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meet our AUTHORS
AUSTRALIAN CIVIL PROCEDURE
Australian Civil Procedure is now in its ninth
edition and we recently spoke to author
Dr Bernard Cairns to find out more about the
latest developments covered in the book.
Dr Bernard Cairns is widely respected for his
mastery of the laws relating to procedure, and
is a leading, nationally recognised academic.
Practising law for some years, before becoming
a legal academic with special publishing and
research interests in civil litigation and the civil
justice system, he is the author of the recognised
standard reference book on the Australian civil
justice system, Australian Civil Procedure, now
in its ninth edition. He has contributed articles
to law journals in his area of interest and is the
joint editor of the practitioner’s reference service
Queensland Civil Practice.
Reader in Law at the TC Beirne School of Law,
University of Queensland, Associate Professor
Cairns was the principal consultant to the
Queensland Justice Department project that
resulted in the introduction of a uniform set
of rules for all Queensland civil courts. He has
taught civil procedure at undergraduate and
postgraduate level and is currently an Honorary
Fellow at the University of Tasmania.
Tell us a little about the development of
this new 9th edition, what were some of the
challenges you faced
The challenge is twofold.
First, the book covers the civil practice of all
Australian Supreme Courts and the Federal Court:
nine jurisdictions are involved. The fundamentals
of all jurisdictions are almost the same. Generally,
I discuss the civil justice system as a coherent
whole so that it is relevant to all jurisdictions.
General concepts and principles are emphasised
rather than mechanical details and procedures.
Coverage is national rather than jurisdictionspecific.
There are nevertheless significant
differences among the various jurisdictions. These
differences have to be covered, as well as the
common ground, without losing overall coherence.
Where it is necessary some topics are discussed in
relation to a specific State or group of States. For
example, litigation management schemes differ so
substantially among the different courts a separate
section
has to be devoted to each court. Some courts
have a common form or originating process so
that they can be treated as a group. Other courts
are discussed separately. Pleading rules are mostly
uniform, although Queensland differs in some
important respects. The common rules of pleading
can be treated as a whole in the same section.
In summary, I aim to keep overall coherence
in the book without overlooking significant
differences among the different courts.
Secondly, practitioners and students are the
intended audience. It is essential to cover the
field in enough detail to satisfy practitioners
without over-burdening students with excessive
detail. Identifying and emphasising fundamental
principles is useful for students and for
practitioners. Practitioners’ need for treatment
of specific courts is met where differences are
substantial and merit separate discussion. It is
however necessary to have regard to the bulk of
the book.
What have been some of the more significant
developments since the eight edition,
published now two years ago
Some of the more significant developments are:
• the High Court’s decision to include cost and
efficiency alongside justice as fundamental
objectives of the civil justice system. This has
implications for parties and lawyers in the
way civil litigation is conducted. It recognises
a change of emphasis in that the court must
pay attention to the civil litigation system as a
public resource which must be administered
efficiently from the point of view not only of the
parties but the public generally as taxpayers;
• amending pleadings and court processes in
light of the need for efficiency in the conduct
of litigation;
• enhance powers for the court to terminate
baseless litigation before substantial costs
are incurred;
• Constitutional limitations on the jurisdiction
that States can impose on State courts are that
they are also courts within the meaning of Ch III
of the Constitution.
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