El desorden en la sociedad

There are concerns that if a judge were to offer any views prior to final judgment that could lead to a claim of apprehended bias. The rule against apprehended bias has arisen from the requirement that courts and tribunals be independent and impartial, and is considered so important that even the appearance of departure from impartiality is prohibited.250 _{Decision makers must conduct}

themselves in such a way that a fair‑minded observer could not reasonably conclude that the decision maker may not bring an impartial and unprejudiced mind to the resolution of the issues.251

All submissions from the parties must be heard with an open mind to avoid an appearance of pre‑judgement, regardless of the apparent strength of a party’s case.252

250 _{Antoun v The Queen; Antoun v The Queen [2006] HCA 2; (2006) 224 AlR 51, [82] per Callinan J.}

251 _{Ibid [51] per hayne J.}

The interaction between efficiency and apprehended bias was discussed in Antoun v the Queen but unfortunately, the line between permissible and impermissible judicial comment is ill‑defined. kirby J stated that it is not just acceptable but ‘preferable (at least in a trial by judge alone without a jury) that the judge should express tentative or preliminary views to the parties’,253 _{but these views}

must not suggest that the decision maker has made a final and unchangeable determination in the matter. Decision makers may suggest that certain applications, submissions or arguments may be easy or hard to sustain in the circumstances,254 _{and are not required to devote unlimited time to hear}

unmeritorious arguments.255 _{however, the arguments must be heard before a final decision is made.}

In Antoun, the trial judge’s ‘peremptory announcement, as soon as [an] application was mentioned, that he would dismiss it, was a departure from the standards of fairness and detachment required of a trial judge’.256 _{The mere fact that an argument, once heard, is proven to be without merit does}

not alter this requirement.257

RecommendATIon 8.4

The Attorney‑General’s Department should explore the feasibility of amending relevant federal court legislation and rules to provide legislative guidance to the effect that the expression by a judge of a preliminary view on an issue does not amount to apprehended bias unless couched in such emphatic terms that it is clear that the judge is irresistibly drawn to that view.

Information; Action; Triage; Outcomes; Proportionate cost.

A case management approach – what we should expect from judges

RecommendATIon 8.5

Case management and dispute resolution should be considered central judicial functions and crucial to ensuring fair, cheap and effective access to justice. The Attorney‑General should work with the courts and the National Judicial College of Australia to ensure that judicial education includes measures aimed at enhancing the understanding and use of ADR, dispute resolution and case management techniques.

RecommendATIon 8.6

In considering possible candidates for judicial appointments, the Attorney‑General should have regard to the importance of case management and the use of ADR in achieving just, fair and equitable outcomes.

Action; Outcomes; Triage; Proportionate cost; Resilience.

253 _{Ibid [31] per kirby J.}

254 _{Ibid [21] per Gleeson CJ.}

255 _{Ibid [22] per Gleeson CJ.}

256 _{Ibid [21] per Gleeson CJ.}

Case management – fast track

The Federal Court has recently trialled a ‘fast track’ process (also known as a rocket docket) which has shown very promising results in the melbourne registry, with high settlement rates and efficient resolution. The process allows parties and the court to focus on the key matters in dispute, and provides parties with the certainty of knowing that a dispute will be finalised in a relatively short time period. The ‘Fast Track Directions’ allow judges to direct that a matter be conducted as a fast track matter but the court does not expect this power to be used very much in practice.

Of the 64 matters finalised under the fast track, only 16 have required final judgment. The majority of matters have been in the areas of trade practices or intellectual property—both types of disputes characterised by lengthy matters before the courts. The average time to finalisation for fast track matters was 118 days, with judgments delivered in an average of 35 days.258

From April 2009 the fast track process has been rolled out across all Federal Court registries.

RecommendATIon 8.7

The Attorney‑General, acknowledging the positive contribution to efficiency and proportionality made by the Federal Court’s Fast Track, should encourage the Federal Court to identify further scope for parties to use the Fast Track, or specific Fast Track processes.

Action; Triage; Outcomes; Proportionate cost.

Resolving disputes at the lowest appropriate level

lower level courts, and lower divisions within courts, generally have more streamlined and simpler procedures, and are set up to deal with a high volume of less complex matters. Extension of jurisdiction to the lower level courts wherever appropriate will ensure that matters are dealt with at the most suitable level, and that less complex matters are dealt with by courts using the simplest and most cost effective procedures. This recommendation would apply both to the FmC and to any lower divisions of other federal courts which might be created as a result of the Government’s decision to restructure the federal court system.

RecommendATIon 8.8

Disputes should be resolved at the lowest appropriate level. The Government should confer jurisdiction for specific types of disputes on the lowest level of court available and appropriate to hear the matter. This jurisdiction will usually be in addition to jurisdiction conferred on higher courts.

Action; Triage; Outcomes; Proportionate cost.

258 _{m Pelly, ‘Fast track hits road’ 24 April 2009, The Australian; A Boxsell, ‘Fast track wins judges’ vote’ 24 April 2009, Australian}

Specific types of litigants and litigation