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1 of 1 DOCUMENT: Australian Bar Review/(2013) 38 Aust Bar Rev No 1/Articles/Appropriate dispute resolution and
the role of litigation
(2013) 38 Aust Bar Rev 55
Appropriate dispute resolution and the role of litigation
Michael Legg
*
and Sera Mirzabegian
^
Recent policy developments in the area of dispute resolution have involved the promotion of non-court mechanisms for
the prevention and resolution of disputes. This policy approach, which was adopted by the former Federal Government,
is to be achieved through a strategic framework for access to justice that includes creating incentives for people to
resolve disputes at the most appropriate level (eg, handling matters personally, using complaint systems, ADR, courts)
and a triage system that directs disputants to the most appropriate form of dispute resolution. Although this policy is
aimed at avoiding litigation, for the policy to be effective government, courts and lawyers must compare the merits of
litigation, or particular processes within it, to ADR. For some disputes, litigation will not just be appropriate but a
necessity because of the manner in which it operates, the procedures it employs or the outcome that it produces. This
article explores the positive aspects of litigation from two perspectives: public policy and the litigation tools available
to address the practical necessities of the issues arising in a dispute.
Introduction
While access to justice has traditionally been associated with access to a court,
1
the previous Federal Government
sought to broaden the meaning of access to justice so as to encompass a wider range of activities, most notably, the use
of alternative dispute resolution (ADR).
2
In September 2009, the then Government's Access to Justice Taskforce
recommended the promotion of non-court mechanisms for the prevention and resolution of disputes and more
aggressive approaches to ensuring that lawyers and parties seek to resolve disputes prior to going to court.
3
These
recommendations were to be achieved through a strategic framework for access to justice that included creating
incentives for people to resolve disputes at the most appropriate level (eg, handling matters personally, using complaint
systems, ADR, courts) and a triage system that directs disputants to the most appropriate form of dispute resolution.
4
The above recommendations became government policy as illustrated by the enactment of the Civil Dispute Resolution
Act 2011 (Cth) which requires parties to take genuine steps to resolve the dispute before commencing legal
proceedings5 and increases in court fees 'to send pricing signals to people that the courts should not be the first port of
call for resolving disputes and to encourage them to use ADR processes where appropriate'.
6
Although much has been said about the negative aspects of litigation -- too costly, too slow, too adversarial, too
uncertain, too damaging to relationships and too inflexible -- the recent developments in government policy require
consideration of the positive role of litigation so that its merits may be compared to ADR. This is in keeping with the
concepts of appropriateness and triage that form part of the current access to justice framework. For some disputes,
litigation will not just be appropriate but a necessity because of the manner in which it operates, the procedures it
employs or the outcome that it produces. Other forms of dispute resolution may not be able to achieve the same goals.
The triage function of matching a dispute with a resolution method requires a working knowledge and understanding of
litigation and the various alternative methods for resolving disputes.
7
Litigation, like the many forms of ADR, is not a
monolithic procedure that mechanically proceeds through pre-determined steps for every dispute. Rather, there are a
range of court procedures that can be employed in civil litigation depending on the needs of the dispute.
Consequently, this article explores the positive aspects of litigation from two perspectives: public policy and the
litigation tools available to address the practical necessities of the issues arising in a dispute. There are powerful public
policy arguments that support the need for litigation such as enabling the rule of law, developing precedents and
Page 1
enforcing the requirements of procedural fairness. Not all disputes implicate these public policy concerns, but when
they are implicated access to a court is necessary and a lack of access may be detrimental to the disputants and to
society more broadly. There are also a range of court procedures that provide practical assistance to a disputant in ways
that ADR cannot. This article looks at the availability of injunctions, freezing orders, search orders, discovery,
subpoenas and default judgments. Each of these procedures responds to the particular needs of a dispute -- urgent relief,
disclosure of information and access to the state's enforcement mechanisms -- so as to allow for the appropriate
resolution of that dispute. However, the need for, or advantage of, litigation, is frequently not an absolute and will alter
depending on other factors that are of significance to a disputant, such as cost and delay. Nonetheless, a clear
understanding of the benefits of litigation is needed to ensure sensible government policy as well as for lawyers and
judges to assess whether litigation is the appropriate dispute resolution method for a particular dispute.
Enabling the rule of law, developing precedents and ensuring procedural fairness
Application and development of the law
The rule of law is a bulwark against tyranny by government by requiring all members of society, including government,
to be bound by and act consistently with the law. The rule of law promotes justice and individual liberty by requiring
equality before the law, removing arbitrariness and acting as a restraint upon the exercise of power.
8
Litigation is the
practical way in which the rule of law is secured as it involves the application of the law and the vindication of rights.
9
Litigation is not just about the peaceful resolution of disputes; it is about preventing injustice, not just for the litigants
but for society in general.
10
Litigation involves the public resolution of a dispute by an independent judiciary applying
the law as set out in the Australian Constitution, enacted by parliament and/or developed through the common law
system. Disputes are resolved by, and allow the articulation of, social values as embodied in, or worked out through, the
law.
11
In short, the court system and litigation enable the rule of law. However, despite litigation being a bastion of the
rule of law, the courts have always permitted parties to settle their disputes without resort to the courts, or after
proceedings have been initiated. If the rule of law can be maintained with most disputes being resolved without
adjudication then the question arises as to which disputes need to be litigated.
Litigation may be a necessity when what is sought to be enforced is a 'right'.
12
Where rights are at stake, to not resort to
litigation may be an unjustified or coerced accommodation.
13
The concept of rights has many meanings, including
human rights or fundamental rights such as those protected by a Bill or Charter of Rights. In that vein it has been
suggested that public law cases, such as those involving constitutional issues or government regulation should be
determined by the courts.
14
A sub-set of these may be disputes dealing with conduct which impacts on the wider public
or where there is a need for deterrence through court findings, publicity or court sanctioned remedies.
15
Examples
include securities laws and anti-competitive conduct prohibitions which affect investors/consumers and the market.
16
Environmental litigation frequently implicates the public interest as shown by its use to protect national parks,
endangered fauna and world heritage areas such as Fraser Island, Tasmanian Wilderness, Lemonthyme and Southern
Forests.
17
Rights may also be private such as those conferred by property or contract or protected by tort. These private
law rights may be issues of great public concern, such as the requirements for an enforceable contract or the standard for
liability in relation to defective products.
18
A common thread here is the need for a public examination of the conduct,
whether it be in the form of government action or the alleged wrong doing of a private actor. A further factor is the need
for society at large to endorse or condemn certain acts based on their consistency with the laws of that society. The use
of confidential dispute resolution mechanisms may undermine the protection and elaboration of rights, and
denouncement of wrongs.
The types of disputes that may require litigation can be further illustrated by reference to the law on arbitration. Some
disputes are not susceptible to resolution by private arbitration because they are seen as being in the exclusive domain
of a national court, such as those concerning criminal prosecutions, divorce, intellectual property, competition law,
securities transactions and insolvency.
19
The common element to these types of disputes is:
a sufficient element of legitimate public interest in these subject matters making the enforceable private resolution of disputes
Page 2
concerning them outside the national court system inappropriate ... the identification and control of these subjects was the
legitimate domain of national legislatures and courts.
20
A further source of elaboration is those disputes, which even if settled, require court approval. For example pecuniary
penalties in competition and securities law cases and disputes in the form of a representative proceeding or class action
must be approved by a court.
21
Competition law implicates the public interest because 'free competition is essential for
the welfare of the state'
22
and in evaluating an agreed penalty 'the court is not merely giving effect to the wishes of the
parties, it is exercising a public function and must have regard to the public interest in doing so'.
23
Similar principles
have been applied in the area of securities regulation.
24
In class actions the court is required to assess a settlement to
determine if it is fair and reasonable for the group as a whole, which may include many absent group members.
25
The
purpose behind court approval is partly to protect the interests of the absent group members as a matter of procedural
fairness,
26
but it is also necessary because class actions implicate the public interest on the basis that they facilitate
compensation and act as an adjunct to government's enforcement of the laws.
