Can Chapter III cope with Mega-Litigation?

Chapter III of the Constitution is not usually noted for its ability to adapt to the changing demands of modern society.  How, then, does Chapter III deal with the increasingly common phenomenon of ‘mega-litigation’? This post by PhD candidate Anna Olijnyk is based on a paper presented at the 2012 Gilbert + Tobin Postgraduate Workshop.

100 days in court.  Thousands of pages of pleadings and submissions.  Thousands more pages of witness statements and documentary evidence.  Dozens of interlocutory judgments.  Months spent writing a 1,000 page judgment.  This is the task facing a judge who is unlucky enough to preside over a case of ‘mega-litigation’.

While a precise definition of ‘mega-litigation’ is elusive, the term is generally used to describe civil (often commercial) litigation that is extraordinarily complex, time consuming and expensive.  Recent examples include C7, ASIC v Rich, Bell Group, Ingot Capital Investments and Alstom Power.    It is obvious that any single mega-litigation matter places a large burden on court resources.

Not surprisingly, courts have developed techniques for dealing with mega-litigation in order to save time, narrow the scope of the dispute, and make sure the evidence is presented in the most accessible way possible.   These techniques include the use of novel procedural devices such as  ‘hot tub’ expert evidence, referral of questions of fact to external referees, and splitting trials into separate issues.  Judges managing mega-litigation also make extensive and sometimes imaginative use of established discretionary powers and case management techniques.  Regular directions hearings are held; the judge becomes familiar with the case at an early stage; parties are encouraged to identify the real issues in dispute; timetables for procedural steps are set.  If the case goes to trial, the judge can direct that the evidence be presented in a particular way, and can place strict limits on oral and written evidence.

None of these techniques are unique to mega-litigation.  Indeed, some form of case management is used in virtually all Australian courts.  But mega-litigation calls for a combination of inventive procedures and rigorous case management; this is an area in which procedural innovations are put to work with particular intensity.

The picture that emerges is of a judge who is creative, active, involved, and in control of the progress of the case.  This contrasts sharply with long-held ideas about the role of the court in an adversarial system.  The judge has traditionally been seen as aloof and passive, while the parties control proceedings and are free to put forward their case as they see fit.
Mega-litigation, then, casts the court in a conspicuously non-traditional role.  What does Chapter III of the Constitution have to say about this?

Chapter III is not only concerned with the powers that courts exercise; it is also concerned with the way in which courts exercise those powers.  Federal courts cannot be required ‘to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.’  A string of cases commencing with Forge establish that State courts cannot be deprived of their defining characteristics.  These characteristics include independence, impartiality, and adherence to the principles of open justice and procedural fairness.  Could the changes to court processes designed to deal with mega-litigation deprive courts of their essential character or defining characteristics?

I am optimistic that Chapter III is able to accommodate most of the changes necessary for dealing with mega-litigation.  I have three reasons for this optimism.

First, Chapter III protects broad values underlying court procedure, rather than specific procedural rules.  In Nicholas, the High Court confirmed that Chapter III does not prevent Parliament from legislating on matters of practice, procedure and evidence.  Indeed, these matters have been the subject of constant legislative reform for over 100 years.  It would be untenable to argue that Chapter III entrenches procedural rules as they were at 1 January 1901.  The rules were regularly changed before that date, and have continued to change ever since.  General principles such as open justice may be among the defining characteristics of courts; but there are many different ways of providing open justice.

Secondly, each of the defining characteristics of courts is itself flexible and subject to exceptions.  For example, the requirements of procedural fairness are heavily dependent on the circumstances of each case.  The hearing rule does not require that the parties be allowed to put forward absolutely all of the evidence or arguments that they wish to.  In a mega-litigation case, it may not be unfair to limit the material put before the court in order to make the matter more manageable.  Similarly, a fair-minded observer who was aware of the necessity of intense case management of mega-litigation might perceive that a judge was able to bring an impartial mind to the resolution of a matter notwithstanding their close involvement with the case from its early stages.  It may be quite possible for traditional procedures to be modified in order to meet the special demands of mega-litigation, without compromising any of the defining characteristics of courts.

Thirdly, in a different context, the High Court has unanimously endorsed a robust approach to case management.  In the 2009 decision of Aon Risk Services v ANU the Court held that a plaintiff ought not to be allowed to amend its pleadings, during trial, to add a new cause of action.  No constitutional issue was raised in this case.  Significantly, however, the Court acknowledged that approaches to procedural law can (and should) be modified in light of the pressure of modern caseloads, and the need to make efficient use of court resources.  It is possible that these considerations would inform the content of the ‘defining characteristics’ of courts, should the High Court ever consider whether the management of mega-litigation detracts from those characteristics.

The validity of any particular measure introduced to deal with mega-litigation obviously depends on exactly what that measure involves, and the threat it poses to the essential or defining characteristics of courts.  But there are strong indications that the requirements of Chapter III are flexible enough to permit significant changes to court processes, in response to the challenge of mega-litigation.

Anna Olijnyk is a PhD candidate at the University of Adelaide

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