Case Management

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Case management is the idea that judges manage cases in order to increase efficiency and give effect to the overriding purpose. The judges have the power to give directions to fulfill this duty:

  • CPA Division 2 of Part 6:
    • s 61: Directions as to practice and procedure generally. Subsection 1 states the court may give orders as it thinks fit for the speedy determination of the real issues.
    • s 62 Directions as to conduct of hearing.
    • s 63: directions with respect to procedural irregularities. Failure to comply does not invalidate the proceedings, subject to subsection 3 where the court has power to set aside proceedings.
  • UCPR Part 2:
    • r 2.1 - the court may give directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings .
    • r 2.3 - directions and orders may relate to and of the listed court processes for the purposes of case management.
  • Application:
    • Courts balance the dictates of justice (allowing parties to make amendments etc) against the need to keep proportionate costs and eliminating delay.
    • Court is required to give weight to all three considerations: Dennis v Australian Broadcasting Corp.
    • The powers of the court to issue directions and so on under the CPA and the UCPR mean that the process of justice is overlaid with the consideration of delay and costs: Aon Risk Services Australia v ANU
    • There is no right to an indulgence (eg, amendments of pleadings or adjournments), costs order not always sufficient to compensate injustice: Aon Risk Services Australia v ANU

This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [2.10]-[2.140], [2.180]-[2.290].

Introduction

[1] Case management is the idea that cases need to be managed in certain ways in order to achieve justice and efficiency. The main idea behind case management is the elimination of delay and costs. Court procedures and acts like the CPA and the UCPR have recently been put into place to give the courts power to manage cases and eliminate delay and costs.

  • ‘Memories fade; records may be lost…Delay in a case will almost always add to the costsDelay in a case also adds to the overall burden on the judicial system’.[2]
  • Judges now intervene in proceedings to a degree which was unheard of only two decades or so ago. Courts are no longer passive recipients of a caseload over which they exercise no control.
  • Not all lapse of time can be called ‘delay’. Unacceptable delay is the time beyond that which is reasonably required for the fair and just determination of the case.

Backlog Reduction

[3] There are a number of ways of reducing the backlogs of the court:

  • First Measure: increase in jurisdiction of lower courts (they deal with matters quickly).
  • Second measure: appointment of additional judges, both full time and acting.
  • Referring cases that did not raise complex issues to arbitrators.
  • Blitzes - where a large number of cases of a particular character, are listed together.

Costs

[4] Excessive costs may hamper access to justice because disputants cannot afford to commence litigation. Case management is one tool by which attempts to minimise cost may be sought. However, it may generate front load costs as it requires parties to take additional or more comprehensive steps than what they may choose to undertake themselves.

This was discussed in Access to justice and access to lawyers:[5]

  • Extensive use of telephone directions hearings and communications must be given a higher priority than in the past.
  • The cost of dispute resolution must in some manner be proportionate to what is in dispute.

Litigation Costs

[6] There are many costs associated with litigation:

  • Legal advice and assistance, ie, fees payable by a litigant to his or her lawyer
  • Disbursements - expenses for the purposes of litigation such as payment for expert reports, title searches etc
  • Opportunity costs, eg, time lost to energies focused on litigation
  • Costs of litigation have been increasing, caused by:
    • Costs of discovery
    • Rising practitioner fees
    • Taxation incentives for business to litigate
    • Rising costs of expert witnesses

Caseload Management and Managerial Judging

[7] When exercising any power a court is required to give effect to the overriding purpose, namely: to facilitate the “just, quick and cheap” resolution of the real issues in the proceedings.

  • Courts are given a comprehensive range of powers to do this, including:
    • Power to direct parties to take steps to comply with timetables
    • Power with respect to conduct of hearing, eg, limiting time for cross examination
  • The court insists on a strict compliance with a timetable lodged at the outset of proceedings, with a view of listing a matter for hearing within 12 months of its commencement.
  • A key objective is to ensure trial date certainty, so that litigants and their representatives know that if a trial matter is listed it will be heard.
  • Case management system conducted under judicial leadership with appropriate delegation to registrars.

Managerial judging requires the judge to take an active part in directing the proceedings through its interlocutory stages.

  • Seeks to distribute and direct cases through the system in an efficient manner.
  • French J: “greater demands on government and its institutions, including the judiciary, to be responsive to their needs in terms of the costs and efficiency”

Case management and managerial judging was discussed in Queensland v JL Holdings:[8]

  • Facts: in a dispute, the trial judge refused an application to amend pleadings by the defendant on the basis that it should have been done years ago (ie, delay).
  • Held: though case management is endorsed is endorsed, individual justice is the dominant criterion and take priority over case management.

Since JL Holdings, the CPA was passed and in particular Part 6, which deals with the overriding purpose.

