El desorden y la trascendencia

Pre‑action protocols and pre‑trial examinations

The opportunity to resolve disputes will be improved by identification of the real issues in dispute as early and as cost effectively as possible.

In the uk, lord Woolf’s 1996 report on Access to Justice led to the introduction of pre‑action protocols in the courts of England and Wales setting out procedures that parties must undertake prior to commencing an action in court. Pre‑action protocols can contribute to changing the culture of courts and lawyers by entrenching an expectation of early cooperation in resolving disputes. They do so by encouraging early action to:

identify what the dispute is actually about, so that parties may address what the concerns are

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directly

obtain information that may assist to limit the scope of a dispute, or

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obtain information that is necessary before parties are able to make informed attempts to settle

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the dispute.

Pre‑action protocols and similar processes have since been implemented in several jurisdictions, particularly in personal injury, transport accident and workers’ compensation claims.242 _Recent

changes in the area of family law also mandate certain pre‑action procedures, including compulsory FDR.

The term ‘pre‑action protocol’ has been used to describe a wide range of processes, from mandatory pre‑action mediation through to targeted or expansive information and evidentiary exchange. Consequently, introduction of pre‑action protocols will need to be specific as to what is and is not envisaged.

Not all matters that appear before the courts will be suitable for pre‑action protocols—for example, in the migration jurisdiction, claims have already been through an extensive merits review process, and there is a high volume of relatively simple proceedings with a very low success rate and a basis of administrative review. Introducing additional pre‑action steps in this process is likely to extend the process and increase costs.

As a first step, pre‑action procedures might best be targeted at types of proceedings that tend to be complex and take a long time to resolve. As has already been identified, 54 per cent of taxation matters, 43 per cent of competition law matters, 40 per cent of consumer protection matters, 30 per cent of human rights matters and 22 per cent of intellectual property matters in the Federal Court were over 18 months old at the time of finalisation. Implementation of pre‑action protocols might usefully begin with matters of those types (depending on a more detailed analysis of suitability). The design of pre‑action protocols needs to take into account some of the challenges identified through the uk experience, including:

to ensure proper participation in the pre‑action procedures by parties, effective enforcement

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mechanisms and/or sanctions are crucial

to avoid excessive front‑loading of costs, as has been reported in England and Wales, pre‑

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action requirements should not be excessively detailed and should only require action that is reasonable and proportionate in the circumstances, and

safeguards to avoid the misuse of pre‑action protocols as a litigation strategy, to inconvenience

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or intimidate the other party.

In addition, it will be important to consider the design and applicability of pre‑action protocols in cases where one or more parties is self‑represented.

RecommendATIon 8.1

Pre‑action protocols

The Attorney‑General’s Department should work with the federal courts to determine the types of matters suitable for pre‑action protocols. Pre‑action protocols should set out requirements for action prior to commencing proceedings, particularly exchange of information between the parties, and should be supplemented by effective sanction or enforcement mechanisms. To ensure costs of compliance with a protocol do not exceed the benefits, the obligations of a protocol should be reasonable and proportionate, and directed to identifying the real issues in dispute and appropriate pathways for resolution.

Discovery

Opinions on the efficacy of different forms of discovery are mixed. For example, while the Federal Court rules do not permit general discovery as of right, the practice and experience of judges and practitioners varies. Nonetheless, it is generally acknowledged that the cost of full discovery is too high—examples include:

Spigelman CJ (NSW Supreme Court) noted that ‘when senior partners of a law firm tell me, as

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they have, that for any significant commercial dispute the flag‑fall for discovery is often $2m, the position is not sustainable’.243

middleton J (Federal Court) has referred to cases such as multiplex where estimates of $25m for

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discovery where the total claim was $100–150m; in another case (not named) the amount in dispute was $80,000, yet 800,000 emails were discovered.244

The vast majority of documents obtained through discovery are not of sufficient relevance to be used in the case. For example, the 85,000 documents (comprising over half a million pages) put before the court in Seven Network Ltd v News Ltd [2007] (C7) amounted to only 15 per cent of the discovered documents.245

“Spigelman CJ (NSW Supreme Court) noted that ‘when senior

partners of a law firm tell me, as they have, that for any significant

commercial dispute the flag-fall for discovery is often $2m,