One objective of active case management is to encourage and require the parties, their lawyers and those funding the litigation to limit the issues in dispute. The courts have an obligation to control proceedings but it is also up to the parties to not take unnecessary steps or burden the court with superfluous documents or applications. The courts are and have been actively managing cases for many years. The courts have inherent jurisdiction to manage cases and do not necessarily need court rules to do so. Notwithstanding this, we consider there is a case for more clearly delineated, explicit powers to actively case manage. This will assist the courts and the lawyers, parties and funders to turn their minds to the real issues in dispute and the most efficient means of resolving those issues.
4.1.2 Position in Victoria
Active judicial case management is also referred to as ‘managerial judging’. The proactive judicial management by individual judges of individual cases is one aspect of this process. Another equally important aspect is the systems used by the courts for the control of the overall caseload of the court. Such systems encompass not only the mechanisms for the assignment and control of cases by judges, but also computerised and other methods of tracking the status and progress of cases. Managerial judging and case management seek to shift the balance towards judicial rather than lawyer or party control of litigation. Apart from controlling interlocutory steps necessary to prepare the matter for trial, judges can also act in a ‘facilitative’ rather than an adjudicative manner, by encouraging the parties to settle their dispute or to narrow the issues required to be tried.65
As noted above, the Supreme Court and the County Court have been actively managing cases for many years. One of the features of the recently announced ‘new approach’ in the Building Cases List in the Supreme Court is that: ‘Judges will be more active and pro-active in exercising their powers in order to seek to achieve a just resolution of building disputes in a speedy and efficient manner.’66
According to the Magistrates’ Court, until the recent advent of judicial registrars, the Magistrates’ Court lacked the resources to engage in active case management.67 The Magistrates’ Court Rules were
amended in 2005 to include a new Part 5: ‘Overriding Objectives and Case Management’.68 Part 5
incorporates:
an overriding objective •
an obligation on the parties to ‘help the court to further the overriding objective’ •
a requirement that the court further the overriding objective by active case management. •
Pursuant to rule 1.22(2), active case management includes—
(a) encouraging the parties to cooperate with each other in the conduct of proceedings; (b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and a hearing, and accordingly disposing summarily of the others;
(d) deciding the order in which the issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate, and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case; (g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion; (j) dealing with the case without the parties needing to attend court; (k) making use of technology;
(l) giving directions to ensure that the hearing of a case proceeds quickly and efficiently; (m) limiting the time for the hearing or other part of a case, including at the hearing the
number of witnesses and the time for the examination or cross-examination of a witness.
55 Submission ED2 5 (Judge Tom Wodak ).This is a valid point; however, we consider there may be ways around this problem: for instance, the court could contact the solicitors involved in other matters and determine whether their matter might be ready for trial or able to be made ready for trial quickly. 56 Submission ED2 5 (Judge Tom Wodak). 57 Submission CP 55 (Magistrates’ Court
of Victoria). The court’s view is that a docket system will only work in courts that have small numbers of complex cases.
58 Submissions CP 41 (TurksLegal and AXA) and ED2 16 (Law Institute of Victoria).
59 See, in particular, recommendations as to pre-action protocols, alternative dispute resolution, overriding obligations and overriding purpose, and summary judgment. 60 Crown Counsel Victoria, Office of
Master and Costs Office Report to the Attorney General (2007) 9.
61 Submission ED2 5 (Judge Tom Wodak). This is a valid point. The commission notes, however, that CourtView, which is part of the ICMS, allows for the integration of major court systems and requirements, including case management and docketing. The ICMS may be capable of supporting a docket system. The ICMS is discussed further below.
62 Sage et al (2002) above n 10, 21–3. 63 An ‘administrative mention notice’ as
currently used in the County Court, or something similar, could be adopted to limit the number of hearings required: See discussion of telephone directions hearings later in this chapter. 64 Following Maureen Solomon’s review
(which recommended the adoption of a docket system), the Federal Court set up various committees to develop court procedures to enable the introduction of a docket system. A pilot was subsequently established in the Melbourne Registry, after which the docket system was introduced across all registries: Sage et al (2002) above n 10, 3 and 8. See also Australian Law Reform Commission,
Review of the Federal Civil Justice System, Discussion Paper No 62
(1999), [9.1].
65 See the Australian Law Reform Commission, Review of the Adversarial
System of Litigation: Rethinking Family Law Proceedings, Issues Paper No 22
(1997) 241–66.
66 Supreme Court (2008) above n 25, 1. 67 Submission CP 30 (Magistrates’ Court). 68 Magistrates’ Court Civil Procedure
5
Chapter 5
Case Management
This rule is based on rule 1.4 of the UK Civil Procedure Rules (1998).69 There is no equivalent provision
to this rule in the Supreme or County Court Rules.
4.1.3 Other models
Australia
The Federal Court
The Federal Court is seen to be actively managing cases as part of its docket system. Active judicial case management is a fundamental part of the docket system.
New South Wales
As discussed in Chapter 3, in NSW provisions relating to case management are now embodied in the
Civil Procedure Act 2005 (NSW).70 According to Justice Hamilton:
This is both to mark their central importance in modern procedure and to ensure that no argument can be raised that a case management procedure or sanction is beyond rule maker power.71
The Family Court
Division 12A of the Family Law Act 1975 came into effect in 2006. It gives three clear directives to judges. They are to actively control, direct and manage court proceedings; those proceedings are to be conducted in a way that promotes cooperation between the parties (specifically, child-focused, shared parenting); and they are to be conducted without undue delay, with as little formality, and with as little legal technicality, as possible. Judges may also speak directly to children during proceedings, though not as witnesses.72
This approach was developed for a number of reasons, one of which was the pressure caused by the increase in the number of self-represented litigants in the past decade.73 The pilot model was initially
intended to introduce benefits such as the saving of time and cost.74 Of particular note is section 69ZN
of the Family Law Act 1975, which sets out the principles for conducting child-related proceedings. The second principle provides that:
The court is to actively direct, control and manage the conduct of the proceedings.75
Court-conducted mediation and case conferences
Court-conducted mediation and case conferences conducted by court officers are also seen as part of active case management. Chapter 4 of this report deals in detail with alternative dispute resolution, including court-conducted mediation in Australia. Case conferences are discussed further below.
Overseas
United Kingdom
As discussed in Chapter 1, in his review of the civil justice system in England and Wales, Lord Woolf concluded that an unacceptable situation had arisen out of ‘unmanaged adversarial procedure’.76
In his view, active judicial management of cases was necessary in order to assist in achieving the stated objectives of improved access to justice through the reduction of inequalities, cost, delay and complexity and to introduce greater certainty as to timescales and costs. The Civil Procedure Rules (UK) emphasise active case management.77
United States
Commentators suggest that the United States has been leading the way in active judicial
management.78 The Civil Justice Reform Act 1990 introduced mandatory case management and ADR
in the Federal Court.
Continental Europe and Japan
There is a culture of managerial judging in continental Europe and Japan is also moving in this direction.79 Obviously in systems where courts take a more ‘inquisitorial’ approach to investigation and
fact finding, this will result in more proactive judicial control of the proceedings. Professor Zuckerman’s comparative review of common law and civil code countries is discussed below.