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The Australian courts have an overarching principle to ensure that justice is served for all litigants. Unfortunately, this wasn’t the case throughout our court system due to the growing adversarial culture of the courts. 1 With the enactment of the Civil Procedure Act (2005) (CPA) and Uniform Civil Procedure Rules (2005) (UCPR), this saw a shift to the injustices occurring within the judicial system to an overriding philosophy of “just, quick and cheap resolution of the real issues in proceedings”. 2 This established case management to ensure that proceedings were being dealt with efficiently and costs are proportionate.3 Law Reform Australia’s history within the court system saw a great disbelief in its judicial process.4 This was due to the complex nature of the process to which litigants had to undertake.5 Hence, why lawyers were involved to help litigants understand the complexity which saw a lower number of self-represented litigants. Furthermore, due to the complex nature of the courts and little knowledge of society of how to work through the system, this saw a rise in costs of proceedings. 6 This also provided for lengthy proceedings which didn’t deliver satisfying results. 7 Ultimately, this saw the public lose faith in the justice system as the processes didn’t really seem just in terms of costs and inefficacies. Therefore, claims pursued in courts decline significantly as citizens were unhappy. Australia need law reform in order to progress past the inadequacies entrenched in the judicial system. 8 Justice Wood, suggested moving towards ADR and updating legislation to be consistent with litigation’s overriding philosophy.9 This sought for a change in the way Australia civil procedure occurred within courts and case management was introduced. Case management became the new overriding philosophy that underpinned the way the court managed litigation. It objective is to bring cases to an early and economical disposition consistent with the needs of justice. 10 Lord Woolf, highlighted the case management provides distributed justice between all by effectively managing court resources. 11 With the application of justice now coherent with court considerations of costs, delay and aggrieved, it is 1 Lord Woolf, Access to Justice: Final Report (Her Majesty’s Stationary office London Press, 1995) 263. 2 Basten, John. The overriding purpose of the Civil Procedure Act 2005 (2015) Judicial Officers Bulletin, Vol. 27, No. 7, Aug 2015: 59-64. 3 Justice Patricia A Bergin, ‘Case Management’ (Speech delivered at the National Judicial Orientation Forum, Sofitel Hotel, Broadbeach, Queensland, 3-8 August 2008). 4 Stephen Colbran et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7th ed, 2019). 5 Stephen Colbran et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7th ed, 2019). 6 Chief Justice Allsop, ‘Judicial Case Management and the Problem of Costs’, (2014) Federal Court of Australia. 7 Chief Justice Allsop, ‘Judicial Case Management and the Problem of Costs’, (2014) Federal Court of Australia. 8 Dr Tania Sourdin, ‘Judicial Management and Alternative Dispute Resolution* Process Trends’ (1996) 14 Australian Bar Review 185, 190-1. 9 Dr Tania Sourdin, ‘Judicial Management and Alternative Dispute Resolution* Process Trends’ (1996) 14 Australian Bar Review 185, 190-1. 10 Stephen Colbran et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7th ed, 2019). 11J Roemer, Theories of Distributive Justice (Harvard University Press, 1998).

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evident that the demands for reform were relatively met through the introduction of case management.12 Overriding Philosophy The introduction of this new overriding philosophy within ligation saw the enactment of new laws in 2005. The UCPR and CPA where both established in 2005 to support the cultural change of civil litigation. 13 The new overriding purpose of civil litigation is to facilitate the “just, quick and cheap resolution” of proceedings”. 14 Originally within civil litigation the power was in the parties hands which allowed them to dictate how cases would be run.15 Although under the new overriding philosophy the power shifted to the courts to ensure that litigation was managed efficiently and not costly to litigants.16 This saw the abandonment of the former laissez-faire approach. 17

What is case management? For the courts to be successful in fulfilling the overriding purpose, they must manage cases to achieve justice and efficiency. This is done through case management by the courts to ensure the elimination of delay and excessive costs to litigants. As mentioned in Jackamara v Krakouer (1998), delays in the overall case causes an inconvenience on judicial system too and gives rise to increased costs. 18 This adds to the disgruntled litigant’s pressure on obtaining efficiency and justice within the court system.19 Hence, the lost faith by the public in the judicial system pre 2005. With the enactment of the CPA and UCPR, it has given the judge's power to intervene case manage litigation unlike before where the parties chose the proceedings of how the case would be run. 20 In Queensland v J L Holdings Pty Ltd, it was highlighted that judicial independence is a prominent feature of case management.21 This ensured that everyone was given equal opportunity to pursue litigation within the court. Previously, parties who had time and money were at the forefront of litigation. As it was found that costs were excessive to the value of the case, and the transparent of 12 Andrew Stephenson, Arbitration: Can It Assist In The Development Of The Common Law – An Australian Point of View (17 October 2016) Corrs Chambers Westgarth < https://i-law.com/ilaw/doc/view.htm?id=370966 >.

