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LSB April 2018_Web

CIVIL LITIGATION

CIVIL LITIGATION Litigation in the SA Fast Track Streams JORDAN TUTTON, ASSOCIATE TO THE HONOURABLE JUSTICE WHITE, FEDERAL COURT OF AUSTRALIA The Supreme and District Courts established the Fast Track streams of litigation in late 2014. 1 Recently published research finds that, for the most part, practitioners who have used the Fast Track believe that the process saved their clients substantial amounts of time and money, in comparison to litigation in the ordinary course. 2 One practitioner comments: the huge advantage is we issued proceedings and we were before the Court having an argument and getting a judgment within probably a two to three-month period. Now … if we were in the normal stream, that would not have occurred for 18 months. So, the signifi cance for our client was that he was due [between 100,000- 150,000] on work that he had done… That had been outstanding for six to eight months. He’s got cash fl ow needs and the prospects of spending another 18 months in the system to get your [100-150] grand compared with getting it in three months… It’s a no brainer when you think about it … It cured his cash fl ow problem. Justice Doyle has described “[t]he public concerns over the courts’ ability to determine commercial disputes in an efficient and proportionate manner” as “notorious”. 3 Writing in the Bulletin in 2013, Dr Joe McIntyre observed that one of Doyle CJ’s final interviews “and the first interview of … Kourakis [CJ] … had in common a central focus on the need to fundamentally reform civil litigation” due to the costs of litigation. 4 Fast Track seems to offer a solution to these concerns for some matters. HOW IS THE FAST TRACK DIFFERENT? The Fast Track was designed to result in “more expeditious and less expensive hearing and determination of simpler disputes.” 5 It is intended for “straight forward cases” 6 – such as those where there are no “complex and controversial interlocutory steps”. 7 A case is prima facie eligible if (a) “the combined quantum of the claim and of any counter claim does not exceed $250,000”; 8 and (b) it is expected that no more than three trial days are required. 9 (It should also be noted that the Fast Track lowers the threshold for recovering costs to $25,000, 10 compared to the District Court civil jurisdiction threshold of $60,000.) 11 As part of the research, I spoke with five practitioners involved in at least two Fast Track matters. Generally, the practitioners described two key differences in Fast Track litigation in comparison to ordinary litigation in the Supreme and District Courts. First, the practitioners described pre-trial hearings and trial dates as being fixed at a much earlier stage in litigation. For Fast Track matters, an Initial Hearing is fixed by the Registrar “usually… approximately one month after the pleadings have closed”. 12 At that hearing, the docketed judge will fix a pre-trial hearing date and trial week. 13 A practitioner commented upon the effect of that hearing: often enough, the issues are narrowed even further by [the] process. And so the overwhelming theme is that the trial focuses both the mind and the honesty of the parties and so anything that can get them to that point sooner rather than later is going to … bring the matter to an end, which everyone knows is the cheapest way to do it. Second, they tended to discuss how, in the Fast Track, judges are more actively involved in case management. The parties engage with a docketed judge 14 on issues that will permit effective case management. 15 The presiding officer may assist with “identif[ying] the real issues in dispute” 16 and making directions for “interlocutory steps and evidence”. 17 One practitioner described the effect of having a judge actively manage the case when the matter transferred into the Fast Track: If we had had the involvement of His Honour at an earlier stage in the matter … then it would have resolved. Ultimately, we settled on … better terms than we had been prepared to settle [on] throughout the conduct of the matter. But-for the belligerence of the defendants [it would have settled]. These differences were said to have increased the parties’ focus on important and critical issues earlier in the litigation; and increase pressure to settle at an earlier stage. WERE THE FAST TRACK CASES RESOLVED MORE QUICKLY AND CHEAPLY? Four of the five practitioners interviewed believed that their Fast Track matters were resolved more quickly and inexpensively than they would have expected in the ordinary course. 18 Those practitioners would all use the Fast Track again for a suitable case. There were several instances where interviewees strongly believed that the Fast Track had saved their client substantial amounts of time and money. These benefits were described as particularly acute in cases where there was believed to be a weak, or no available, defence. Another practitioner remarked: the whole system there is designed to get the matter to trial as quickly as possible because otherwise you get bogged down for 12 months [to] three years in circumstances where there really is no genuine defence, it’s just that they can’t pay; [the defendant is] trying to delay the time of payment. One practitioner believed that his/her cases were resolved with no difference in timeliness or cost. That practitioner was critical of judicial case management and noted that it did not positively affect how he/she conducted litigation. Rather, the interviewee believed that demonstrating compliance added to the overall cost to be charged to a client. For this practitioner, the Fast Track had the extra burden of requiring him/ her to learn a set of rules which existed additional to a multitude of other court/ tribunal rules which touched on his/her practice. FUTURE USE OF FAST TRACK There has been limited use of Fast Track by the profession. On the available District Court data, there were only 23 Fast Track cases in the first 18 months of its operation. The research suggests that not all litigators may be aware of the stream, and those who are aware may not know much about Fast Track practice, or whether it actually can deliver faster and cheaper dispute resolution. A practitioner (quoted above) commented: 12 THE BULLETIN April 2018

