12Facilitating Ongoing Civil Justice Review and Reform

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Chapter 12 Facilitating Ongoing Civil Justice Review and Reform A council of the judges or magistrates of each Victorian court must meet at least once in each year to consider the operation of the legislation and rules, and to enquire into and examine any defects that appear to exist in the system of procedure or administration of the law in the court. 8 Each court delegates its rule-making power to a rules committee, which then makes recommendations to the judges or magistrates for any rule change. 9 The legislation does not prescribe who the members of the rules committees should be, or how their deliberations should be conducted. The courts’ rules committees generally comprise judicial members, masters and registrars, representatives nominated by the Victorian Bar Council and the Law Institute of Victoria and an officer from the Office of the Chief Parliamentary Counsel. 10 During 2005–6 the Magistrates’ Court Rules Committee’s primary focus was the alignment, where possible, of the court’s civil rules with those of the County and Supreme Courts. 11 The Supreme Court reported in relation to its Rules Committee: In addition to acting in response to new legislation, the Committee receives suggestions for new rules or amendments from within the Court, from the profession and others. The Court also participates, through the Council of Chief Justices, in the National Harmonisation of Rules Committee which provides a forum for the development of uniform or harmonised rules on common issues across superior courts. The Rule making power of the Court is an important aspect of the Court’s power to control its own procedure. The composition of the Rules Committee allows matters to be raised by those dealing with the Rules on a day to day basis. It allows expert consideration of any proposed change and an efficient procedure for amendment without recourse to parliamentary or departmental processes. 12 The Subordinate Legislation Act 1994 governs the status of rules made by the courts. Rules made by the courts are subject to disallowance by the Parliament. 13 A proposed rule that is to be made by, or with the consent or approval of, the Governor in Council must be submitted to the Chief Parliamentary Counsel for the issue of a certificate that the rule is within power and appears otherwise appropriate. 14 The rule must be published in the Government Gazette as soon as practicable after it is made, and within six days must be laid before each House of Parliament. 15 The Scrutiny Committee may report to Parliament if it appears that any statutory rule laid before Parliament does not appear to be within the powers conferred by the authorising Act, contains principles which should properly be dealt with by an Act and not subordinate legislation, unduly trespasses on rights and liberties of the person previously established by law, etc. The Scrutiny Committee may recommend that a rule should be disallowed or amended. 16 The Minister may make guidelines for the preparation, content, publication and availability of statutory rules, and the procedures to be implemented and the steps to be undertaken for the purpose of ensuring consultation, coordination and uniformity in the preparation of statutory rules. 17 The courts are also empowered to make rules under section 50 of the Interpretation of Legislation Act 1984, which provides: Where an Act or subordinate instrument confers any jurisdiction on a court or other tribunal or extends or varies the jurisdiction of a court or other tribunal, the authority having for the time being power to make rules or orders regulating the practice and procedure of that court or tribunal may, unless the contrary intention appears, make such rules or orders (including rules or orders with respect to costs) as appear to the authority to be necessary for regulating the practice and procedure of that court or tribunal in the exercise of the jurisdiction so conferred, extended or varied. In addition to express statutory powers, courts have an inherent or implied power to regulate their own procedure. The judges of superior courts and most other courts of record have the power to make rules of court regulating the procedure of the court to ensure the parties use the process of the court fairly and conveniently. 18 The inherent power of the court is rarely used because courts are given wide statutory rule-making power. As members of the High Court have noted, ‘power’ and ‘jurisdiction’ are not discrete concepts and the distinction between them is often blurred. 19 698 Victorian Law Reform Commission - Civil Justice Review: Report
In Harris v Caladine Justice Toohey noted that: Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and ‘such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred’ 20 Challenges to the rule-making power In Ousley v R the High Court had occasion to consider the general principles of the rule-making power in the context of a challenge to a Victorian rule prescribing the form of warrants. 21 Justice McHugh summarised the principles as follows: 22 A rule made under rule-making powers is invalid if it is ’altogether outside the province’ 23 of the court as a rule-making authority or is ’patently or absurdly irrelevant’ 24 to the rulemaking power. In less extreme cases, a rule will be invalid where it is not ‘capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose’. 