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Access to Justice (Civil Litigation Reforms) Amendment Bill 2009

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2008-2009

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

SENATE

 

 

 

 

ACCESS TO JUSTICE (CIVIL LITIGATION REFORMS)

AMENDMENT BILL 2009

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be moved on behalf of the Government

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)

 



ACCESS TO JUSTICE (CIVIL LITIGATION

REFORMS) AMENDMENT BILL 2009

 

 

GENERAL OUTLINE

 

The Bill amends the Federal Court of Australia Act 1976 to strengthen and clarify the case management powers of the Federal Court to ensure more efficient civil litigation.  It also streamlines the appeals pathways for civil proceedings, and clarifies the powers of judicial officers of the federal courts, particularly the heads of each federal court.

 

The Government amendments implement a recommendation from the recent report by the Senate Standing Committee on Legal and Constitutional Affairs on the Bill.  The Senate Report recommended that proposed paragraph 24(1AA)(c) be deleted from Schedule 2 of the Bill so that interlocutory decisions relating to security for the payment of costs by a Single Federal Court Judge can continue to be appealed to the Full Federal Court.

 

In addition the Government amendments will delete proposed paragraphs 33(4A)(c) and 33(4B)(d) from Schedule 2 of the Bill, consistent with the recommendation to delete proposed paragraph 24(1AA) (c), to ensure that an avenue of appeal to the High Court continues to exist for an interlocutory decision relating to security for costs, when made by the Full Court exercising original jurisdiction and a single Judge or Full Court in the appellate jurisdiction, respectively.

 

The Government amendments clarify that a Judge of the Federal Court of Australia, other than the Chief Justice, may hold a concurrent appointment as a Judge of one or more State Supreme Courts.

 

 

FINANCIAL IMPACT

 

There is no direct financial impact on Government revenue arising from these amendments. 



NOTES ON AMENDMENTS

 

Amendment 1

1.                   This amendment provides that Schedule 4 of the Bill commences 28 days after Royal Assent.  This is in accordance with Schedules 1 and 2 of the Bill.

Amendment 2

2.                   In response to concern expressed in submissions to the inquiry of the Senate Standing Committee on Legal and Constitutional Affairs, this amendment omits proposed paragraph 24(1AA)(c).  Proposed s ubsection 24(1AA) provides that there is no avenue of appeal to the Full Court from a number of specified interlocutory decisions of a single Judge exercising original jurisdiction.  Paragraph 24(1AA)(c) includes decisions about security for the payment of costs as a relevant interlocutory decision.

3.                   The Government acknowledges submissions made to the Committee that if decisions about security for the payment of costs were not subject to appeal, it could expose litigants to significant financial risk, regardless of the merits of their case.

4.                   This amendment does not otherwise affect the operation of proposed subsection 24(1AA).

Amendment 3

5.                   This amendment omits proposed paragraph 33(4A)(c).  Proposed subsection 33(4A) provides that there is no avenue of appeal to the High Court from a number of specified interlocutory decisions of a Full Court exercising original jurisdiction.  Paragraph 33(4A)(c) includes decisions about security for the payment of costs as a relevant interlocutory decision.

6.                   The Government acknowledges submissions made to the Committee that if decisions about security for the payment of costs were not subject to appeal, it could expose litigants to significant financial risk, regardless of the merits of their case.

7.                   This amendment does not otherwise affect the operation of proposed subsection 33(4A).

Amendment 4

8.                   This amendment omits proposed paragraph 33(4B)(d).  Proposed s ubsection 33(4B) provides that there is no avenue of appeal to the High Court from a number of specified interlocutory decisions in the appellate jurisdiction of the Federal Court.   Paragraph 33(4B)(d) includes decisions about security for the payment of costs as a relevant interlocutory decision.

9.                   The Government acknowledges submissions made to the Committee that if decisions about security for the payment of costs were not subject to appeal, it could expose litigants to significant financial risk, regardless of the merits of their case.

10.               This amendment does not otherwise affect the operation of proposed subsection 33(4B).

Amendment 5

11.               This amendment adds a further schedule to the Bill - Schedule 4 - Appointment of Federal Court Judges to State Supreme Courts.  The amendment inserts ‘the Supreme Court of a State’ within the definition of prescribed court contained in subsection 6(7) of the Federal Court of Australia Act 1976 .

12.               The amendment clarifies that a Judge of the Federal Court of Australia, other than the Chief Justice, may hold a concurrent appointment as a Judge of one or more State Supreme Courts.

13.               In March 2008, the Standing Committee of Attorneys-General first agreed to the development of an exchange program between judicial officers of interested jurisdictions.

14.               The Federal Court Act does not currently preclude appointments of Federal Court Judges to State courts.  The amendment will encourage existing arrangements for the temporary transfer of Federal Court Judges to State Supreme Courts.

15.               The transfer of Federal Court Judges to hear matters in superior State Courts will enhance the knowledge and experience of Federal Court Judges, benefit other jurisdictions with new ideas and improvements to their courts and result in a more consistent body of national decision-making in areas of common jurisdiction.

16.               The amendment does not provide the Commonwealth with unilateral power to appoint Federal Court Judges, temporarily or permanently, as Judges of State Supreme Courts.