the ATTAINMENT of justice – 
WITH PARTICULAR EMPHASIS ON THE FEDERAL COURT

Chief Justice, distinguished guests, ladies and gentlemen.
I am delighted to be here, contributing to “Hot Topics in the Tropics” at the North Queensland Law Association Conference.  I am not sure how “hot” my topic is but it is “topical”, and I do wish to discuss a case that derives from Queensland, namely State of Queensland v JL Holdings (1997) 189 CLR 146.  I have entitled my topic “The Attainment of Justice – with Particular Emphasis on the Federal Court”, although I am afraid that is in an attempt to try to stimulate your immediate interest – later I will be talking about discovery.
It has always been the object of the judicial system to obtain justice, in whatever form might be appropriate in the circumstances.  The method employed to achieve justice has varied greatly throughout history, and between empires and countries.  Different eras and jurisdictions have favoured the use variously of, for example, judges, or juries, or even the invocation of God.  
There has not always been, of course, court rules with page after page of reference to pleadings, notices to produce, discovery rules and interrogatories.  Indeed, there are still jurisdictions without such regulated procedures or equivalent concepts.  So who has got it right?  Are we more able in Australia in 2008 to deliver justice by virtue of the myriad of procedural rules than in times past or in jurisdictions with less complex procedure?  Many would argue not necessarily; that the existing procedures, and even case management, for the sake of it, are not achieving the purpose they were designed for.
Most now accept that a procedural Rolls Royce is not the best approach to every case.  The next question is what aspects of procedure are not pulling their weight, and in what circumstances?  After answering this question, we then become equipped to ask how some reform might be made.
First, let us look at another, older, approach to justice – one with far fewer procedural rules. 
In the middle ages, the notion of trial by ordeal was considered the method du jour of establishing guilt.  It was a practice held in high esteem.  Usually, under trial by ordeal, the guilt or innocence of the accused was determined by subjecting them to a painful task.  If either the task was completed without injury, or the injuries sustained were healed quickly, the accused was considered innocent.  In medieval Europe, like trial by combat, it was considered a judicium Dei: a procedure based on the premise that God would help the innocent by performing a miracle on their behalf.  These days of course, it is lawyers who must perform the miracles.  
In Europe, ordeals commonly required an accused person to test himself or herself against fire or water, though the precise nature of the proof varied considerably at different times and places.  Fire was the element typically used to test noble defendants, while water was more commonly used by lesser folk.
In 12th Century Catholic churches the priest would demand a suspect to place his hand in the boiling water.  If, after three days, God had not healed his wounds, the suspect was guilty of said crimes.
There was also the ordeal by cold water.  This involved variously being submerged in a stream with a subsequent acquittal if you survived, or being submerged in a barrel three times, being considered guilty if you sink to the bottom.
This ordeal became also associated with the witch-hunts of the 16th and 17th centuries.  Some argued that witches floated because they had renounced baptism when entering the Devil's service.  Some claimed that they were supernaturally light, and recommended weighing them as an alternative to dunking them.  
Women accused of being witches were often thrown into deep water with a millstone round her neck.  It was thought that the guilty would sink.   This method of course achieved a 100% success rate from the prosecutor’s point of view. 
In Monty Python and the Holy Grail (and I’m working from the authorised version here), a crowd of medieval villagers bring a woman to Sir Bedevere, accusing her of witchcraft.  The villagers admit that they gave her a fake nose and had dressed her up to appear more like a witch.  Sir Bedevere, not fully convinced, proposes a non sequitur test to determine whether or not she is a witch: witches burn, and so does wood, so witches are made of wood; wood floats on water, and so do ducks, therefore, if she weighs as much as a duck, she is a witch.  She does, and is carried off by the villagers to be burned, adding, "It's fair cop"—that is, that she was rightly accused and properly tried.
These glimpses into the history of trials show us how the acceptance of different modes of and procedures at trial change over a period of time.  Each considered “the” preferred way to proceed.  I would like to return to civil procedures and the present day.