27
Related to using litigation to determine rights and issues of public importance is the development of precedent.
Litigation results in the development of precedent which guides the future action of all members of society.
28
Precedents guide later action as people know what the law requires. The diversion of disputes to ADR may leave
society worse off because the opportunity to render an authoritative interpretation is lost.
29
This may even impact on
those ADR mechanisms that use existing law as their baseline for resolving disputes.
30
Without the continuation of
litigated outcomes, the existing law may not develop thus creating greater uncertainty for disputants. Uncertainty may
make a mediated or arbitrated outcome more difficult or costly to achieve.
31
For parties to assess what they are giving
up or to have criteria for assessing a compromise they may desire a benchmark such as precedent.
32
A focus on rights, disputes with an element of public interest and precedents arguably results in an overly broad range
of cases that need litigation. Even when disputes involve rights, a focus only on rights may not be desirable because
other values or interests may be at stake such as participation, empowerment, dignity, respect, empathy, emotional
catharsis, privacy or efficiency.
33
Indeed a 'rights-based model assumes that the source of conflict is in all
circumstances an uncompromisable moral principle or an indivisible good'.
34
Such an approach can foreclose the
availability of a broader range of solutions to a dispute. Some disputes may not turn on the recognition of a right
because the existence of the right is unequivocal. In such cases, the application of the right to a factual situation can take
place outside the courtroom. For example, in cases of discrimination based on age, race, sex, or disability the law
clearly prohibits such conduct
35
and so the contravention may be able to be remedied without litigation.
36
Where the
alleged discrimination is novel or has been repeated then resort to the court may be necessary to have the right
recognised or the perpetrator sanctioned. Further, commercial disputes about contractual or property rights may not
require the recognition or enforcement of the right, but rather, the identification and remedying of harmed business
interests, which may include a quantification of compensation for rights that have been breached.
37
The essence of
interest-based negotiation or mediation is to identify interests and expand the range of options so that it becomes
possible to equally satisfy the disputants' interests.
38
The adoption of a rights-based approach to disputes that do not
need to be about rights can lead to sub-optimal results for both parties.
Further, the acceptance of the desirability of rights protection and precedent production through litigation must still
accept three realities. First, the initiation of litigation is a voluntary act on the part of the plaintiff. A person does not
have to commence litigation regardless of how important the issue to be determined.
39
Second, courts encourage
settlement and thus the loss of rights-recognising or precedent-making opportunities. Third, while the elucidation of
rights and development of precedent may advance the public good it is the individual litigants in a particular case that
must bear the emotional and financial cost of litigation.
40
Leading precedents in the law have exacted high tolls on the
litigants. In Donoghue v Stevenson, where the tort of negligence was first recognised, and in Salomon v Salomon & Co,
which established a company's separate legal existence, both plaintiffs were bankrupt before being vindicated.
41
Some parties may prefer the speed, certainty or privacy of an ADR mechanism rather than insisting on the protection of
Page 3
a right or the creation of a precedent. Equally, and sometimes due to necessity, litigation must be embarked upon
because nothing less than the principled and public judgment of a court will suffice in circumstances where the dispute
is about contested rights, matters of public importance or a precedent.
Procedural protections
The procedural protections afforded to parties through the litigation process may encourage parties to use litigation in
the resolution of their dispute. In International Finance Trust Co Ltd v NSW Crime Commission Chief Justice French
explicated the content of procedural fairness as follows:
Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident
of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and
provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and
argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may
vary.42
Empirical research has shown that people desire the resolution of disputes through a reasoned decision by a neutral third
party based on admissible evidence and the correct application of the applicable law.
43
Further, fairness has been found
to be a critical factor in citizen satisfaction with, and endorsement of, institutions, including compliance with
outcomes.44 Professor Judith Resnick has observed:
adjudication is itself a democratic practice -- an odd moment in which individuals can oblige others to treat them as equals as they
argue in public about their disagreements, misbehavior, wrongdoing, and obligations. Litigation forces dialogue upon the unwilling
(including the government) and, momentarily, alters configurations of authority. The social practices, the etiquette, and a myriad of
legal rules shape what those who enter courts are empowered to do.
45
Procedural protections may be particularly significant where power imbalances exist. For example gender dynamics in
family, anti-discrimination, domestic violence and employment situations have been problematic for mediation.
46
Similar issues have been raised in relation to minorities and aboriginal people.
47
Informal procedures can allow
unsavoury conduct to persist in both the individual case and systemically as well as disadvantaging a party seeking
resolution of a dispute.
48
However power imbalances, especially due to a lack of resources, can also be exploited in litigation. Steps in the
litigation process, such as discovery, can be used to bludgeon an opponent into settlement because they provide an
opportunity to impose costs and delay. As a result the protections afforded by procedural fairness must also be
supplemented by case management by the judiciary to ensure that prolonged procedural skirmishes do not undermine
the requirement of a fair trial.
49
It is possible to adopt procedural protections in ADR processes.
50
For example mediation and arbitration can both
provide an opportunity to be heard.
51
A mediation where a person is able to directly address another disputant has been
argued to allow for them to be more meaningfully heard than at a trial where evidence is adduced through examination
and subject to the rules of evidence.
52
The mediator/arbitrator can be chosen in a way to ensure they are neutral or
independent. Arbitration can also provide reasons.
53
However, the confidentiality associated with these processes
restricts external supervision -- there is no open justice.
54
Further, most ADR mechanisms also lack the coercive powers
of the state which allows judges to direct how the case will be prepared and tried, and if those directions are not
complied with resort to a range of further orders, such as striking out claims, proceedings or defences, making costs
orders, or in extreme circumstances punishing for contempt.
55
A court can enforce the requirements of procedural
fairness and blunt the use of cost and delay for tactical advantage.
Practical court procedures
Litigation offers a range of tools or procedures that can be employed to achieve specific objectives. Some of these are
Page 4
only available from courts due to the courts being able to call on coercive powers that are enforced by the state to ensure
compliance with those procedures. Put another way, they do not depend on a disputant's consent or agreement.
Consequently, the commencement of litigation to be able to access those procedures may be the appropriate dispute
resolution step to take. However, litigation may not need to be pursued to finality for these procedures to be employed.
Indeed the most appropriate way to resolve a dispute may be to combine litigation with one or more forms of ADR.
Urgent relief
A practical reason why litigation might be an appropriate method of dispute resolution is the availability of urgent relief
to a disputant including interim injunctions, freezing orders (also known as Mareva orders) and search orders (or Anton
Piller orders).
56
The court has the ability to hear and determine applications for these forms of relief prior to the
commencement of proceedings,
57
outside ordinary sitting hours (at least in some jurisdictions) and on an ex parte basis
(that is, in the absence of the defendant) so that a plaintiff can protect its position in urgent situations.
Interim or interlocutory injunctions
A party may seek an interim or interlocutory injunction if it has a right it wishes to establish and enforce by litigation
and that right is at risk of being damaged in the time before the court can determine the dispute.
58
A plaintiff may seek
an interim injunction before the commencement of proceedings and it is not uncommon for a plaintiff to apply for, and
obtain, an interim injunction in the absence of the defendant. In such a case, it is common practice (and usually
desirable) for the order to operate until a named day, at which point the defendant will have the opportunity to contest
the continuation of the order. Where proceedings have been commenced, a party may seek an interlocutory injunction to
protect the right in question and restrain the defendant from damaging it. The purpose of an interim or interlocutory
injunction is to preserve the status quo until such time as the litigation is determined.
59
Thus, a plaintiff seeking to
prevent the defendant from acting in such a way that would damage or destroy an underlying right claimed by the
plaintiff may resort to litigation to protect its position and to minimise any damage it might suffer by reason of the
threatened conduct.
Freezing orders
Where a plaintiff has a real concern that the defendant might dispose of or diminish the value of assets that might
otherwise be available to satisfy a judgment debt or a prospective judgment debt, the plaintiff may apply to the court for
a freezing order, also known as a Mareva order. A freezing order is an order restraining a defendant from removing any
assets located in or outside Australia or from disposing of, dealing with or diminishing the value of those assets.