25 In Williams v Melbourne Corp, 26 Dixon J expressed the test for invalidity as being whether the rule goes ’beyond any restraint which could be reasonably adopted‘ for the prescribed purpose. Section 25(1)(f)(i) of the Supreme Court Act and s 50 of the Interpretation Act enable bodies such as the Supreme Court of Victoria to ensure their efficient operation by providing means for the regulation of ’practice and procedure‘, a term which has been expressed to denote: 27 the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the court is to administer the machinery as distinguished from its product. In Cleland v Boynes, 28 the Full Court of the Supreme Court of South Australia approved the following description of ’practice and procedure‘ given by Falconbridge in his work, Conflict of Laws: 29 Broadly speaking, it is customary in the conflict of laws to characterise as procedural such matters as forms of action, parties to an action, venue, rules of practice and pleading, proof of facts, admissibility of evidence, rebuttable presumptions and burdens of proof; and it has been suggested that the line between substance and procedure should be drawn on the basis of the general distinction between procedural rules which concern methods of presenting to a court the operative facts upon which legal relations depend, and substantive rules which concern the legal effect of those facts after they have been established. The members of the High Court who considered the scope of the rule-making power found that section 25(1)(f) only authorises the court to make rules for judicial acts. As the issue of a warrant is an administrative act, section 25(1)(f) could not support the rule prescribing the form of the warrant. However, section 50 of the Interpretation of Legislation of Act ‘encompasses administrative as well as judicial functions’ and is ‘sufficient authority’ for the court to prescribe the form of the warrant. 30 The scope of the Supreme Court’s rule-making power was further considered following the adoption of new class action procedures by that court in 1999. 31 The Supreme Court introduced rules mirroring the Federal Court’s class action procedures contained in the Federal Court of Australia Act 1976 (Cth). These class action procedures allowed the court to assess damages in the aggregate. The relevant provision 32 was challenged in Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia (Ltd). A majority of the Court of Appeal held that the rules were valid and could have been made pursuant to section 25(1)(a) (which empowers the court to make rules with respect to any matter dealt with in any rules of court in force on 1 January 1987), or the more general provision, section 25(1)(f)(i). Justice Ormiston (with whom Justices Phillips and Charles agreed) characterised the rules in dispute as ‘rules of practice and procedure’, that is, ‘they prescribe the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right’. Justice Ormiston found that the new rules did not alter recognised existing legal principles, and further, any calculation of damages would not amount to a substantive alteration of the law. 8 Supreme Court Act 1986 s 28, County Court Act 1958 s 87, Magistrates Court Act 1989 s 15. 9 Supreme Court of Victoria, Annual Report 2004–05 (2006) 29; County Court of Victoria, Annual Report 2005–06 (2007) 20, Magistrates’ Court of Victoria, Annual Report 2005–2006 (2007)16–17. 10 See Supreme Court (2006) above n 9; Magistrates’ Court (2007) above n 9. 11 Magistrates’ Court (2007) above n 9; and submission CP 55 (Magistrates’ Court of Victoria). 12 Submission CP 58 (Supreme Court of Victoria). 13 Supreme Court Act 1986 s 27, Magistrates’ Court Act 1989 s 16(2). 14 Subordinate Legislation Act 1994 s 13. 15 Subordinate Legislation Act 1994 ss 17, 15. 16 Subordinate Legislation Act 1994 s 21. 17 Subordinate Legislation Act 1994 s 26. 18 Gittins v WHC Stacy and Son (1964) 82 WN Pt 1 (NSW) 157. 19 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 590 [64] (Gleeson CJ, Gaudron and Gummow JJ); Harris v Caladine (1991) 172 CLR 84, 136 (Toohey J). See also Batistatos v Roads and Traffic Authority of New South Wales (2006) 227 ALR 425 [5} (Gleeson CJ, Gummow, Hayne and Crennan JJ). In that case the court noted that the phrase ‘inherent jurisdiction’ is a slippery one [5]. The case concerned abuse of process and the ‘inherent jurisdiction’ of superior courts to stay proceedings. 20 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 590 [64] (Gleeson CJ, Gaudron and Gummow JJ) quoting Parsons v Martin (1984) 5 FCR 235, 241. 21 Ousley v R (1997) 148 ALR 510. 22 Ousley v R (1997) 148 ALR 510, 542–3. 23 Lynch v Brisbane City Council (1961) 104 CLR 353, 365. 24 Foster v Aloni [1951] VLR 481, 484. See also State Bank (SA) v Hellaby (1992) 59 SASR 304, 309. 25 South Australia v Tanner (1989) 166 CLR 161, 165. 26 (1933) 49 CLR 142, 156. 27 Poyser v Minors (1881) 7 QBD 329, 333 (Lush LJ). See also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176–7; Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, 75. 28 (1978) 19 SASR 464. 29 (1978) 19 SASR 464, 470. 30 Ousley v R (1997) 192 CLR 69, 518 (Toohey J), and 549 (Gummow J). 31 Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia (Ltd) (2000) 1 VR 545. 32 O 18A. The provision allowing the court to award damages in an aggregate amount was based on s 33Z of the Federal Court Act 1976. This is now dealt with by s 33Z Supreme Court Act 1986. See Peter Cashman, Class Action Law and Practice (2007) 30–3. 699
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Page 3: 1. INTRODUCTION ‘Managing justice
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Page 35 and 36: 254 • providing a right to a jury
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Page 39 and 40: CONSULTATION PARTICIPANTS DATE 32 T
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Page 43 and 44: Appendix 2: Submissions Draft Expos
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Page 47 and 48: Glossary 1 Terminologyamicus curiae
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Mackie, Karl, Are Lawyers Falling s
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34 Conference in the Land and Envir
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Tucker, Philip, ‘Judges as Mediat
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