13 Basten, John. The overriding purpose of the Civil Procedure Act 2005 (2015) Judicial Officers Bulletin, Vol. 27, No. 7, Aug 2015: 59-64. 14 Civil Procedure Act 2005 (NSW) s 56. 15 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, 113. 16 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, 113. 17 Hon Thomas Bathurst, ‘After the Civil Procedure Act’ (Speech delivered at the 10 Year Anniversary of Civil Procedure Act, The Banco Court, 18 February 2015). 18 Jackamara v Krakouer (1998) 195 CLR 516. 19 Jackamara v Krakouer (1998) 195 CLR 516. 20 Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (Thomson Reuters, 2d ed. 2012). 21 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. 2

the legal process was lost. 22 Under the new overriding philosophy of case management, courts were found not to be passive recipients of caseload, they were at the forefront of managing the cases. 23 Justice Bergin described case management objective is to ensure litigant’s go through alternative dispute resolution paths first to come a settlement between parties. 24 If this is not possible or alternative dispute resolution failed, then proceed to trial. 25 This gave effect to the overriding purpose of bringing cases to an early and economical disposition consistent with the needs of justice. Within the CPA legislation it entails and emphasizes the new overriding purpose of civil litigation. Through section 56 of the CPA it imposes obligations on all parties relevant to the case to ensure the smooth sailing of the litigation. 26 Furthermore, through the implementation of section 57 it gives reference to the overriding purpose objectives.27 These include, the just determination of proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. 28 The enactment of the CPA ensured that courts had an obligation to fulfil the overriding purpose of bringing cases to an early and economical disposition consistent with the needs of justice. The introduction of case management into civil litigation gives the court the ability to manage its resources and own caseload to ensure justice is given to all litigants that come before the court.29 This ensures that there is consistency and no disruptions to cases.30 In Sali v SPC Ltd acknowledged that the countless disruptions and adjournment’s in cases caused prejudice to other litigants that were waiting for matters to be heard. 31 Furthermore, it was a complete waste of court’s resources and caused grave inconveniences. 32 Ultimately, the regard for case management is high in abstaining this prejudice. Furthermore, the enforcement of case management provides consistent justice for all litigants. 22 Spigelman, James Jacob, ‘Case management in New South Wales’ (Paper presented for the Judicial Delegation from India, Sydney, 21 September 2009). 23 Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (Thomson Reuters, 2d ed. 2012). 24 Justice Patricia A Bergin, ‘Case Management’ (Speech delivered at the National Judicial Orientation Forum, Sofitel Hotel, Broadbeach , Queensland, 3-8 August 2008). 25 Justice Patricia A Bergin, ‘Case Management’ (Speech delivered at the National Judicial Orientation Forum, Sofitel Hotel, Broadbeach , Queensland, 3-8 August 2008). 26 Civil Procedure Act 2005 (NSW) s 56. 27 Civil Procedure Act 2005 (NSW) s 57. 28 Civil Procedure Act 2005 (NSW) s 57. 29 Basten, John. The overriding purpose of the Civil Procedure Act 2005, (2015) Judicial Officers Bulletin, Vol. 27, No. 7, Aug 2015: 59-64. 30 Basten, John. The overriding purpose of the Civil Procedure Act 2005 (2015) Judicial Officers Bulletin, Vol. 27, No. 7, Aug 2015: 59-64. 31 Sali v SPC Ltd (1993) 116 ALR 625 32 Sali v SPC Ltd (1993) 116 ALR 625 3

Case Management in Action The overriding purpose of civil litigation is “the just, quick and cheap resolution of the real issues in proceedings” which is achieved through the facilitation of case management.33 The two main issues regarding the push for law reform dealt with the injustices of proceeding costs and the constant delay. But with the enactment of the CPA and UCPR it transformed the way proceedings were handled to ensure litigation brought cases to an early and economical disposition consistent with the needs of justice. Costs: Injustices caused previously within civil litigation were mainly due to litigants’ access to money in order to pursue the case. Therefore, it was found that the majority of litigants that were accessing the justice system were those that were prosperous and could use their wealth tactfully in dispossessing the other party. 34 In addition, due to lengthy cases this added additional costs to litigants. 35 The estimated average court cost was said to be $111,130 within the Federal Court. 36 Ultimately, citizens were unable to bare the financial burden of litigation. 37 Therefore, many were deterred and suffered from limited access to justice. Due to increasing levels of costs during litigation the principle of proportionality was introduced. This was firstly addressed in Skalkos v T & S Recoveries Pty Ltd where the court must determine if whether the cost were rationally and accurately incurred.38 This is to ensure the economical disposition of case in line with the overriding philosophy of “just, quick and cheap resolution”. 39 This led to s 60 of the CPA being implemented where the power is given to the courts to justify litigation costs.40 If the costs are not warranted based on the complexity and duration of the proceedings then the proceedings can be summary dismissed. 41 Furthermore, under s 98 of the CPA the courts have been granted the power to order costs as per their discretion. This could include capping cost orders at a certain amount or percentage to stop disproportionate costs.42 This ultimately upholds the overriding philosophy