60
The
court may make a freezing order 'for the purpose of preventing the frustration or inhibition of the court's process by
seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied'.
61
A
party to a dispute may apply for a freezing order if it has obtained a judgment in its favour or alternatively, before
judgment if the applicant has a good arguable case on an accrued or prospective cause of action.
62
Because of its effect on the defendant's ability to deal with its assets, a freezing order is a strategically important form of
urgent relief which is available to a plaintiff (or a prospective plaintiff) through litigation. Further, and significantly, the
court has the power to make a freezing order against a third party (that is, a non-party to the litigation) in certain
circumstances, including where the third party has a power of disposition over assets of the judgment debtor or
prospective judgment debtor or is in possession of or is in a position of control or influence over the assets.
63
Search orders
A party's ability to obtain a search or Anton Piller order through the court process provides yet another reason why
litigation might need to be invoked in certain circumstances. The court may make a search order 'for the purpose of
securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of
securing the preservation of evidence which is or may be relevant to an issue in the proceeding or anticipated
proceeding'.
64
The court may make a search order if it is satisfied that the applicant has a strong prima facie case on an accrued cause
Page 5
of action, the potential or actual loss or damage to the applicant will be serious if the order is not made, and there is
sufficient evidence that the respondent possesses 'important evidentiary material' and there is a 'real possibility' that the
respondent might destroy that material or cause it to be unavailable for use in proceedings.
65
If a search order is made,
the court is required to appoint an independent solicitor to supervise the execution of the order.
66
The availability of interim relief in alternative forms of dispute resolution
The power of the courts to grant urgent interim relief means that litigation might not only be the most appropriate
method of dispute resolution, but a necessary one. This raises the question of whether such urgent relief is available in
other forms of dispute resolution.
A party seeking to resolve a dispute by negotiation or mediation will not be able to obtain urgent interim relief through
those ADR processes unless by agreement with the opposing party. However, a party to a domestic arbitration under the
uniform commercial arbitration legislation recently enacted in New South Wales, South Australia, Victoria, Tasmania,
Western Australia, the Northern Territory and soon to be enacted in the other states and territory
67
might be able to seek
interim relief from the arbitral tribunal or alternatively, from the court.
Pursuant to s 17(1) of the Commercial Arbitration Act 2010 (NSW), 'unless otherwise agreed by the parties', the arbitral
tribunal may grant interim measures at the request of a party. An interim measure is defined in s 17(2) as a temporary
measure by which the arbitral tribunal orders a party to: (a) maintain or restore the status quo pending determination of
the dispute; (b) take action that would prevent (or refrain from taking action likely to cause) harm or prejudice to the
arbitral process; (c) provide a means of preserving assets out of which an award might be satisfied; or (d) preserve
evidence relevant and material to the resolution of the dispute. An interim measure issued by an arbitral tribunal under
the law of New South Wales is, pursuant to s 17H(1) of the Commercial Arbitration Act 2010 (NSW), 'to be recognised
as binding and, unless otherwise provided by the arbitral tribunal, enforced on application to the Court, subject to the
provisions of section 17I'. Section 17I sets out the grounds upon which 'the Court' (defined as the Supreme Court of
New South Wales, unless the parties agree in writing that the District Court or the Local Court has jurisdiction under the
Act)
68
may refuse to recognise and enforce an interim measure.
A party to arbitral proceedings under the Commercial Arbitration Act 2010 (NSW) may also seek interim measures
from the court. Section 17J(1) provides that the court has 'the same power of issuing an interim measure in relation to
arbitration proceedings as it has in relation to proceedings in courts'. In such a case, the court is required to exercise the
power 'in accordance with its own procedures taking into account the specific features of a domestic commercial
arbitration'.
69
Section 9 of the Commercial Arbitration Act 2010 (NSW) further acknowledges that a party may request
interim relief from a court before or during arbitral proceedings, stating that such a request and the court's grant of the
interim measure is not incompatible with an arbitration agreement.
Although a party to arbitral proceedings under the Commercial Arbitration Act 2010 (NSW) is entitled to seek interim
measures from an arbitral tribunal, there are four limitations on the party's ability to do so.
First, the dispute must fall within the scope of the Commercial Arbitration Act 2010 (NSW). A dispute may be resolved
by arbitration under the Act if the parties to an arbitration agreement have, at the time of the conclusion of that
agreement, their places of business in Australia and have agreed (in writing) that the dispute is to be settled by
arbitration.
70
Section 7 of the Act prescribes the form of the arbitration agreement and is a 'critical provision as
non-compliance with its requirements will mean that the [Act] does not apply to the arbitration agreement'.
71
Not every
dispute will therefore be capable of being resolved by arbitration under the Act.
Second, the parties may contract out of the entitlement to seek interim measures from the arbitral tribunal. That is
because the power of the arbitral tribunal to grant interim measures under s 17(1) of the Commercial Arbitration Act
2010 (NSW) is qualified by the phrase 'unless otherwise agreed by the parties'. If the parties did opt out, and the need
for interim measures arose, 'the parties would have no choice but to resort to the court'.
72
Third, the arbitral tribunal does not have any power to grant interim measures prior to the commencement of the arbitral
proceedings. While s 17(2) of the Commercial Arbitration Act 2010 (NSW) provides that an interim measure may be
Page 6
granted 'at any time prior to the issuance of the award by which the dispute is finally decided', the arbitral tribunal must
first be appointed under s 11 in order to exercise the power in s 17. Pursuant to s 11(1) of the Commercial Arbitration
Act 2010 (NSW), the parties are generally free to agree on a procedure appointing the arbitrator or arbitrators and
s 11(3) sets out the applicable procedure failing such agreement. The Act is silent on when the appointment process
must occur; however one would expect that arbitrators could only be appointed upon commencement of the arbitral
proceedings, that is, once an arbitration is on foot and not before. This is in direct contrast to the position of a court,
which has an existence independent of any particular dispute, and has the power to grant interim relief prior to the
commencement of court proceedings. Indeed, s 9 of the Commercial Arbitration Act 2010 (NSW), which states that it is
not incompatible with an arbitration agreement for a party to seek interim measures from a court and for the court to
grant those measures before arbitral proceedings, enables a party to a dispute which falls within the scope of the Act to
seek urgent relief from the court prior to the commencement of the arbitral proceedings. That provision is an
acknowledgment of the arbitral tribunal's limited ability to give such relief where arbitral proceedings have not yet been
commenced.
Fourth, the arbitral tribunal cannot grant interim measures on an ex parte basis. Although the Act is based on the Model
Law, Arts 17B and 17C of the Model Law were omitted from the Act.
73
Article 17B provides for ex parte requests for
interim measures together with applications for preliminary orders directing parties not to frustrate the interim measures
and Art 17C of the Model Law outlines the procedural steps in relation to preliminary orders. A preliminary order 'holds
the position until the tribunal is able to decide whether to grant an interim measure'.
74
As Doug Jones has noted, the
omission of Arts 17B and 17C from the Act means that where a party urgently needs to apply for an interim measure on
an ex parte basis (such as where there is a risk of assets being dissipated or evidence being destroyed), 'the requesting
party could only apply to the court for such an ex parte measure'.
75
Accordingly, urgent relief is not available in most ADR mechanisms, and where it is available, such as in domestic
arbitration, there are a number of limitations. Recourse to litigation to be able to obtain urgent relief may therefore be
necessary and that need must be taken into account in the operation of any triage system which directs disputants to the
most appropriate form of dispute resolution.
Compelling disclosure of information
One of the advantages of litigation is that it compels the disclosure of information through processes such as
preliminary discovery, discovery and subpoenas. Compulsory disclosure of information is particularly critical where the
dispute is of such a nature that it cannot be resolved until information uniquely in the possession of one party is made
available to the other party -- a levelling of the playing field. But even where there is no such information deficit, the
compulsory disclosure of information through the litigation process may assist in the efficient resolution of the dispute
by narrowing the issues and assisting parties to identify what is really in dispute.