Directions

[9] Case management is undertaken through a series of directions hearings before a judge or registrar. The date of the first directions hearing will be given by the registry in a notice issued at the time of filing the statement of claim.

Division 2 of Part 6 of the CPA deals with the court's power to make directions:

  • s 61 Directions as to practice and procedure generally. Subsection 1 states the court may give orders as it thinks fit for the speedy determination of the real issues.
  • s 62 Directions as to conduct of hearing.
  • s 63 directions with respect to procedural irregularities. Failure to comply does not invalidate the proceedings, subject to subsection 3 where the court has power to set aside proceedings.

Directions are also dealt with in the UCPR, Part 2:

  • r 2.1 - the court may give directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings .
  • r 2.3 - directions and orders may relate to and of the listed court processes for the purposes of case management .

Application of the CPA and UCPR

[10] There is some reluctance on the Court to dismiss a case when there has not been a hearing on merits. However, if a party demonstrates repeated failures to comply with directions, it is by that party’s own conduct that they are prevented a proper hearing.

This was discussed in Dennis v Australian Broadcasting Corp:[11]

  • Facts: the respondent tried to invoke JL Holdings to amend its pleading for the fifth time.
  • Held: since JL Holdings, the CPA has been passed and according to it the courts must seek to give effect to the overriding purpose. This means that there is a significant qualification of the power to grant leave to amend a pleading and other such applications.

However, a part of the overriding purpose is the "just determination of proceedings", which will always be a very influential factor in procedural law. This was discussed in Hans Pet Constructions v Cassar:[12]

  • Facts: the plaintiff sued the defendant and took a long time to provide particulars for its pleading. As a result, the defendant was unable to meet the timetable and required further time for pleadings. The trial judge, relying on s 56 of the CPA, struck out the defence and ordered the proceedings to proceed to a damages hearing due to non-compliance with directions.
  • Held: The power to strike out a defence was subject to s 58 which in turn mandated consideration of s 56 and 57, including s 57 (1) (a) - “the just determination of the proceedings”. The trial judge failed to give due weight to the requirement of the just determination of proceedings, and thus miscarried his discretion in striking out the defence.

Ultimately, it is difficult to determine how the court will do the balancing process of 'quick' and 'cheap' against 'just'. In Halpin v Lumley General Insurance, the court decided that preventing delay was very influential and allowed a party not to submit affidavits for certain information:[13]

  • Facts: the respondent kept certain information confidential and then deployed it during cross examination. The judge excused them from serving affidavits regarding that information, and the appellant argued that the court cannot do so, because the new procedural rules are designed against 'trial by ambush'.
  • Held: the obligations in the CPA (overriding purpose and co) are obligations to 'give weight' to considerations - it involves a balancing process. Accordingly, after balancing the considerations, the court can make orders/directions (pursuant to s 61) relieving one party to civil litigation from complying with directions (for example, directions to provide affidavits).

The balancing process was also discussed in Aon Risk Services Australia v ANU:[14]

  • The powers of the court to issue directions and so on under the CPA and the UCPR mean that the process of justice is overlaid with the consideration of delay and costs.
    • Need to consider the litigants waiting in line. Allowing a party to take as long as it likes means the court cannot be accessed by others.
  • There is no right to an indulgence (eg, amendments of pleadings or adjournments). A costs order is not always sufficient to overcome the injustice of a party seeking an indulgence.
  • Equally, not all indulgences must be refused as the courts have to weigh the justice of the situation.
    • An explanation for why an indulgence is needed is very important.

Ethical Requirements

[15] The ideals of case management and the overriding purpose are also enshrined in the Advocacy Rules 15, 15A and 15B (equivalent Barrister Rules are 56, 57, 58).

Practice Notes

[16] Practice notes are issued by legal officials to address procedure in more detail - they explain the processes that should be followed for procedural laws. The practice law regarding case management is Practice Note SC CL 6.

End

This is the end of this topic. Click here to go back to the main subject page for Resolving Civil Disputes.

References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 1-2.
  2. Jackamara v Krakouer (1998) 195 CLR 516.
  3. Spigelman, Case Management in NSW.
  4. BKL, p. 71-3.
  5. Spigelman, 'Access to justice and access to lawyers', (2007) 29 Australian Bar Review 136.
  6. NSWLRC, Security for costs and associated costs orders - Consultation Paper 13 (May 2011).
  7. BKL, p. 75-81.
  8. (1997) 189 CLR 146:
  9. BKL, p. 86-7.
  10. BKL, p. 90.
  11. [2008] NSWCA 37.
  12. [2009] NSWCA 230.
  13. [2009] NSWCA 372.
  14. [2009] HCA 27.
  15. BKL, p. 106.
  16. BKL, p. 107-8.
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