With the very greatest respect, I do not regard Queensland v JL Holdings as having a chilling effect. It seems to me that there is a need not to confuse the particular principle enunciated in JL Holdings with the outcome in particular cases.
During the special leave application to the High Court in the Black and Decker case (which was refused), Gummow J made some interesting comments about JL Holdings:
I am not sure that if you got here and JL Holdings was looked at again that it might not undergo some reinterpretation. … One of the things not discussed in any detail in JL at any rate is the importance of parties observing directions in complicated cases, patent cases in particular I say from personal experience, and directions are orders of the Court.
He also said that:
Orders … are not advisories. They are orders and if there appears to a judge to be – I am not saying it is right or wrong in this case – failure to comply with orders of a sustained nature that is a significant matter to go in the scales.
As an aside, his Honour commented during the hearing that:
… the notion of case management is, in my view, something of an overstatement – we were case managing cases in the Federal Court, I think, from 1977 from the start. We did not call it case management. We called it getting on with it. ….. You did not get PhDs in the subject either.
So where does the best balance lie to attain justice? There is no doubt that, by necessity, particularly complicated cases, factually or legal, generally warrant greater levels of preparation than ‘cut and dry’ ones. Some cases will go on for ever. My researches have shown that the longest suit on record in England is one which existed between the heirs of Sir Thomas Talbot, Viscount Lisle, and the heirs of a Lord Berkeley, in respect of some property in the county of Gloucester. It began at the end of the reign of Edward IV., and was pending until the beginning of that of James I., when it was finally determined, being a period of not less than one hundred and twenty years! So Justice Sackville who heard and decided the C7 case should not complain!
However, the attainment of justice, the ultimate aim of all court proceedings, may be done even if all of the traditional procedural steps, or aspects, of proceedings are not undertaken. For example, there is sometimes no desire by parties in certain cases to have discovery ordered at all, or sometimes just very limited discovery. Certainly there is no desire by junior solicitors to undertake extensive discovery in my experience or, as my associate calls it, “death by documents”. To return to Justice Finkelstein, and to demonstrate that my topic is “hot” off the press, only yesterday his Honour was quoted in The Age (dated 29 May 2008), in relation to the Opes case, where one party wanted documents numbering more than 250,000 items:
“Not in my court,” Justice Finkelstein said firmly. “I will not allow this kind of search process to go on unless it involved security of the nation or something like that”. “There’s got to be a limit, otherwise people are going to spend millions of dollars in wild-goose chases to find a single document. Why would anybody allow that to take place? Neither in this case or in other cases should people be allowed to cause other parties to incur millions of dollars in expenses if the gain is likely to be zero or insignificant.”
To assist in the resolution of some cases, the Federal Court has introduced the Fast Track List, based on the notion that justice is better served in certain cases by a simplification, or relaxation, of the civil procedures we have normally come to expect. The aim is not to focus on process, but upon the ultimate end that is sought to be achieved on a decision based upon law.
For those who are less familiar with the Fast Track List, which is still in ‘trial’ phase in Melbourne where currently three of the most attractive judges in the Court run the list – Justices Finkelstein, Gordon and myself, I will set out some of its elements.
The proceedings that can be entered on the Fast Track List are proceedings arising out of or relating to:
(a) commercial transactions;
(b) an issue that has importance in trade or commerce;
(c) the construction of commercial documents;
(d) an issue that has importance in personal insolvency;
(e) intellectual property rights apart from patents;
(f) such other commercial matters as the presiding judge may direct;
(e) the party’s contentions (including the legal grounds for any relief claimed) and the leading authorities supporting those contentions.
There is an initial Scheduling Conference, where there is discussed:
an initial witness list;
the narrowing of issues;
a fixed Trial Date; and
the pre-trial Schedule.
Except where expanded or limited by the presiding judge, discovery in cases in the Fast Track List will, as regards liability, be confined to documents in the following categories:
(a) documents on which a party intends to rely; and
(b) documents that have significant probative value adverse to a party’s case.
Parties are required to provide discovery of any document within the limited discovery categories that a party knows of at the time of the Scheduling Conference, or that the party becomes aware of at a later point in the pre-trial or trial process, or that the party discovers in the course of a good-faith, proportional search of its documents and records.
A “good-faith proportionate search” is a search undertaken by a party in which the party makes a good-faith effort to locate discoverable documents, while bearing in mind that the cost of the search should not be excessive having regard to the nature and complexity of issues raised by the case, including the type of relief sought and the quantum of the claim. This will usually involve more than simply placing your hand in your home filing cabinet, pulling out 20 random documents, and giving them to your solicitor.
If requested by any party, a party must describe briefly the kind of good faith proportionate search it has undertaken to locate discoverable documents.
A party may require additional discovery in relation to discrete issues, such as the quantification of damages. In that event the judge will make a separate order for that purpose. The order may include a requirement that discovery be by inspection alone.
Interrogatories will not be permitted in cases in the Fast Track List except in exceptional circumstances.
A pre-trial conference shall be held approximately three weeks prior to the scheduled trial date with the presiding judge, the lawyers involved in the case and all parties attending. The pre-trial conference is an opportunity for the parties and the judge to deal with any outstanding matters or applications before the start of the trial.
At the pre-trial conference the parties will be required to identify the material facts that are agreed and the material facts in dispute. In addition, a final witness list will need to be prepared.
In urgent matters the Court will deliver judgments quickly, if necessary with reasons to follow. In all other cases, the Court will endeavour to deliver judgment within six weeks. Delays in giving judgment used to be treated seriously in ancient times. A poor widow complained to the King of the Romans that a suit of hers had been in court three years, which might have been decided in a few days. The King, being informed who were her judges, gave orders that they should give all expedition to the poor woman’s cause, and in two days it was decided to her satisfaction. The King then summoned the judges before him, and inquired how it was that they had one in two days what they had delayed for three years? “The recommendation of your majesty,” was the reply. “How,” said the King, “when I put you in office, did I not consign all pleas and proceedings to you? You deserve death for having delayed that justice for three years, which two days could accomplish;” and, at that instant, he commanded their heads to be struck off. This is not something that I am advocating for judges who perhaps take too long to deliver their judgment.
Of course, the Federal Court continues to employ the docket system.
It is probably worth stating the obvious, in that the docket system of Federal Court, introduced 10 years ago, is itself a case management tool. The Chief Justice recently issued a memorandum reiterating the purpose and principles of the docket system, as follows:
The overarching purposes of individual cases management within the docket system is the just resolution of disputes as quickly, inexpensively, and efficiently as possible. In giving effect to the overarching purposes the Court, the profession and the parties will necessarily have regard to what the interests of justice, either generally or in the particular case, require.