The preliminary discovery process provides a good example of when recourse to the courts will not only be desirable,
but essential in order to resolve a dispute. The court may order preliminary discovery to assist the applicant to ascertain
(a) the identity or whereabouts of a prospective defendant or (b) whether or not the applicant is entitled to make a claim
for relief.
76
Preliminary discovery is thus necessary where the prospective plaintiff does not have sufficient information
to identify the party or parties to the dispute or to obtain information to reach an informed decision about whether they
should commence proceedings.
Once proceedings have been commenced, the compulsory disclosure of information in litigation occurs through
discovery and subpoenas. Discovery is the process by which parties to proceedings obtain documents from each other.
Once filed, a subpoena is an order of the court compelling a party or a non-party to the litigation to produce certain
documents or to attend court and give evidence. Although the discovery process 'constitutes a very serious invasion of
privacy and confidentiality of a litigant's affairs'
77
it has been held that there is a strong public interest in allowing it to
do so because 'discovery promotes the ascertainment of truth in litigation and is therefore an essential part of the proper
administration of justice'.
78
This is highlighted by some courts' rules which specify that a party must disclose 'the
documents [that] adversely affect the party's own case'.
79
Discovery affects the assessment of the credibility of
witnesses and makes it more difficult for litigants to conceal the truth.
80
Further, discovery might improve the prospects
Page 7
of settlement by allowing the parties to better appreciate the strengths and weaknesses of both their case and their
opponent's case.
81
Where discovery is conducted by the parties on a cooperative and professional basis, discovery also
assists in narrowing the scope of the dispute, taking out some of the guesswork in the dispute resolution process.
82
Moreover, the process of discovery might aid in the final resolution of a dispute by ADR, particularly in cases which are
document intensive and factual information is needed to understand the merits of the dispute, and to assess interests and
outcomes.
83
Despite the above advantages, the discovery process has been consistently criticised for increasing the cost of litigation.
Former Chief Justice Doyle of the SA Supreme Court has described discovery as a 'scourge', noting that 'the average
person can't afford to get involved in substantial civil litigation, even a fairly well-off person'.
84
In Palavi v Radio 2UE
Sydney Pty Ltd, then President Allsop of the NSW Court of Appeal noted that discovery 'can be a highly expensive
exercise' and that '[e]ven when all parties are well resourced, over-enthusiastic and unnecessary use of discovery
impedes the due administration of justice and undermines confidence in the court system's ability to resolve disputes
justly, quickly and cheaply'.
85
These criticisms have been responded to in a number of ways including narrowing the
scope of discovery in court rules, giving greater control over the process to the judge and requiring a heightened
standard to be met before discovery will be allowed.
86
The need for information to assist in resolving disputes has also been addressed through the pre-litigation requirements
under the Civil Dispute Resolution Act 2011 (Cth), which raises a real question about whether parties might be able to
obtain the advantages of discovery without having to participate in it. Pursuant to s 6 of the Civil Dispute Resolution
Act 2011 (Cth), an applicant who commences proceedings in the Federal Court or the Federal Magistrates Court must
file a 'genuine steps statement' at the time of filing the application unless the proceedings are excluded under Pt 4 of the
Act. The statement must specify, inter alia, the steps that have been taken to try to resolve the issues in dispute between
the applicant and the respondent.
87
Examples of such steps include the provision of 'relevant information and
documents to the other person to enable the other person to understand the issues involved and how the dispute might be
resolved'.
88
The key difference between the pre-litigation disclosure requirement in the Civil Dispute Resolution Act 2011 (Cth) and
the discovery process in litigation is that the production of documents under the former is not compulsory. Unlike the
discovery regime in litigation, the Civil Dispute Resolution Act 2011 (Cth) does not provide a party with any ability to
complain about the adequacy of the disclosure made at the pre-litigation stage. The court has no power to compel
production of documents under the Act. Instead the court may take into account the adequacy of disclosure in awarding
costs and, more generally, 'in performing functions or exercising powers in relation to civil proceedings'.
89
There are also limitations on a party's ability to obtain documents through discovery and subpoenas in a mediation and
in the domestic commercial arbitration context. Parties involved in a mediation cannot be compelled by the mediator to
produce documents by discovery or on subpoena. In the case of a domestic commercial arbitration, the parties may
obtain discovery if they have agreed that discovery is to be part of the arbitration process and failing such agreement,
the arbitral tribunal may conduct the arbitration in 'such manner as it considers appropriate' which may or may not
include discovery.
90
Further, while the Commercial Arbitration Act 2010 (NSW) enables the production of documents
pursuant to a subpoena, a party may only apply to the court for a subpoena with the permission of the arbitral tribunal.
91
These limitations are not only relevant factors in assessing what is the most appropriate method of resolving a particular
dispute but they may mean that in some cases, litigation is the most appropriate method of dispute resolution.
Access to the state's enforcement mechanisms
In some cases, a party's interests may best be served by litigation because litigation provides a quick and efficient route
to accessing the state's enforcement mechanisms. There are three types of cases in which this might occur. First, where
the opponent is thought to be dishonest. Second, where the opponent is unwilling to constructively engage in the
resolution of the dispute, especially where the dispute deals with the payment of money. Third, which may be conceived
of as a subset of the second type of case, where the dispute is unlikely to be defended.
If a party is engaged in a dispute with what is believed to be a dishonest opponent, it is unlikely that the dispute will be
Page 8
capable of being resolved by negotiation or mediation because the success of those processes ultimately depends on the
parties engaging in them in good faith. The National Alternative Dispute Resolution and Advisory Council has observed
that 'ADR processes largely rely on the good faith of the parties to the dispute and the truthfulness of their statements'.
92
Similarly, there is generally no utility in pursuing a negotiated settlement with an opponent who is not willing to attempt
to resolve the dispute. Communication between disputants is a prerequisite for successful dispute resolution by ADR.
Where a disputant is unwilling to engage in the dispute resolution process because they have limited financial means
and the dispute concerns the payment of money, careful consideration must be given to whether any dispute resolution
method will result in a worthwhile recovery or simply incur further costs.
Nevertheless, where a person is not interested in engaging about the dispute, it may be necessary to commence
proceedings so as to begin the process for obtaining and then enforcing a judgment. Such a strategy is commonly
employed where the dispute concerns the repayment of a debt, particularly where the creditor is in the business of
lending money and even if the debtor has limited financial means. The state provides a variety of options to enforce a
judgment debt including writs of execution against land or goods and garnishee orders.
93
Further, a party may
commence bankruptcy proceedings against a natural person defendant in order to enforce a judgment debt.
94
A
judgment debt may also be enforced against a defendant corporation by first serving a statutory demand under s 459E of
the Corporations Act 2001 (Cth) and then instituting proceedings to wind up the company in insolvency if it has failed
to pay the debt due under the demand.
95
These avenues for enforcement can prompt a response from a recalcitrant
opponent or allow for funds to be accessed that may not otherwise be voluntarily provided. Even if these processes do
not result in any recovery for the judgment creditor, in some cases bankruptcy or winding up might be viewed as a
satisfactory outcome.
Litigation might also be the best option for dispute resolution where the dispute is unlikely to be defended. If the
defendant fails to file a defence in the required time, a plaintiff may apply for default judgment against the defendant.
96
The default judgment procedure will depend on whether the plaintiff's claim is liquidated or unliquidated but in either
case the procedure is generally quick, efficient and cost-effective, and the effect of a default judgment is 'the same as a
judgment given after a trial'.
97
However, a defendant against whom a default judgment has been granted may seek to
have the default judgment set aside.
98
Nevertheless, and despite the risk that a default judgment might be set aside,
litigation might be necessary for a party to a dispute which is unlikely to be defended because the defendant to the
dispute is unlikely to participate in ADR methods such as negotiation and mediation. Further, there is no such default
judgment process available in a domestic commercial arbitration -- if a party to a domestic commercial arbitration fails
to communicate its statement of defence as required, the arbitral tribunal may 'continue the proceedings without treating
such failure in itself as an admission of the claimant's allegations' unless otherwise agreed by the parties.
