27. October 2010 16:35
In a submission to the Senate Legal and Constitutional Affairs Committee, the Federal Court has flagged its serious concerns with the reforms proposed in the Civil Dispute Resolution Bill 2010.
Although the Committee's report is not due until 22 November 2010 (today is the closing date for submissions), submissions already received are publicly available.
In short, the court is concerned that the reforms as set out in the Bill :
- are neither necessary nor desirable;
- are not suitable for the nature of much of the court's work;
- will increase costs and delays without corresponding benefit;
- run the risk of creating satellite litigation - litigation about litigation; and
- employ terminology which may be in conflict with the case management principles implemented in the Access to Justice (Civil Litigation Reforms) Act 2009, and case management reforms introduced in state jurisdictions.
The submission also points out that the operation of the reforms in a personal or corporate insolvency context is unclear.
The submission proposes an alternative approach of enacting legislation requiring a party contemplating litigation to serve a short statement outlining the factual and legal basis of its claim upon a potential respondent. If that step were taken, the court could then be given jurisdiction over ADR of the matter and the parties would be able to access court-annexed mediation (which is generally cheaper than external mediation, and integrated with existing case management powers).