We have a long history of court procedure which underpins the civil litigation process in Australia, with many aspects including pleadings, discovery, and the giving of evidence being well known even amongst non-lawyers.  But the extent to which such procedures are necessary to obtain justice, itself a subjective term, is an area of disagreement by practitioners and judicial officers alike.  Particularly in the light of some of the more complex and lengthy cases of late, it is arguable that a certain level of the process leading up to trial is unnecessary and perhaps, positively harmful to the attainment of justice.   Do we need to completely re-think the “ordeal” of the civil trial we put litigants through in an attempt to achieve justice?
The purpose of my presentation today is to identify some tension in the use of case management principles and to talk about the relatively recent development of doing away with pleadings and limiting discovery in the Fast Track list in the Federal Court.  Necessarily, I can only touch upon these aspects for the purposes of promoting discussion.
Let me start with a discussion of a case which will likely be familiar to many of you: State of Queensland v JL Holdings (1997) 189 CLR 146.  In that case, the parties were engaged in a long running commercial dispute in the Federal Court concerning a lease to develop certain land.  The estimated length of the trial was four months.  After a number of interlocutory hearings and several amendments to the defence, the defendants applied again to amend their defence.  All but one of their amendments were allowed.  The judge (Kiefel J) refused leave to add a defence which, though arguable, was likely to result in the vacation of the date which had been fixed for the trial six months ahead.  The judge considered that maintaining that date was a more pressing consideration than a party’s right to present a further defence.  After being upheld by the Full Court on appeal, the trial judge’s decision was then overturned by the High Court, which held that, while case management principles were a relevant consideration, they could not be used to prevent a party from litigating an issue which was fairly arguable.  A party should be permitted to raise an arguable defence provided any prejudice to other parties could be compensated by costs.
Justices Dawson, Gaudron and McHugh referred to several cases relied upon by the Full Court, including a comment by Bowen CJ in Cropper v Smith (1884) 26 Ch D 700 at 710, that:
… it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party.  Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.
The Federal Court decision in Clough and Rogers v Frog (1974) 48 ALJR 481 was also referred to, where applications for leave to amend the defences in two actions by adding a new defence had been refused.  The actions had been commenced more than five years previously and the applications were made two days before the actions were listed for hearing.  The Court stated that:
As the defence, if established, would be a complete answer in either action, the amendments sought should have been allowed unless it appeared that injustice would thereby have been occasioned to the respondent, there being nothing to suggest fraud or improper concealment of the defence on the part of the appellants.  
Justices Dawson, Gaudron and McHugh then referred to a contrary stance espoused in Sali v SPC (1993) 67 ALRJ 841, where it was stated by Toohey and Gaudron JJ (at 849) that:
The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales.  The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.
The High Court went on to find in JL Holdings (at 155) that:
… the matters referred to by the primary judge were insufficient to justify her Honour’s refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal.  Justice is the paramount consideration in determining an application such as the one in question.  Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application.  Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration.  But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.  In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.
It must be said that the decision in JL Holdings is not without its critics, one of whom occupies chambers two doors down from mine.  Late last year, in Black and Decker Australasia v GMCA [2007] FCA 1623, Finkelstein J was dealing with a situation where the respondent sought leave to file two affidavits out of time which were contended to be by way of reply.  His Honour stated that:
It is common for parties to do little more than pay lip service to timetables fixed to regulate when steps should be taken to get a case on for trial.  Seemingly it makes no difference whether the timetable is fixed with the consent of the parties or following argument.  The view that has taken hold in many quarters is that a party is only required to keep an eye on the timetable and, if it cannot be met, it will be extended.  The assumption is that the wronged party will be fully compensated by an award of costs.

The assumption may be true in some cases.  But often it is not true when it comes to commercial parties involved in a commercial dispute.  Those parties do incur losses resulting from delay that can never be compensated by a costs order.  For one thing the costs are often not capable of being calculated.  For another thing the costs are not only directly pecuniary.  Take, for example, the cost that results from diversion of management time away from the firm’s business and to the litigation.  This should not be, but more often than not is, overlooked.  There is also the opportunity cost of a dispute remaining unresolved.  Every businessman knows that firms are often inhibited from taking action until the court determines whether the action is lawful.  Ultimate success in the dispute will not undo the loss incurred in the past.  Finally there is the ever growing discrepancy between the costs recovered pursuant to a costs order and a party’s actual out of pocket expenses.  Nowadays the party that obtains a costs order is lucky to get back 50% of its actual costs.