99
Cost and delay
Even if, having regard to all of the above advantages, litigation is the most appropriate method of dispute resolution, the
need for litigation may be reconsidered if the civil justice system is too expensive to use compared to what is at stake, or
cannot resolve the dispute in sufficient time.
100
Individual disputants will weigh the need for litigation with other
concerns such as its expense. This may mean that an individual who otherwise needs access to the court system has no
choice but to turn away. The decision of the individual may also have more far-reaching social ramifications. The
respect for the rule of law, protection of rights and promulgation of precedents will all be harmed if the courts cannot be
meaningfully accessed. From a public policy perspective, the question becomes, as Dame Hazel Genn has observed,
that it is not a matter of '[h]ow much justice can we afford' but 'how much justice can we afford to forego'.
101
The
courts, and the governments that fund them, must be conscious of this connection between the decision of the individual
disputant and the larger public policy concerns.
The courts do indeed appear to be aware of the need to assist in making justice accessible and have not stood still in
trying to combat cost and delay. The concept of an overriding or overarching purpose that requires attention to justice,
cost and delay now exists in almost all Australian jurisdictions.
102
The High Court has observed that '[s]peed and
efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings'.
103
Page 9
There have also been specific procedural developments aimed at reducing cost and delay. In addition to the reforms to
discovery referred to above, two further examples are class actions and the Federal Court's Fast Track procedure.
The objective of class action litigation when introduced into the Federal Court was to provide access to justice, to
resolve disputes more efficiently, to avoid respondents facing multiple suits and the risk of inconsistent findings, and to
reduce costs for the parties and the courts.
104
The strength of the class action, when used in appropriate cases, is that the
resolution of issues common to all claims means that those issues do not need to be re-resolved in each and every
dispute, and may provide sufficient direction for all claims to be settled.
105
The class action may, due to its economies
of scale, be more efficient than if claimants pursued redress individually through ADR.
106
However, class action
procedures may also utilise ADR to assist in the resolution of multiple claims, thus providing a further example of a
litigation procedure than can be effectively combined with ADR.
107
A Fast Track List was piloted in the Victorian Registry of the Federal Court from May 2007 which culminated in the
national adoption of a Fast Track Practice Note in April 2009.
108
The Fast Track involves a number of innovations
including replacing pleadings with simplified Fast Track Statements, replacing numerous directions hearings with a
Scheduling Conference and a Pre-Trial Conference, narrowing discovery, setting a trial date between 2 and 5 months
from the date of the Scheduling Conference, adopting a stop-watch approach to the trial and endeavouring to deliver
judgment within 6 weeks of the conclusion of the trial or the receipt of the final submissions (whichever is the later).
109
The Fast Track, like many other court rules or practice notes, incorporates ADR as an approach to resolving disputes
when appropriate.
110
However, the Fast Track excludes some types of cases and is usually limited to cases the trial of
which is not likely to exceed 5 days.
111
As a result, presumptions about litigation being time-consuming and expensive
while non-litigious alternatives are quick and cheap are not uniformly correct.
112
The Fast Track process illustrates that
litigation can be conducted quickly so as to reduce cost.
The courts must decide disputes in a principled manner which necessitates a number of steps, such as consideration of
evidence and determination of the law, that take time and cost money but procedural innovations are seeking to make
that principled approach more efficient.
Conclusion
The concepts of appropriateness and triage require regard to the particular nature of a dispute, the features of the various
available methods of dispute resolution and the interaction of those matters so that the most appropriate method of
resolving the dispute may be determined. For some disputes, litigation is an appropriate method of dispute resolution
because of public policy concerns such as enabling the rule of law, developing precedents and enforcing the
requirements of procedural fairness. Further, there are a range of court procedures that provide practical assistance to a
disputant in ways that ADR cannot, thus necessitating recourse to those procedures. A clear understanding of the
benefits of litigation, at both the policy level and by reference to the operation of particular procedures, is fundamental
to appropriate dispute resolution.
* Associate Professor, UNSW Law School, Sydney, Australia.
^ Barrister, 10th Floor Selborne/Wentworth Chambers, Sydney, Australia and Sessional Lecturer, UNSW Law School, Sydney, Australia.
1 The main human rights instruments have equated access to justice with 'a fair and public hearing by a competent, independent and
impartial tribunal established by law': International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 99
UNTS 171 (entered into force 23 March 1976) art 14. See also Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810
at 71 (1948) art 8.
2 Access to Justice Taskforce, Federal Attorney-General's Department, A Strategic Framework for Access to Justice in the Federal Civil
Justice System, September 2009, p 3. ADR is an umbrella term for processes other than judicial determination that are employed to resolve
disputes: National Alternative Dispute Resolution Advisory Council (NADRAC), Glossary of ADR Terms, at
<http://www.nadrac.gov.au/what_is_adr/ GlossaryOfADRTerms/Pages/default.aspx> (accessed 30 October 2013). In this article the focus is
generally on three forms of ADR: negotiation, mediation and domestic commercial arbitration as embodied in uniform legislation such as the
Page 10
Commercial Arbitration Act 2010 (NSW).
3 Access to Justice Taskforce, above n 2, p 58.
4 Ibid, pp 61-7.
5 For an explanation of the legislation by the Chair of the NADRAC, see J Gormly, 'A Change in Dispute Culture: The Civil Dispute
Resolution Act 2011' in M Legg (Ed), The Future of Dispute Resolution, LexisNexis, Chatswood, 2013, Ch 12.
6 Former Attorney-General for Australia, N Roxon MP, Launch of Your Guide to Dispute Resolution, Canberra, 23 July 2012 and Former
Attorney-General for Australia, N Roxon MP, Speech to the NSW Bar Association -- Alternative Dispute Resolution Workshop, Sydney,
4 August 2012.
7 The concept of matching disputes with procedures may be traced to F Sander, 'Varieties of Dispute Processing' (1976) 70 FRD 79 at 132;
F Sander and S Goldberg, 'Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure' (1994) 10 Negotiation Jnl
49; C Menkel-Meadow, 'Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases)' (1995) 83
Georgetown LJ 2663 at 2665.
8 A V Dicey, Introduction to the Study of the Law of the Constitution, 10th ed, MacMillan & Co, London, 1960, pp 188-203; The Hon John
Toohey AC, 'A Government of Laws and Not Men' (1993) 4 Public L Rev 158 at 159-60; The Hon Murray Gleeson AC, The Rule of Law
and The Constitution -- Boyer Lecture 2000, ABC Books, Sydney, 2000, p 3; The Hon Robert French, 'Boundary Conditions: The Funding
of Courts Within a Constitutional Framework' (2009) 19 Jnl of Judicial Administration 75 at 78.
9 Sir J Jacob, The Hamlyn Lectures 1986 -- The Fabric of English Civil Justice, Stevens & Sons, London, 1987, p 66; H Edwards,
'Alternative Dispute Resolution: Panacea or Anathema?' (1986) 99 (3) Harvard L Rev 668 at 671; The Hon G Brennan, 'The State of the
Judicature' (1998) 72 ALJ 33 at 35.
10 J A Jolowicz, On Civil Procedure, Cambridge University Press, Cambridge, 2000, pp 71, 79, 181, 387.
11 O Fiss, 'Against Settlement' (1984) 93 Yale LJ 1073 at 1085.
12 J Resnick, 'For Owen M Fiss: Some Reflections on the Triumph and the Death of Adjudication' (2003) 58 Uni of Miami L Rev 173
at 180-1; Lord Phillips of Worth Matravers, Lord Chief Justice of England and Wales, Alternative Dispute Resolution: an English
Viewpoint, India, 29 March 2008, p 3; The Hon Marilyn Warren AC, 'Courts and our democracy -- Just another government agency?' Univ
of Melbourne -- Public Forum, 1 May 2012, p 6.
