Today’s article in the  Australian, Judges reclaim power from political masters, is a thoughtful piece on the court’s more assertive approach to legislative limits on discretion. At least the first part of the article is.   This court has been much more inclined to not only defend judicial independence by striking down prescriptive legislation but it has also been more receptive to broadening established principles.  That shouldn’t be regarded as notable except that it stands in fairly strong contrast to the Gleeson High Court. A simple for instance is the approach taken to offshore processing.  Previously the court gave it the green light.  In Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 while not overturning or even disturbing the process dealt with procedural fairness.  I am not sure that the pre French court would have been so moved to action.

What is distinctive and powerful about the High Court’s decisions this year is that most decisions are overwhelming majorities if not unanimous.  Given the reputed conservativeness of Keiffel and Crennan and cautious black letter approach of Hayne and Gummow this is an approach many commentators would have expected.

Chapter 2—Overarching Purpose and Overarching obligations

Part 2.1—Overarching Purpose

The general commentary in the explanatory memorandum to Part 2.1 provides:

There are existing provisions in the Supreme and Magistrates’ Courts Acts as well as the Civil Procedure Rules applicable in each of the Supreme, County and Magistrates’ Courts, which define the purpose and duties of Victorian courts in civil matters.  The Commission recommended the introduction of a uniform statutory statement to define the overriding purpose and duties of the courts in relation to civil matters.

Section 7          Overarching purpose

The section provides:

(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

(2) Without limiting how the overarching purpose is achieved, it may be achieved by—

(a)     the determination of the proceeding by the court;

(b)     agreement between the parties;

(c)     any appropriate dispute resolution process—

(i)        agreed to by the parties; or

(ii)        ordered by the court.

The explanatory memorandum for section 7 states:

Clause 7    provides a statement that defines the overarching purpose of the  Bill and rules of court in relation to civil proceedings that will be a foundational guide to the courts when exercising their civil  jurisdiction. That purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.  This might be achieved by determination of the proceeding by the court, agreement between the parties or any appropriate  dispute resolution process agreed to by the parties or ordered by the court.

Section 8   Court to give effect to overarching purpose

(1) A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers, whether those powers—

(a)     in the case of the Supreme Court, are part of the Court’s inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or

(b)     in the case of a court other than the Supreme Court are part of the court’s implied jurisdiction or statutory jurisdiction; or

(c)     arise from or are derived from the common law or any procedural rules or practices of the court.

(2) Subsection (1) applies despite any other Act (other than the Charter of Human Rights and Responsibilities Act 2006) or law to the contrary.

The explanatory memorandum provides

Clause 8    The courts will be required to give effect to the overarching purpose when exercising or interpreting powers. The court must give effect to the overarching purpose, despite any other Act or law to the contrary, except for the Charter of Human Rights and Responsibilities.

Section 9          Court’s powers to further the overarching purpose

(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—

(a)     the just determination of the civil proceeding;

(b)     the public interest in the early settlement of disputes by agreement between parties;

(c)     the efficient conduct of the business of the court;

(d)     the efficient use of judicial and administrative resources;

(e)     minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—

(i)        the fair and just determination of the real issues in dispute; and

(ii)        the preparation of the case for trial;

(f)     the timely determination of the civil proceeding;

(g)     dealing with a civil proceeding in a manner proportionate to—

(i)        the complexity or importance of the issues in dispute; and

(ii)        the amount in dispute.

(2) For the purposes of subsection (1), the court may have regard to the following matters—

(a)     the extent to which the parties have complied with the pre-litigation requirements or any other mandatory or voluntary pre-litigation processes;

(b)     the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

(c)     the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(d)     the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(e)     the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(f)     any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;

(g)     the public importance of the issues in dispute and the desirability of a judicial determination of those issues;

(h)     the extent to which the parties have had the benefit of legal advice and representation.

(3) This section does not—

(a)     limit any other power of a court to make orders or give directions; or

(b)     preclude the court from considering any other matters when making any order or giving any direction.

The explanatory memorandum provides:

Clause 9    provides that when giving effect to the overarching purpose, a court must have regard to a broad range of objects, including the public interest in the early settlement of disputes by agreement between the parties and the efficient conduct of the business of the court.  In furthering the overarching purpose, the court may also have regard to a broad range of discretionary matters including the extent to which the parties have complied with the pre-litigation requirements under the Bill or any other pre-litigation processes.  This means that what the parties and legal practitioners do before a proceeding commences may come under the scrutiny of the court later on, if it turns out that there has been a failure to take reasonable steps to resolve the dispute.

The court may also have regard to the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute, the public importance of the issues in dispute, and the extent to which the parties have had the benefit of legal advice and representation.

Part 2.2—Application of the Overarching Obligations

10          Application of overarching obligations—participants

(1) The overarching obligations apply to—

(a)     any person who is a party;

(b)     any legal practitioner or other representative acting for or on behalf of a party;

(c)     any law practice acting for or on behalf of a party;

(d)     any person who provides financial assistance or other assistance to any party in so far as that person exercises any direct control, indirect control or any influence over the conduct of the civil proceeding or of a party in respect of that civil proceeding, including, but not limited to—

(i)        an insurer;

(ii)        a provider of funding or financial support, including any litigation funder.

(2) Subject to subsection (3), the overarching obligations do not apply to any witness in a civil proceeding.

There are 12 bills before the Parliament or awaiting Royal Assent at the end of the 2010 parliamentary year.  They are:

Civil Dispute Resolution Bill 2010

This Bill has passed the House of Representatives and, on 25 October, passed the second reading phase.  The bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee.  It’s report is  due 2 December 2010. The text of the bill and the explanatory memorandum are both on line.

Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010

This bill amends the Criminal Code Act 1995 to enable Australia to ratify the Convention on Cluster Munitions by creating offences and penalties in relation to cluster munitions and explosive bomblets with some defences for certain circumstances and provides for certain authorisations to be made.

It is currently before the Senate.  The text of the bill and the explanatory memorandum are on line.

Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010

The bill validates certain parenting orders affected by the High Court decision in MRR v GR [2010] HCA 4 and amends the Family Law Act 1975 to Read the rest of this entry »

Earlier this week Beach J, in a preliminary ruling, declined to grant a defendant’s application to extend the period within which to pay jury fees (“green fees” in the old parlance) citing the principles in Aon Risk Services Australia Limited v Australian National University and the Civil Procedure Act 2010.

Facts

The Plaintiff’s endorsed writ sought a trial by jury (see [1]) . The Plaintiff did not make payment of first  day’s jury fee by the date previously ordered by Zamitt AsJ (see  [11])   The Defendant made application to extend the time within which jury fees could be paid ([11] – [12]).  The  Plaintiff applied to have the matter tried as a cause ([14]) on the basis “… of the time and cost involved in hearing the proceeding as a jury, compared to the time and cost involved in hearing the matter as a cause.”

Decision

While his Honur stated that “all other things being equal” he would be prepared to grant the Defendant’s application he was mindful of the time and expense of a jury trial compared to a cause.  He estimated that the former would take twice as long to complete (see [16]) because of:

(a) the time taken to empanel a jury;

(b) the plaintiff’s Read the rest of this entry »

The High Court sitting in the Queens Bench division recently rejected an application by the defendant, Modi, to order a trial on the extent to which the tweet the subject of  the action was read in jurisdiction.  The Defendant applicant argued that issue was relevant to both liabilityand damages. The  High Court ruled that numbers of readers alone was not decisive.

Facts

An expert giving evidence on behalf of Modi estimated that only 35 people viewed the message.  The Defendant argued that, as in Yousef Jameel and Dow Jones , the damage from any libel case would be so small as to be not warrent proceeding and so any case would be an abuse of the court process.

There was conflicting evidence as to extent of publication (see [19] – [ 22]). Cairns’ expert estimated the audience for the tweet to be around 100, by looking at the number of Modi’s followers in the court’s jurisdiction. While Cairn’s counsel accepted that not all of Modi’s followers would have seen the tweet directly, it was argued that some people would have received a communication of it by other means.

Decision and reasoning

Mr Justice Tugendhat found that the number of people who saw the message was only one of a number of considerations in a defamation case. He found at  [34]:

In any event, the Jameel type of abuse of process does not depend on numbers alone.  [Cairns] has resided in this jurisdiction in the past, and expects to return to live here again. There have been recent cases in which the court has declined to strike out claims based on a direct communication to a single publishee.

Mr Justice Tugendhat said Read the rest of this entry »

In September Croft J found for the Defendant in Auswest Timbers v Secretary to the Department of Sustainability. Last Monday in Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability & Environment (No 2) [2010] VSC 513 Croft J considered the costs issues in this proceeding, specifically the operation of Calderbank offers and the appropriate costs orders where it is alleged that a case was hopeless or there was no chance of success from the outset.

Calderbank offers

Croft J undertook a very thorough analysis Read the rest of this entry »

Dr James Popple has been appointed as Australia’s Freedom of Information Commissioner.  Biographical details regarding Dr Popple are found at  http://www.oaic.gov.au/about/exec.html.

Tthe Minister for Privacy and Freedom of Information’s media release announcing the appointment is at  http://www.ministerhomeaffairs.gov.au/www/ministers/oconnor.nsf/Page/Newsroom.

Let the new era of more open access to documents begin!

The Civil Procedure Act willbe proclaimed on 1 January 2011. It will have a significant impact on litigators, both solicitors and counsel, approach and conduct litigation in Victorian Courts and Tribunals.

I will be  providing occasional posts on the  operation of the Act over the next 6 weeks. I have included the second reading speech in its entirety below.

This post focuses on section 1 of the Act. For practitioners the relevant provisons are section 1(2)  is the most relevant provision.  At least in the early stages of this process these provisions will be important in applying the rules of procedure.

It provides

Chapter 1—Preliminary

1   Purposes

(1)  The main purposes of this Act are—

(a)  to reform and modernise the laws, practice, procedure and processes relating to the resolution of civil disputes which may lead to civil proceedings and to civil proceedings in the Supreme Court, the County Court and the Magistrates’ Court and provide for uniformity;

(b)  to simplify the language relating to civil procedure;

(c)  to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute;

(d)  to amend various Acts in relation to the conduct of civil proceedings to reflect the new procedures.

(2)        Without limiting subsection (1), this Act provides for—

(a) overarching obligations for participants in civil proceedings to improve standards of conduct in litigation;

(b)  the facilitation of the resolution of disputes before civil proceedings are commenced;

(c)  the enhancement of case management powers of the courts, including in relation to discovery;

(d)  further enhancement of appropriate dispute resolution processes;

(e)  reform of the law relating to summary judgment;

(f)  clarifying sanctions available to courts in relation to contravention of discovery obligations.

The explanatory memorandum provides:

CHAPTER 1--PRELIMINARY
This Chapter sets out the purpose of the Bill, when the Bill commences,
definitions for terms used and the application of the Bill.

Clause 1   provides  Read the rest of this entry »

From November 1, the Office of the Australian Information Commissioner will be start operating. The Information Commissioner, supported by the Privacy Commissioner and a new Freedom of Information Commissioner, will be a specialist independent monitor with the ability to review FOI decisions and investigate complaints.

The Federal Govenment announced there would be changes to the fee structure being: Read the rest of this entry »