His Honour described the JL Holdings decision as having a ‘chilling effect’ and that it had been applied in ‘many cases where a simple costs order will not do justice between the parties’.  Justice Finkelstein went on to say that:
It is time that this approach is revisited, especially when the case involves significant commercial litigation.  One of the primary objects of a commercial court is to bring the litigants’ dispute on for trial as soon as can reasonably and fairly be done.  If, in some instances, the preparation of the case is not perfect so be it.  A case that is reasonably well prepared is just as likely to be decided correctly as a perfectly prepared case.
And:
I am of the firm view that parties should not be treated as leniently as they have been in the past.  Commercial parties expect this approach from the courts and their expectation should be met.  A useful rule to adopt is to allow an extension only if the failure to meet the existing timetable is the result of excusable non-compliance.  In deciding whether there is excusable non-compliance the court should take into account, among other factors: (a) the direct and indirect prejudice to the opposing party; (b) the impact of the delay on the proceedings; (c) the reasons for the delay; (d) good faith or lack of good faith on the part of the party seeking to be excused; and (e) the effect of putting off a trial both on other litigants and generally on the court’s ability to efficiently manage its cases.….
Not all Federal Court judges would agree with his Honour’s view however.  Last month, Logan J commented that:
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; 
but excluding proceedings –
(x)	that would otherwise be allocated to the -
	i.	admiralty panel;
	ii.	corporations panel;
	iii.	taxation panel. 
(y)	the trial of which is likely to exceed eight (8) days.  
Corporation matters and tax matters have their own similar procedures, but are conveniently dealt with separately.  
There are no pleadings.   Instead, there are statements of a party’s claim or cross-claim, points of defence and points in reply (collectively referred to as “case summaries”).  
All case summaries must, avoiding undue formality, state in summary form:
(a)	the basic elements of the party’s claim or defence, as the case may be;
(b)	where applicable, the relief sought;
(c)	the issues which the party believes are likely to arise;
(d)	the principal matters of fact upon which the party intends to rely; and
(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.

To that end, the Court may be expected to have regard to the desirability of:
•	identifying and narrowing the issues in dispute as early as possible;
•	ascertaining the degree of difficulty or complexity of the issues really in dispute;
•	setting a trial date early;
•	minimising unnecessary interlocutory steps by permitting only interlocutory steps that are directed to identifying, narrowing or resolving the issues in dispute between the parties;
•	exploring options for assisted dispute resolution as early as practicable.
The Chief Justice noted that the parties and their representatives have an obligation to cooperate with, and assist, the Court in fulfilling the overarching purposes and, in particular, in identifying the real issues in dispute as early as possible and dealing with those issues in the most efficient way possible.
What is interesting from this is that case management principles are not seen by the Court (or, one presumes, the litigants) to be a concession or an abrogation of justice in order to get a speedy judgment or to save costs for example; to the contrary, case management is generally used as a tool to better achieve that justice.  The real problem is that one has to be careful not to over manage a case prior to trial, just as being careful not to under manage.  The starting point is usually deciding on a trial date, work out what is necessary for that event, and then “getting on with it”, to use the terms of Gummow J.  
One of the goals for the Federal Court at least is consistency in its application of case management principles.  Perfect consistency is of course difficult given the fact that the judges are numerous and human, although that last proposition is arguable.  Each case does not and cannot ‘run itself’ as it were; if it did, one could have a computer containing all the formulae for efficient case management, and parties would just input via their own computers the facts, the causes of action, the likely number of relevant discoverable documents, and the evidence likely to be led.  The computer would then process the data, and spit out a timetable to be followed by the parties, including all interlocutory orders which might be necessary.  All that would be left for the judge to do would be to hear the case and make a decision.  But this would focus too much on “process”, and not upon what was absolutely necessary for each individual case to dispose of it at a trial.