13 J Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law, UBC Press, Vancouver, 2008, p 54.
14 H Edwards, above n 9, 671; The Hon M Kirby, 'Mediation: Current Controversies and Future Directions' (August 1992) ADRJ 139
at 146: 'Basic civil liberties have been won and secured by people who sometimes stand up for their rights and assert them.'.
15 Sander and Goldberg, above n 7, at 53.
16 For example, the factors considered by the Australian Competition and Consumer Commission (ACCC) in determining whether to
initiate litigation includes whether the underlying conduct is of 'significant public interest or concern', demonstrates a 'blatant disregard of
the law', or involves matters of national or international significance: see ACCC, Compliance and Enforcement Policy, February 2013.
Similarly, the High Court has identified the Australian Securities and Investments Commission's (ASIC) aim in seeking remedies for breach
of directors' duties as being in furtherance of a public purpose: see ASIC v Hellicar (2012) 286 ALR 501; 88 ACSR 246; [2012] HCA 17;
BC201202609 at [155].
17 J Sax, Defending the Environment: A Handbook for Citizen Action, Vintage Books, New York, 1971; The Hon B Preston, 'The Role of
Public Interest Environmental Litigation' (2006) 23 Environmental and Planning LJ 337.
18 Edwards, above n 9, at 671; A Hood, 'Commercial Contracts, Lawyers and Alternative Dispute Resolution: A Proactive Habit' (May
1998) ADRJ 129 at 130.
19 Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; 238 ALR 457; [2006] FCAFC 192; BC200610833 at
[200]; Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd (2011) 80 NSWLR 398; 279 ALR 759; [2011] NSWSC 195; BC201102144
at [38]. See also Sir M Mustill and S Boyd, Law and Practice of Commercial Arbitration in England, 2nd ed, Butterworths, London, 1989,
pp 149-50.
20 Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; 238 ALR 457; [2006] FCAFC 192; BC20061083 at
Page 11
[200]. These limitations on arbitration can be found in the legislation governing domestic arbitration. For example, the grounds for setting
aside an award and the grounds for refusing recognition or enforcement of an award include that the subject-matter of the dispute is not
capable of settlement by arbitration under the law of the state, or the award is in conflict with the public policy of the state: Commercial
Arbitration Act 2010 (NSW) ss 34(2)(b) and 36(1)(b).
21 Competition and Consumer Act 2010 (Cth) s 76; Corporations Act 2001 (Cth) s 1317G, Australian Securities and Investments
Commission Act 2001 (Cth) s 12GBA; Federal Court of Australia Act 1976 (Cth) s 33V.
22 ACCC v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; (2002) ATPR 41-872; [2002] FCA 559; BC200202127
at [13].
23 ACCC v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; (1999) ATPR 41-673; [1999] FCA 18; BC9900036 at [18];
ACCC v Ticketek Pty Ltd [2011] FCA 1489; BC201109859 at [36].
24 ASIC v Chemeq Ltd (2006) 234 ALR 511; 58 ACSR 169; [2006] FCA 936; BC200605606 at [100]-[102].
25 ACCC v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; 142 ALR 177; 22 ACSR 539; BC9606509; Federal Court of
Australia, Practice Note CM17 -- Representative proceedings commenced under Pt IVA of the Federal Court of Australia Act 1976 (Cth),
1 August 2011, at [11.1].
26 Lopez v Star World Enterprises Pty Ltd (1999) ATPR 41-678; [1999] FCA 104; BC9900314 at [15].
27 M Legg, 'Public and Private Enforcement' in M Legg (Ed), Regulation, Litigation and Enforcement, Thomson Reuters, Pyrmont, 2011,
pp 153, 161.
28 D Luban, 'Settlements and the Erosion of the Public Realm' (1995) 83 Georgetown LJ 2619 at 2622-3, 2626 (equating litigation with a
public good because although the original litigants 'purchase' the rules or decision, future litigants use the rules or decision without paying).
29 Fiss, above n 11, at 1085. See also ALRC, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, 2000,
at [1.105].
30 The extent to which law plays a role in non-adjudicative processes varies. See S Subrin, 'A Traditionalist Looks at Mediation: It's Here to
Stay and Much Better Than I Thought' (2002/2003) 3 Nevada LJ 196 at 220; Menkel-Meadow, above n 7, at 2675-7.
31 M Galanter and M Cahill, '"Most Cases Settle": Judicial Promotion and Regulation of Settlements' (1994) 46 Stanford LRev 1339 at 1364,
1384-7.
32 See R Fisher, W Ury and B Patton, Getting to Yes, 2nd ed, Penguin, New York, 1991, pp 81-94.
33 Menkel-Meadow, above n 7, at 2669-70 and R Baruch Bush, 'Mediation and Adjudication, Dispute Resolution and Ideology: An
Imaginary Conversation' (1989-1990) 3 Jnl of Contemporary Legal Issues 1 at 8, 11.
34 Macfarlane, above n 13, at 50.
35 See, eg, Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth); Racial Discrimination Act 1975 (Cth); Sex
Discrimination Act 1984 (Cth).
36 For example, discrimination complaints in Australia are often handled through more informal dispute resolution mechanisms such as
investigation and conciliation. Chapman states that it is typically only in the 5% of cases where conciliation is considered inappropriate, or is
unsuccessful, that complaints will be considered before a tribunal: A Chapman, 'Discrimination Complaint-Handling in NSW: The Paradox
of Informal Dispute Resolution' (2000) 22 SydLRev 321 at 321-2.
37 See, eg, H Astor and C Chinkin, Dispute Resolution in Australia, 2nd ed, LexisNexis, Sydney, 2002, pp 20, 46-7; C Williams, 'The
Search for Bases of Decision in Commercial Law: Llewellyn Redux' (1984) 97(6) Harvard L Rev 1495 at 1507-8.
38 N Alexander and J Howieson, Negotiation -- Strategy, Style, Skills, 2nd ed, LexisNexis, Sydney, 2010, p 40.
39 Jolowicz, above n 10, p 21.
40 P Marshall, 'Would ADR Have Saved Romeo and Juliet?' (1998) 36 Osgoode Hall LJ 771 at 784. See also Aon Risk Services Australia
Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27; BC200906905 at [101].
Page 12
41 Donoghue v Stevenson [1932] AC 562; [1932] All ER Rep 1; (1932) 147 LT 281; [1932] SC (HL) 31 (the defendant sued in forma
pauperis) and Salomon v Salomon & Co [1897] AC 22 at 47; [1895-9] All ER Rep 33; (1896) 75 LT 426; (1897) 13 TLR 46; (Lord
MacNaghten commented 'I cannot help thinking that the appellant Aron Salomon has been dealt with somewhat hardly in this case. Mr
Salomon, who is now suing as a pauper, was a wealthy man in July 1892.').
42 International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; 261 ALR 220; [2009] HCA 49; BC200910134
at [54]. See also Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9; BC9901019 at [56]; Nicholas v R
(1998) 193 CLR 173; 151 ALR 312; 72 ALJR 456; BC9800075 at [74].
43 D Hensler, 'Suppose It's Not True: Challenging Mediation Ideology' (2002) 1 Jnl of Dispute Resolution 81 at 95.
44 Ibid, at 85-95; E A Lind and T Tyler, The Social Psychology of Procedural Justice, Plenum Press, New York, 1988, pp 62-5, 207-11. See
also J Thibault and L Walker, Procedural justice: A psychological analysis, Erlbaum, New York, 1975.
45 J Resnik, 'Bring Back Bentham: "Open Courts", "Terror Trials" and Public Sphere(s)' (2011) 5 Law & Ethics of Human Rights 1 at 62.
46 See T Grillo, 'The Mediation Alternative: Process Dangers for Women' (1991) 100 Yale LJ 1545; P Bryan, 'Killing Us Softly: Divorce
Mediation and the Politics of Power' (1992) 40 Buffalo L Rev 441; L Boulle, Mediation: Principles, Process, Practice, 3rd ed, LexisNexis,
Chatswood, 2011, pp 197-201.
