In 2010, Victoria introduced the Civil Procedure Act 2010 which aimed to change the culture of civil litigation and specified, in section 7 of the Act, that disputes must be resolved in a “just, efficient, timely and cost-effective” manner. These four values are essential, and this is because they influence how all parties in a dispute, even judicial officers and legal practitioners, are to treat civil litigation. They must now always endeavour to achieve justice efficiently, saving both the time and the amount of money used in a proceeding that is endured by the courts and litigants. A method which Victorian courts implement as a means of achieving just, efficient, timely and cost-effective solutions to disputes is what is known as case management. …show more content…
In order to understand the Australian judicial system’s changing perspectives towards case management, it is important to look at two particular cases. The first is Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, which will be referred to as the J L Holdings case. This is a significant case because it established how Australian courts initially approached pre-trial procedures and the administration of justice in civil procedure. The dispute between Queensland and J L Holdings had proceeded to the High Court because their original trial judge had refused Queensland to amend their defence and Queensland’s successful appeal, pleading that such a refusal would prejudice their argument, had allowed for the determination that the amendment should have been granted on the justification that courts should always prioritise the achievement of justice over the implementation of case management principles (Boniface & Legg 2010). The key point to take away from this case that is relevant is that this appeal had set a precedent that prioritised justice over any consideration for any consequence of delay or expense. However, this approach would soon be overturned in the case of Aon Risk Services …show more content…
The problem of how expensive litigation is has always been an issue, and definitely not a problem that has only been a recent nuisance for the legal system (McClellan 2010). While it is important to recognise that the expenses incurred in pursuing civil litigation has its worthwhile function in suppressing civil claims that are considered to be unwarranted and petty (Doyle 2012), it is also important to maintain a balance and ensure the cost of accessing justice is not too high that most of the general community cannot access this service should they need it (Zuckerman 1994; Zuckerman 1995). Therefore, case management aids such an injustice caused by expensive litigation. Under section 47 of the Civil Procedure Act, judges have the ability to determine how proceedings are to be conducted and this can be done through, for example, forming a timetable for parties to a dispute to follow or restricting the amount of witnesses or issues parties can bring forward in a proceeding (McClellan 2010). By such an order, judges are able to ensure proceedings are dealt with as soon as possible, saving the court’s time and resources as well as the amount of money parties to a dispute are to spend in paying for their legal representation (Croft 2011b; Fenton & Watson 2014; McClellan
The areas in which these reforms should occur are twofold. One argument that Judge Ross raises repeatedly is that measures should be taken to insure the sustainability of Family Court employees through more manageable caseloads. The necessity of this change is evident in countless examples of children suffering as a result of constantly changing, thin-spread, staff. In one particular instance, a six month child abuse case is adjourned because they “don’t have the medical records” in time (128). The second argument that can be implicitly made based off of Judge Ross’s expressed frustrations is that, if given the proper time for consideration, there should be more room for consideration of circumstance in Family Court. From a legal standpoint, there is substantial evidence for the validity of a common law approach to Family Court over the traditional civil law. Judge Ross establishes that ideally “In each case to protect children, to assure due process, to remain neutral until the facts are established, to apply common sense and sound judgment within the framework of the law in making decisions—the Family Court judge’s charge lies quite outside the arena of public policy, comment, and debate” (104). However, as seen in many of his cases, the combination of the overflowing workload and an inability to apply proper consideration to any given circumstance makes it impossible for the pre-existing
From the aforementioned cases, it is evident to see that the Australian legal system has not always been fair and just, however, over time it has been shaped and moulded to clearly represent what is now considered to be fair and just in our society. From the procedures and presumptions of how the legal system is administered to the law and regulations which determine what is the crime and punishment – these are based on the transparency, equality, freedom from bias, human rights, and established set of rules adhere to the justice and fairness of the legal system.
This case commentary discusses the different approaches used to be taken in Victoria and NSW, presuming that the admissibility of the Evidence in ss 97, 98 and 101 is of the same decision, not separate decision .
The application of Browne v Dunn is established in Australia in both civil and criminal cases, however its appliance in the criminal ones differs. There is some vagueness as to when precisely the rule is breached and the penalties that apply to a party in breach. The question that arose recently is whether Browne v Dunn applies to criminal proceedings at all. The case of MWJ v R confirmed that Browne v Dunn applied to criminal proceedings in Australia, despite some differences in judicial reasoning. The case was further followed by R v MAP which moreover elaborates certain aspects of the following rule. Gleeson j and Heydon J stated that “the requirement is accepted and applied day by day in criminal trials”. One of the principles the High court articulated was that the rule must be applied with caution, when considering the conduct of the defense, this was emphasized with reference to the cases of R v Birks and R v Manunta.