33 Civil Procedure Act 2005 (NSW) s 56. 34 Chief Justice Allsop, ‘Judicial Case Management and the Problem of Costs’, (2014) Federal Court of Australia. 35 Chief Justice Allsop, ‘Judicial Case Management and the Problem of Costs’, (2014) Federal Court of Australia. 36 Community Law Australia, Unaffordable and Out of reach: The Problem of Access to the Australian Legal System, (2012) Vol 3 no.4. 37 Community Law Australia, Unaffordable and Out of reach: The Problem of Access to the Australian Legal System, (2012) Vol 3 no. 4. 38 Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281; (2004) 65 NSWLR 151. 39 Civil Procedure Act 2005 (NSW) s 56. 40 Civil Procedure Act 2005 (NSW) s 60. 41 Jameel v Dow Jones & Co Inc [2005] QB 946. 42 Parker v Parker [2006] NSWSC 473.

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that the court must manage litigation to bring cases to an economical disposition consistent with the needs of justice. Delay: Part of the law reform dealt with displeasure of citizens regarding the constant delays and inefficiencies of the court. Previously parties had the power to run their cases the way they please and the courts were considered the passive recipients of this. 43 However, due to emphasis being placed on the “speedy determination of the real issues between the parties”, the courts gained the power to control proceedings. 44 In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd, J Williams outlined that that the conduct of proceedings within the courtroom are at the discretion of the judge and are no longer in litigants hands. 45 With the power gained under the CPA and UCPR, courts had the discretion to direct parties to pre-trial processes such as alternative dispute resolution. 46 Furthermore, the court has the power to conduct hearings to their discretion and order parties to comply with rules under CPA and UCPR. 47 This fulfilled the overriding philosophy of efficiency. As outlined in in Aon Risk Services Australia Ltd v Australia National University, it regarded speed and efficiency as a fundamental part of case management.48 The achievement of just but timely and cost-effective resolution of a dispute has effects not only on the parties to the dispute but upon the court and other litigants.49 This inherently led to courts satisfying case management needs in regards to efficiency. As identified in Bi V Mourad, where the appeal was dismissed under r 12.7 of the UCPR due to the long timeframe of proceedings and insufficiency of the case.50 Furthermore, enhancing case management as the overriding philosophy to efficiently dealing with proceedings. Conclusion In conclusion, case management is the overriding philosophy enacted to ensure that proceedings are dealt with efficiently and to an economical disposition consistent with the needs of justice. Case management provides a way for the courts to deal with the injustices that were a prominent part of the history of the judicial system. The CPA and UCPR provide a framework under which the courts can enforce the

43 Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (Thomson Reuters, 2d ed. 2012). 44 Civil Procedure Act 2005 (NSW) s 61. 45 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd (2013) 250 CLR 303 46 Stephen Colbran et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7th ed, 2019). 47 Stephen Colbran et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7th ed, 2019). 48 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. 49 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. 50 Bi v Mourad [2010] NSWCA 17, 31.

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overriding philosophy to ensure that all cases come to a “just, quick and cheap resolution”.51 Word Count: 1659

Bibliography 51 Civil Procedure Act 2005 (NSW) s 56. 6

Andrew Stephenson, Arbitration: Can It Assist In The Development Of The Common Law – An Australian Point of View (17 October 2016) Corrs Chambers Westgarth < https://i-law.com/ilaw/doc/view.htm?id=370966 >. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Basten, John. The overriding purpose of the Civil Procedure Act 2005 (2015) Judicial Officers Bulletin, Vol. 27, No. 7, Aug 2015: 59-64. Bi v Mourad [2010] NSWCA 17, 31. Civil Procedure Act 2005 (NSW). Chief Justice Allsop, ‘Judicial Case Management and the Problem of Costs’, (2014) Federal Court of Australia. Community Law Australia, Unaffordable and Out of reach: The Problem of Access to the Australian Legal System, (2012) Vol 3 no. 4. Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (Thomson Reuters, 2d ed. 2012). Dr Tania Sourdin, ‘Judicial Management and Alternative Dispute Resolution* Process Trends’ (1996) 14 Australian Bar Review 185, 190-1. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd (2013) 250 CLR 303. Hon Thomas Bathurst, ‘After the Civil Procedure Act’ (Speech delivered at the 10 Year Anniversary of Civil Procedure Act, The Banco Court, 18 February 2015). Jackamara v Krakouer (1998) 195 CLR 516. Jameel v Dow Jones & Co Inc [2005] QB 946. Justice Patricia A Bergin, ‘Case Management’ (Speech delivered at the National Judicial Orientation Forum, Sofitel Hotel, Broadbeach, Queensland, 3-8 August 2008). J Roemer, Theories of Distributive Justice (Harvard University Press, 1998). Lord Woolf, Access to Justice: Final Report (Her Majesty’s Stationary office London Press, 1995) 263. Parker v Parker [2006] NSWSC 473. Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. Sali v SPC Ltd (1993) 116 ALR 625.

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Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281. Spigelman, James Jacob, ‘Case management in New South Wales’ (Paper presented for the Judicial Delegation from India, Sydney, 21 September 2009). Stephen Colbran et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7th ed, 2019).

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