47 See E Yamamoto, 'Efficiency's Threat to the Value of Accessible Courts for Minorities' (1990) 25 Harvard Civil Rights-Civil Liberties L
Rev 341; L Behrendt and L Kelly, Resolving Indigenous Disputes, Federation Press, Leichhardt, 2008, p 66. See also A Chalk, 'Redefining
the Role of the Federal Court in Settling Native Title Matters', Paper presented at the Third Annual Negotiating Native Title Forum,
Melbourne, 19 February 2009 (observing that principle-based mediation which requires parties to put aside their rights and focus on their
interests is problematic in native title disputes which are fundamentally about land rights).
48 Astor and Chinkin, above n 37, pp 28-9, 41-2.
49 M Legg, Case Management and Complex Civil Litigation, Federation Press, Leichhardt, 2011, pp 256-9.
50 R Hollander-Blumhoff and T Tyler, 'Procedural Justice and the Rule of Law: Fostering Legitimacy in Alternative Dispute Resolution'
(2011) 1 Jnl of Dispute Resolution 1 at 13.
51 In relation to arbitration see, eg, Commercial Arbitration Act 2010 (NSW) s 18 and D Jones, Commercial Arbitration in Australia, 2nd
ed, Thomson Reuters, Pyrmont, 2013, pp 241-53.
52 Subrin, above n 30, at 222.
53 See, eg, Commercial Arbitration Act 2010 (NSW) s 31(3).
54 Open justice means that court proceedings are subject to public and professional scrutiny. See Hogan v Hinch (2011) 243 CLR 506; 275
ALR 408; [2011] HCA 4; BC201101056 at [20].
55 See, eg, Civil Procedure Act 2005 (NSW) s 61(3); Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986)
161 CLR 98 at 106; 66 ALR 577; 60 ALJR 608; BC8601455.
56 See, generally, M J Tilbury, Civil Remedies -- Volume 1: Principles of Civil Remedies, Butterworths, 1990, Ch 7.
57 Federal Court Rules 2011 (Cth) r 7.01; Courts Procedure Rules 2006 (ACT) r 706; Uniform Civil Procedure Rules 2005 (NSW) r 25.2;
Supreme Court Rules 1987 (NT) r 4.08; Uniform Civil Procedure Rules 1999 (Qld) r 258; Supreme Court (General Civil Procedure) Rules
2005 (Vic) r 4.08; Rules of the Supreme Court 1971 (WA) O 52 r 1.
58 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1; [2001] HCA 63; BC200107043 at [10];
Evans & Associates v European Bank Ltd (2009) 255 ALR 171; [2009] NSWCA 67; BC200902235 at [28]. The courts also provide for quia
timet injunctions which restrain threatened or apprehended conduct that if engaged in will breach a right of the plaintiff.
59 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1; [2001] HCA 63; BC200107043 at [9];
R Meagher, D Heydon and M Leeming, Meagher, Gummow & Lehane's Equity Doctrines & Remedies, 4th ed, LexisNexis, [Q: location?],
2002, pp 703-4, 774-5; E Finnane, H Nicholas Newton and C Wood, Equity Practice and Precedents, Thomson, Rozelle, 2008, p 43.
60 Federal Court Rules 2011 (Cth) r 7.32(2); Courts Procedure Rules 2006 (ACT) r 741(3); Uniform Civil Procedure Rules 2005 (NSW)
r 25.11(2); Supreme Court Rules 1987 (NT) r 37A.02(2); Uniform Civil Procedure Rules 1999 (Qld) r 260A(2); Supreme Court Civil Rules
Page 13
2006 (SA) r 247(2)(b); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 37A.02(2); Supreme Court Rules 2000 (Tas) r 937B(2);
Rules of the Supreme Court 1971 (WA) O 52A r 2(2).
61 Federal Court Rules 2011 (Cth) r 7.32(1); Courts Procedure Rules 2006 (ACT) r 741(1); Uniform Civil Procedure Rules 2005 (NSW)
r 25.11(1); Supreme Court Rules 1987 (NT) r 37A.02(1); Uniform Civil Procedure Rules 1999 (Qld) r 260A(1); Supreme Court Civil Rules
2006 (SA) r 247(2)(a); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 37A.02(1); Supreme Court Rules 2000 (Tas) r 937B(1);
Rules of the Supreme Court 1971 (WA) O 52A r 2(1).
62 Federal Court Rules 2011 (Cth) r 7.35; Courts Procedure Rules 2006 (ACT) r 743; Uniform Civil Procedure Rules 2005 (NSW)
r 25.14(1); Supreme Court Rules 1987 (NT) r 37A.05; Uniform Civil Procedure Rules 1999 (Qld) r 260D; Supreme Court Civil Rules 2006
(SA) r 247(5); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 37A.05; Supreme Court Rules 2000 (Tas) r 937E; Rules of the
Supreme Court 1971 (WA) O 52A r 5.
63 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; 162 ALR 294; [1999] HCA 18; BC9902073.
64 Federal Court Rules 2011 (Cth) r 7.42; Courts Procedure Rules 2006 (ACT) r 751; Uniform Civil Procedure Rules 2005 (NSW) r 24.19;
Supreme Court Rules 1987 (NT) r 37B.02; Uniform Civil Procedure Rules 1999 (Qld) r 261A; Supreme Court Civil Rules 2006 (SA)
r 148(2); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 37B.02; Supreme Court Rules 2000 (Tas) r 937J; Rules of the
Supreme Court 1971 (WA) O 52B r 2.
65 Federal Court Rules 2011 (Cth) r 7.43; Courts Procedure Rules 2006 (ACT) r 752; Uniform Civil Procedure Rules 2005 (NSW) r 25.20;
Supreme Court Rules 1987 (NT) r 37B.03; Uniform Civil Procedure Rules 1999 (Qld) r 261B; Supreme Court Civil Rules 2006 (SA)
r 148(3); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 37B.03; Supreme Court Rules 2000 (Tas) r 937K; Rules of the
Supreme Court 1971 (WA) O 52B r 3.
66 Federal Court Rules 2011 (Cth) r 7.46; Courts Procedure Rules 2006 (ACT) r 754; Uniform Civil Procedure Rules 2005 (NSW) r 25.23;
Supreme Court Rules 1987 (NT) r 37B.06; Uniform Civil Procedure Rules 1999 (Qld) r 261E; Supreme Court Civil Rules 2006 (SA)
r 148(6); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 37B.06; Supreme Court Rules 2000 (Tas) r 937N; Rules of the
Supreme Court 1971 (WA) O 52B r 6.
67 The legislation applies the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration
1985 with the amendments adopted in 2006 (Model Law) -- for an overview of the impetus for and introduction of the legislation see Jones,
above n 51, pp 1-23.
68 Commercial Arbitration Act 2010 (NSW) ss 2 and 6(2).
69 Commercial Arbitration Act 2010 (NSW) s 17J(2).
70 Commercial Arbitration Act 2010 (NSW) s 1.
71 Jones, above n 51, p 59.
72 Ibid, p 229.
73 Commercial Arbitration Act 2010 (NSW) ss 17B and 17C.
74 A Kawharu, 'Interim measures in arbitration: commentary' [2008] NZLJ 89 at 92.
75 Jones, above n 51, p 229.
76 Federal Court Rules 2011 (Cth) rr 7.22 and 7.23; Courts Procedure Rules 2006 (ACT) rr 650 and 651; Uniform Civil Procedure Rules
2005 (NSW) rr 5.2 and 5.3; Supreme Court Rules 1987 (NT) rr 32.03 and 32.05; Supreme Court Civil Rules 2006 (SA) r 32; Supreme Court
(General Civil Procedure) Rules 2005 (Vic) rr 32.03 and 32.05; Supreme Court Rules 2000 (Tas) rr 403C and 403E; Rules of the Supreme
Court 1971 (WA) O 26A rr 3 and 4.
77 Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 308; [1982] 1 All ER 532; [1982] 2 WLR 338.
78 Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 321; BC9802072. See also Hodgson v Amcor Ltd (No 10) [2012] VSC 294;
BC201205199 at [60]; ALRC, Managing Discovery: Discovery of Documents in Federal Courts, Report 115, 2011, pp 48-49, 101:
'Discovery is an important part of the litigation process as it provides access to information required to resolve or determine the issues in
dispute.'