For many people, Legal Aid is the only option to defend their cases. In an Australia Institute report, ‘Justice for All,’ it is estimated that, out of 1.7 million Australians encountering legal problems each year, nearly a third will not receive legal advice due to financial reasons and lack of knowledge. Although Legal Aid is a valuable and useful resource, it is only available to the those on the lowest income, due to the lack of funding from the government. Also, Legal Aid lawyers often don’t have enough time to adequately talk to their clients about cases, making it difficult to present an in-depth case. This lack of funding forces people to take the case into their own hands, which is mostly unsuccessful due to the complicated mechanisms of the legal system. These faults in the system make the courts less effective in achieving
Australia has taken from English Law in adopting the cab rank rule, encoded in The Victorian Bar Incorporated Practice Rules 2009 (Vic). This essay will discuss the application of the rule, the strengths and weaknesses and will conclude to discuss why the rule should remain an integral part of the Bar despite many calls for its abolition.
A fundamental principle of the Queensland’s Court system is the successful delivering of just outcomes for all stakeholders in any trial. The law has been an integral part of society and continues to be the foundation of a civilian community, where, when applied correctly, many disputes can be resolved in a just manner. This report explores the issue of whether courts are intimidating and out of touch, and if presented so, what improvements have been made to these factors to remain valideffective in the delivering of just outcomes. The information in this report was generated based on thorough online research along with information gathered from a visit to the Queensland Courts.
Thousands of cases are appealed every year. They include criminal convictions as well as ci...
However, in reality, from the time a grievance is filled against one party until an arbitration decision is finally issued, the process can take years to be resolved. There are many reasons for the delays in the grievance arbitration process, but the root cause of the problem is the expansion of the arbitral jurisdiction. The Supreme Court of Canada’s decision of the Weber v. Ontario Hydro case ultimately increased both the potential for litigation over the scope of arbitral jurisdiction and the complexity of legal issues with which the arbitration board must deal with (Weber v. Ontario Hydro, 1995). A study was conducted on this topic in 2010 to determine the time lapse of the arbitration process in Ontario and found that the average time had risen from 287 days to 443 days to complete an arbitration case (Banks, 2016). Delays in labour arbitration creates practical difficulties for both parties such as financial loss to the employer, inhibit the productivity of both employee and management restiveness, harm contract negotiations, and ultimately affect the quality of the arbitration hearing
The fundamental purpose of the requirement that an originating process (“OP”) be served by personal service, prior to the commencement of proceedings, is to promote procedural fairness and natural justice . This essay will examine personal service in the context of civil procedure and the governing procedural rules pertaining to the personal service of an OP in New South Wales , as outlined in the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). To avoid doubt, unless the context indicates otherwise, “defendant” and “claim” shall include the singular and the plural as an OP may comprise of multiple defendants and/or multiple claims.
WE can however, accommodate mechanisms which operate as additional or subsidiary processes in the discharge of sovereign responsibility. These enable the court system to devote its precious time and resources to the more solemn task of administering justice in the name of sovereign." Street, The language of alternative dispute resolution' (1992) 66 Australian Law Journal, 1994.
The doctrine of binding judicial precedent is perceived as the core element of the English legal system. The doctrine is perceived as the ‘rule of thumb’ judges follow in deciding their judgements. This involves taking into account long-standing precedents, which only matured from the nineteenth century. A fundamental element of common law systems is the application of the principle of stare decisis , which means ‘let the decision stand’. This in practice means that judges in lower courts are bound to decide cases using existing legal principles made by superior courts. Therefore, there is a hierarchical structure in the English courts.
Even though the Rule of Law implies that everyone should be entitled to have access to the courts and legal advice, not too much imagination is needed to understand that access to justice has always been reserved for those more well off (or, at least, access to the right kind of advice). There have always been plenty of obstacles in the way of people’s access to legal advice: lack of money and knowledge, a negative attitude towards solicitors, segregated societies etc. Even though help is always available in some form, many citizens choose to do nothing and drop their claims, hoping that their legal issues will disappear on their own. Money is undoubtedly the most common reason for people being denied access to justice. It is for this reason that (since the law is supposed to be just and equitable towards everyone) governments are generally trying to help pay for those less privileged in the form of various types of legal aid.
In particular, Gallas-himself a former court administrator-thinks that what judges and administrators do within courts is insufficient to explain case processing differences; as he states it, the "local legal culture pervades the practice of law and the processing of c...
Jacinta submitted her compliant to the Office of the Legal Services Commissioner of New South Wales, alleging the Gordon Appleby acted inappropriately and incompetently in handling her case. She therefore, did identify the complaint was for inappropriate conduct which was the complaint. She also identified that it was Gordon Appleby a prominent legal figure in NSW law who the complaint was made against. And she described the alleged conduct is a costs dispute as well as other things. A complaint must also be made within three years since the alleged conduct was carried out, which in the case of Jacinta her complaint was lodged on the 28 June 2015 for the alleged conduct that happened on the 15 June 2015.Therefore, Jacinta’s claim is valid as it was submitted through the appropriate channels and did comply with the requirements of the Legal Professional Uniform Law Application Act 2014 (NSW) (LPULAA).