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Lindgren, Justice Kevin --- "Harmonisation of Rules of Court in Australia" (FCA) [2004] FedJSchol 12

22nd AIJA Annual Conference

‘Proportionality – cost-effective justice?’

17 to 19 September 2004
Westin Hotel, Sydney


Harmonisation of Rules of Court in Australia


1. History

1.1 Justice Lockhart of the Federal Court of Australia and Justice McLelland of the Supreme Court of New South Wales produced harmonised rules of court and forms relating to the winding up of companies.

1.2 The Council of Chief Justices appointed a committee of judges, one from the Federal Court and one from each Supreme Court, to explore the possibility of producing harmonised rules of court governing proceedings under the Corporations Law generally.

Law

1.3 Over the period from 1996 to 1999, that Committee produced such rules. They are found in sets of rules bearing the following titles:

Federal Court
of Australia
New South Wales
Victoria
Supreme Court (Corporations) Rules 2003
(constituting Chapter V of the Rules of the Supreme Court)
Queensland
Corporations Law Rules (constituting Chapter 23 and Schedules 1A and 1B of the Uniform Civil Procedure Rules 1999)
Western Australia
Supreme Court (Corporations) (WA) Rules
South Australia
Corporations Rules 2003
Tasmania
Rules of the Supreme Court (Corporations Law) 2000
Australian Capital
Territory
Supreme Court (Corporations) Rules 2003

Northern Territory
Corporations Law Rules

1.4 On 20 May 2000 a Conference on the harmonisation of rules of court generally was held at the Federal Court in Sydney. Those attending:

1.5 In October 2000, the Council of Chief Justices decided that, in the first instance, harmonisation of the rules relating to subpoenas, discovery and service outside the jurisdiction be explored. The Council appointed a committee of judges to work on, first, the rules and forms relating to subpoenas.

1.6 While all State Supreme Courts participated in the corporations rules exercise, the Supreme Court of Queensland did not, for local reasons, participate in the subpoena rules exercise, although a judge of that Court continued to participate as a member of the Committee.

1.7 Over a period from February 2001 to September 2003 that committee produced a set of harmonised subpoena rules (a judge of the Family Court of Australia was also a member of this Committee). The various courts have been making the harmonised subpoena rules at various times, as local exigencies have permitted, with various commencement dates in this year (2004).

1.8 In both cases (corporations and subpoenas), the Council of Chief Justices has appointed a ‘monitoring committee’ to monitor the operation of the harmonised rules, and, it is hoped, to generate any amendments to them on a harmonised basis.

1.9 The first meeting of the Committee appointed to investigate the question of the harmonisation of the rules relating to Discovery was held on 5 August 2004.

1.10 All of the Committees referred to were, and are, supported by Mr Philip Kellow, Deputy Registrar of the Federal Court of Australia; Professor Greg Reinhardt of the AIJA; and Ms Claire Parkhill of the Commonwealth Office of Legislative Drafting.

2. Some matters of current interest to be discussed at the conference

2.1 The current project: harmonisation of the rules relating to discovery.

2.2 A possible project to harmonise court rules and practice relating to Mareva orders (‘freezing orders’ or ‘asset preservation orders’) and Anton Piller orders (‘disclosure orders’).

3. Advantages and disadvantages of harmonisation, to be elaborated
upon at the conference
Advantages

3.1 Production of a ‘model’ set of rules based on the pooled experience of all Australian jurisdictions.

3.2 Common language ensures that the same text will fall to be construed in all participating courts, with the consequence of a larger corpus of interpretative decisions.

3.3 Greater certainty and predictability as a result of 3.2.

3.4 It does little to enhance the administration of justice that the same issue is addressed differently in the rules of the various courts, where the difference cannot be supported by reference to local considerations.

3.5 Harmonisation of rules militates against forum shopping based on rule differences.

3.6 Interjurisdictional practice and a ‘national profession’.

3.7 Training programs within ‘national’ firms.

Disadvantages

3.8 Slowing of pace of change because of the strong desirability of a court’s taking up amendments proposed by it through the relevant harmonised rules monitoring committee, rather than unilaterally amending the harmonised rules it has adopted.

3.9 Perceived interference with local autonomy.

3.10 Discouragement of ‘trials’ of diverse solutions resulting in the emergence of ‘the best’ one; instead, a tendency to compromise and to adopt the ‘lowest common denominator’ factor.


K E Lindgren


17 September 2004



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