Page 14
79 See, eg, Federal Court Rules 2011 (Cth) r 20.14(2)(b); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 29.01.1(3)(b).
80 Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655; [2000] HCA 48; BC200005268 at [15]; Zhu v Yingle Culture Exchange
(Australia) Pty Ltd (in liq) [2010] NSWSC 107; BC201000930 at [11].
81 Lebon v Lake Placid Resort Pty Ltd [1995] 1 Qd R 24 at 28; Seven Network Ltd v News Ltd [2005] FCA 864; BC200504488 at [43].
82 Hodgson v Amcor Ltd (No 10) [2012] VSC 294; BC201205199 at [62], citing C Cameron and J Liberman, 'Destruction of Documents
Before Proceedings Commence -- What is a Court to Do?' (2003) 27 MULR 273 at 277-8.
83 Regent Holdings Pty Ltd v Victoria [2012] VSCA 221; BC201207244 at [15] (discovery ordered in class action to facilitate mediation);
Hodgson v Amcor Ltd (No 10) [2012] VSC 294; BC201205199 at [64]; Legg, above n 49, p 135.
84 Victorian Law Reform Commission, Civil Justice Review, Report No 14, 2008, p 434.
85 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264; BC201106918 at [101].
86 See, eg, Federal Court Rules 2011 (Cth) Pt 20, Dennis v Chambers Investment Planners Pty Ltd (2012) 201 FCR 321; [2012] FCA 63;
BC201200339 at [15] (the intention of the rules is to 'prevent unnecessary discovery'), Hodgson v Amcor Ltd (No 10) [2012] VSC 294;
BC201205199 at [67] and NSW Supreme Court, Practice Note No SC Eq 11 -- Disclosure in the Equity Division, 22 March 2012.
87 Civil Dispute Resolution Act 2011 (Cth) s 6(2)(a).
88 Civil Dispute Resolution Act 2011 (Cth) s 1(c).
89 Civil Dispute Resolution Act 2011 (Cth) ss 11 and 12. See also The Hon P A Bergin, 'The Objectives, Scope and Focus of Mediation
Legislation in Australia', 'Mediate First' Conference, Hong Kong International Arbitration Centre and The Hong Kong Mediation Council,
11 May 2012, at [11].
90 Commercial Arbitration Act 2010 (NSW) s 19.
91 Commercial Arbitration Act 2010 (NSW) s 27A.
92 National Alternative Dispute Resolution Council, 'Submission in response to the Australian Law Reform Commission Discussion Paper
72 Review of Australian Privacy Law', January 2008.
93 B Cairns, Australian Civil Procedure, 9th ed, Thomson Reuters, Pyrmont, 2011, pp 731-5.
94 Bankruptcy Act 1966 (Cth) ss 40(1)(g), 41 and 43.
95 Corporations Act 2001 (Cth) ss 459A and 459Q.
96 Federal Court Rules 2011 (Cth) r 5.23; Courts Procedure Rules 2006 (ACT) Pt 2.11, Div 2.11.3; Uniform Civil Procedure Rules 2005
(NSW) Pt 16; Supreme Court Rules 1987 (NT) rr 21.01-21.04; Uniform Civil Procedure Rules 1999 (Qld) Ch 9, Pt 1, Div 2; Supreme Court
Civil Rules 2006 (SA) Ch 11, Pt 3; Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 21; Supreme Court Rules 2000 (Tas)
Pt 11, Div 2; Rules of the Supreme Court 1971 (WA) O 13.
97 D Boniface, M Kumar and M Legg, Principles of Civil Procedure in New South Wales, 2nd ed, Thomson Reuters, Pyrmont, 2012, p 848.
98 Federal Court Rules 2011 (Cth) r 39.05; Courts Procedure Rules 2006 (ACT) r 1128; Uniform Civil Procedure Rules 2005 (NSW)
r 36.16; Supreme Court Rules 1987 (NT) r 21.07; Uniform Civil Procedure Rules 1999 (Qld) r 290; Supreme Court Civil Rules 2006 (SA)
r 230; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 21.07; Supreme Court Rules 2000 (Tas) r 355; Rules of the Supreme
Court 1971 (WA) r 13. See also Cairns, above n 93, pp 473-5. It is not uncommon for an application to set aside a default judgment to be
brought once the plaintiff has sought to enforce the default judgment by, for example, commencing bankruptcy proceedings against the
defendant. If the defendant is successful in having the default judgment set aside, the plaintiff is effectively at square one, but having borne
the costs of obtaining the default judgment in the first place, commencing enforcement proceedings and then having the default judgment set
aside.
99 Commercial Arbitration Act 2010 (NSW) s 25(1)(b).
100 C Hodges, S Vogenauer and M Tulibacka (Eds), The Costs and Funding of Civil Litigation, Hart Publishing, Oxford, 2010, p 4.
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101 H Genn, The Hamlyn Lectures 2008 -- Judging Civil Justice, Cambridge University Press, Cambridge, 2010, p 15. See also French,
above n 8.
102 See Federal Court of Australia Act 1976 (Cth) s 37M; Court Procedure Rules 2006 (ACT) Ch 2 Pt 2.1 r 21; Civil Procedure Act 2005
(NSW) s 56; General Rules of Procedure in Civil Proceedings 1987 (NT) Pt 3 r 1.10; Uniform Civil Procedure Rules 1999 (Qld) r 5;
Supreme Court Civil Rules 2006 (SA) r 3; Civil Procedure Act 2010 (Vic) s 7; Rules of the Supreme Court 1971 (WA) r 4B. The only
jurisdiction without an overriding/overarching purpose is Tasmania.
103 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27; BC200906905
at [98]. See also Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; BC200906750 at [36]:
The Civil Procedure Act, ss 56-61 brings about a new statutory balance among various factors in litigation including court
and party efficiency and the delivery of individual justice. Delay and case backlog are not merely factors affecting the
public cost of delivering justice, they corrode the ability of the courts to provide individual justice.
104 Second Reading Speech by the Attorney-General, Australia, House of Representatives, Parliamentary Debates, Hansard, 14 November
1991, p 3176; Femcare Ltd v Bright (2000) 100 FCR 331; 172 ALR 713; [2000] FCA 512; BC200001888 at [10]; Bright v Femcare Ltd
(2002) 195 ALR 574; [2002] FCAFC 243; BC200204689 at [152].
105 See, eg, Bright v Femcare Ltd (2002) 195 ALR 574; [2002] FCAFC 243; BC200204689 at [77], [136].
106 M Legg, 'Class Actions and ADR Compared' in Legg, above n 5, Ch 9.
107 See, eg, Vernon v Village Life Ltd [2009] FCA 516; BC200904647 at [16]; Hobbs Anderson Investments Pty Ltd v Oz Minerals Ltd
[2011] FCA 801; BC201105168 at [14]; Clime Capital Ltd v Credit Corp Group Ltd (No 3) [2012] FCA 218; BC201201223 at [8].
108 Federal Court of Australia, Annual Report 2008-2009, p 12 and The Hon M Black, 'The Role of the Judge in Attacking Endemic Delays:
Some Lessons from Fast Track' (2009) 19 Jnl of Judicial Administration 88 at 92.
109 Federal Court of Australia, Fast Track -- Practice Note CM8, 1 August 2011 and Legg, above n 49, Ch 8.
110 Ibid.
111 Ibid.
112 Concerns have been raised about the cost of using ADR. See, eg, N Ulmer, 'The Cost Conundrum' (2010) 26(2) Arbitration
International 221; D Jones, 'Techniques in managing the process of arbitration' (2012) 78(2) Arbitration 140 (discussing the perception of
rising costs in arbitration and steps to combat cost); Lord Dyson, 'A word on Halsey v Milton Keynes' (2011) 77(3) Arbitration 337 at 338
(observing that mediation can be expensive and if it proves to be unsuccessful the total costs of the dispute will be increased).
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