Let me return to discovery.  Many litigation practioners complain that they are buried in documents and that the amount of documentation in litigation is exploding, particularly in large and complex litigation.  There is the example of the Multiplex case where there have been estimates of up to $25m for discovery when the total claim was for $100-150m.  In the Seven Network Ltd v News Ltd case 85,000 documents were put before the court.  This was however only fifteen percent of the discovered documents and millions were reviewed to get it down to the 85,000.  These do not seem to be isolated instances - there are examples of cases set down to run for a year to eighteen months.  In another case concerning $80,000 over 800,000 emails were discovered.
The aim, in an ideal world, would be identify and exchange the critical documents at an early date, which might spare much of the other discovery.  It seems that many large, sophisticated defendants would have risk management systems in place to deal with document creation and retention and, if this is so, then they should be able to identify the key documents early in the process.  But who should decide which documents are the crucial ones?  The parties, or the courts?  Should judges be more interventionist and order parties to hand over the key documents early in the piece?  Some practioners consider that the courts need to exercise more control.  But you cannot please everybody, and there are critics of category discovery as it can make documents that otherwise would not be relevant discoverable, and can lead to disputes over the categories.
There is the possibility of the introduction of special staff to manage discovery issues in large cases.  These might be equivalent to the senior administrative staff who manage pre-trial conferences and perform a role that is analogous to the special masters in the USA. 
There may be a need to reconsider a party’s ‘right’ to discovery, or to express more precisely the content of any such right.  We should look at the process of discovery in the context of some of the fundamental principles of case management, namely:
•	Ensuring the parties are on equal footing;
•	Saving expense;
•	Dealing with the case in ways which are proportionate to;
o	The amount of money involved;
o	The importance of the issue;
o	The complexity of the issues;
o	The financial position of each party; and
•	Ensuring that it the case is dealt with expeditiously and fairly.
In addition to reforming the rules, courts could augment discovery in several ways.  One proposal is to give judges discretionary power to allow oral depositions as well as to appoint special masters to manage discovery in large-scale actions, including the conduct of depositions.
It seems difficult to avoid the conclusion that the current discovery regime is defective because it does not explicitly force litigants to justify discovery requests (ie by reference to the costs and benefits) nor does it constrain the trial judge to reject requests not so justified.  
There is an obvious virtue in requiring the parties and the court to isolate beforehand precisely what it is the parties want discovery of and why.  If a litigant cannot clarify and justify a request, then it should not be granted.  The more the court is able to narrow discovery to specific documents (eg the board minutes for a particular meeting) rather than broad categories (eg all documents mentioning the defendant), the easier it will be to ensure compliance, minimise disputes, and control cost burdens.
I then leave you all with this final observation.  A great degree of co-operation between practioners is going to be expected in the running of future litigation.  We are still in an “adversarial system”, but it is being tempered.  Co-operation to achieve an expeditious and fair result will need to become the norm.  Judges will need to encourage and reward such co-operation, and equally deal appropriately with those litigants (and their advisors) who do not assist with the overriding objective of enabling the courts to deal with cases justly.
Again, “hot” off the press is the announcement by the Victorian Attorney-General that he has received a 750 page report into civil litigation in the Victorian Parliament yesterday (28 May 2008).  The report is the product of an 18 month inquiry by the Victorian Law Reform Commission, led by Peter Cashman, and makes 177 recommendations for reforms aimed at reducing the cost, duration and complexity of litigation and to encourage more disputes to be resolved before trial.
The report recommends increasing standards of court users – including the parties, lawyers, litigation funders and insurers – by creating a duty to ensure costs are “minimised and proportionate” and steps in the process are “reasonably necessary”.  The court will have power to award compensation to those harmed by a breach of the standards.
I am not sure this is necessarily the way to go.  My experience is that most practitioners do co-operate and if suitably prompted and encouraged, assist the court in reaching an expeditious trial or coming to an appropriate settlement.  The culture among litigators is changing, and there is now an appreciation that there is a need to get to the nub of the dispute as quickly as possible and without wasting valuable court resources.  
Thank you and I hope that you enjoy this conference.