to the acquisition of any interest or
right that would constitute an interest in land for the purposes of
the Lands Acquisition Act 1989 , but retain the power of
the Chief Judge of the Family Court, the Chief Justice of the
Federal Court, and the President of the Native Title Tribunal (as
the case may be) to enter into a contract under which the
Commonwealth is to pay or receive an amount exceeding $250,000 (or
such higher amount as may be prescribed) without the Minister s
approval. Currently, the amount of $1 million has been prescribed
in relation to contracts entered into by these courts and the
tribunal by virtue of item 5 of Schedule
3, that amount will remain the same for the purposes of
the revised provisions,[25]
Public Order (Protection of Persons and Property) Act
1971
Item 1 of Schedule 4 repeals
the definition of court premises in section
13A and replaces it with a new definition that makes
specific reference to the Federal Court and to premises for which a
court premises order exists. Item 2
inserts proposed section 13AA, which provides for
the making of a court premises order by an authorised
Court official (proposed subsection 13AA(1)). Such
an order can be made if premises are to be likely to be occupied or
used on a permanent or temporary basis, or under a lease or
otherwise, in connection with operations of the Federal Court
(proposed subsection 13AA(2)). An authorised
court official may give notice of a court premises order by
posting a copy of the order in a prominent place near the court
premises (proposed subparagraph 13AA(5)(a)(i)) and
ensuring that, if the premises are occupied or used for the
purposes of a sitting or proceeding, an announcement concerning the
details of the order and its effect is made at the beginning of or
during the sitting or proceeding (proposed subparagraph
13AA(5)(a)(ii)).[26] One of the effects will be that persons on court
premises can be searched if an authorised officer in relation to a
court believes on reasonable grounds that the removal or search is
necessary in the interests of security , and removed if they refuse
or fail to comply with requirement, or do not satisfy the officer
that they have a proper reason for being on the court
premises[27] If
regulations exist under proposed subsection
13AA(6) (prescribing the form of the notice, the manner of
giving the notice, and the content of the notice) then the
requirements prescribed by those regulations are to be complied
with: proposed paragraph 13AA(5)(b)).
Item 2 repeals existing paragraphs 90G(1)(b)
and (c) of the Family Law Act and inserts proposed
paragraph 90(G)(1)(b) to clarify and simplify what each
spouse party is provided with before signing a financial
agreement. Each spouse party will be required to have
independent legal advice about the effect of the agreement on their
rights, and the advantages and disadvantages of entering the
agreement at the time the advice was given; and a signed statement
by the legal practitioner providing the advice to that spouse party
stating that this advice was given to the party.[28]
Item 5 repeals existing paragraphs 90J(2)(b)
and (c) and inserts proposed paragraph 90J(2)(b).
This amendment is similar to item 2. It clarifies and simplifies
what each spouse party is required to have prior to signing a
termination agreement, being (as is the case in relation to
financial agreements under proposed paragraph
90G(1)(b)) independent legal advice from a legal
practitioner about the effect of the agreement on the party s
rights, the advantages and disadvantages of entering the agreement
at the time the advice was provided, and a signed statement from
the legal practitioner stating that the advice was given to the
party.
Sub-item 8(1) provides that the amendments made by items 2 to 7
in this Schedule apply to financial and termination agreements made
on or after 27 December 2000. This is the date that the
provisions dealing with financial agreements (inserted by
the Family Law Amendment Act 2000 No. 143) commenced.
However, sub-item 8(2) states that these
amendments do not apply to an agreement if a court has made an
order to set the agreement aside prior to the commencement of this
item. While the amendments are thus of retrospective operation,
they are unlikely to affect a party s substantive rights in any
significant way, given that at present the law requires the
agreement itself to contain a statement that each party has
received independent legal advice of the sort set out in
proposed subparagraph 90G(1)(b)(i), and for a
certificate signed by the person providing the independent legal
advice to be annexed to the agreement. However a party may incur
additional and unreasonable expense if the Court refuses to accept
an agreement for filing because the statement is annexed to the
agreement (as per the current law) instead of that statement being
given to the party before he or she signed the agreement under the
proposed amendment.
Item 10 repeals paragraphs 90UJ(1)(b) and (c)
of the Family Law Act and inserts proposed paragraph
90UJ(1)(b) in their place. Paragraphs 90UJ(1)(b) and (c)
were inserted by the Family Law Amendment (De Facto Financial
Matters and Other Measures) Act 2008 (which is not yet in
force). The amendment is similar to the amendment made by item 2
but deals instead with financial agreements between de
facto partners. Before signing a financial agreement, each
spouse party is required to be provided with independent legal
advice from a legal practitioner on their rights and the advantages
and disadvantages of making the agreement at the time when the
advice was given. The legal practitioner giving the advice is
required to give the spouse party a signed statement stating that
the advice was given to that party. Similarly, item
13 repeals paragraphs 90UL(2)(b) and (c) and substitutes
proposed paragraph 90UL(2)(b) setting out what a
spouse party must receive before signing a termination agreements
between de facto partners.
Section 90UM of the Family Law Act (which was inserted by the
Family Law Amendment (De Facto Financial Matters and other
Measures) Act 2008, but is yet to commence) deals with the
circumstances in which a court may set aside a financial agreement
or termination agreement. Item 16 amends subsection
90UM(5) and states that if at least one of the spouse
parties has not had independent legal advice concerning their
rights and the advantages and disadvantages to that party of making
the agreement before signing the agreement, or if they did not
receive a signed statement from the legal practitioner to say that
they had received this advice, then the court may set aside the
agreement if it would be unjust and inequitable not to do so.
Sub-item 17(1) provides that the amendments
made by items 10 to 15 apply to agreements made under sections
90UB, 90UC or 90UD and termination agreements under Part VIIIAB of
the Family Law Act 1975. They apply to agreements made on
or the day after item 1 of Schedule 1 to the Family Law
Amendment (De Facto Financial Matters and Other Measures) Act
2008 commences. Sub-item 17(2) states that if
a court has set aside an agreement prior to commencement of these
provisions, the amendments do not apply in relation to that
agreement.
As the Attorney-General points out, the appointment of referees
to the Federal Court is a means of enabling the Court to more
effectively manage large litigation : Such efficiency is important
if we are to ensure that the cost of justice remains proportionate
to the relief being sought. [29] Although using referees may be a costly exercise
in some instances, the results of doing so may enable the Court to
manage its case load more efficiently to cut down on the time taken
and the resources needed to conduct complex litigation, with the
possibility of freeing up court time and resources for smaller
cases too. It may be a matter of observing how it operates in
practice.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2784.
[3]. Judicial immunity is defined as
follows: Complete protection from civil liability afforded
to the judiciary when discharging their judicial function. Under
this doctrine, the judiciary are not liable for any act provided
they are acting in good faith: Rajski v Powell (1987) 11
NSWLR 522. Immunity does not extend where, although purporting
to act in a judicial capacity, the judge knowingly
acts unlawfully and beyond jurisdiction: Moll v Butler
(1985) 4 NSWLR 231; 10 Fam LR 544; Rajski v Powell. Even
if this were established the executive government cannot be held
vicariously liable: Rajski v Powell, Encyclopaedic
Australian Law Dictionary.
Moira Coombs
3 February 2009
Bills Digest Service
Parliamentary Library
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