CIVIL LITIGATION Practitioner: [N]o one ever says to me you know, “I’ve got your summons… I’ll be fi ling a defence… should we consider fl ipping this one into Fast Track?” It’s never raised in any of the proceedings that I issue in the Supreme or District Court. No one ever brings it up. I don’t raise it with plaintiffs… none of my clients have received summons which have been issued in that Stream. I just don’t think it’s on the radar. Interviewer: Yep. Do you think if it was on their radar, more people would be likely to use it? Practitioner: Anything that can get through.… I think if there were more – if it was more widely known or the benefi ts were known or practitioners had the experience of it, then I think they would be willing to use it more. For practitioners and parties in these straightforward disputes, the research findings are, as a whole, encouraging. In the cases studied, the Fast Track generally was perceived to have produced a substantially faster and cheaper result for parties to the disputes. B Endnotes 1 See Fast Track Rules 2014 (SA); Fast Track Supplementary Rules 2014 (SA). 2 Jordan Tutton, ‘Litigation in the South Australian Fast Track Streams’ (2017) 6(3) Journal of Civil Litigation and Practice. That paper includes detailed research findings and information on the research method. 3 PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307 [79]. 4 Joe McIntyre, ‘A Framework for Civil Justice Reform Part I: Theory’ (2013) 35(7) Law Society of SA Bulletin 26, 26. 5 Courts Administration Authority of South Australia, Fast Track Stream . 6 Fast Track Rules 2014 (SA) r 3(b). 7 Fast Track Supplementary Rules 2014 (SA) r 8(1)(d); see also r 8(1)(e). 8 Fast Track Rules 2014 (SA) r 10(2)(a). See r 11. 9 Fast Track Rules 2014 (SA) r 10(2)(b). These criteria do not prevent proceedings from being transferred into the Fast Track on application. 10 Fast Track Rules 2014 (SA) r 36(1). 11 District Court Act 1991 (SA) s 42; District Court Rules 2006 (SA) r 263(g). 12 Courts Administration Authority of South Australia, above n 11. See Fast Track Rules 2014 (SA) r 17(1); Fast Track Supplementary Rules 2014 (SA) r 10(1). 13 Fast Track Rules 2014 (SA) r 17(3)(h), (i); see also r 17(2). 14 Fast Track Supplementary Rules 2014 (SA) r 10(2) states that ‘an Initial Hearing … will generally be conducted by a Judge’, rather than a Master. Neither set of rules nor the Courts Administration Authority expressly state that the case is docket managed, although that may be implied by the level of case management described by those sources. Again, although the interviews did not provide data on the presiding officer for every single case, all interviewees stated or suggested that their case was docket managed. 15 See Fast Track Rules 2014 (SA) r 17(3), (4). 16 Fast Track Rules 2014 (SA) r 17(3)(b). 17 Fast Track Rules 2014 (SA) r 17(3)(f); see r 17(4). 18 One interviewee, who attributed the faster and cheaper resolution to the approach of the judge, could not state whether the more active approach was adopted because it was a Fast Track case. However, the practitioner did describe the highly active approach as unexpected in the ordinary course of litigation. College Tours Senior School Thursday 17 May, 9.30am Junior School and Ignatius Early Years Thursday 24 May, 9.30am Book online at ignatius.sa.edu.au CRICOS no: 00603F Go, set the world alight.