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Week 1 Court adjudication, Case Management and Alternative Dispute…

- - - - The Rules of Court are not a code
        
        The Rules of Court complement the inherent jurisdiction of the court
        
        inherent jurisdiction entitles the court to issue practice notes and directions
        
        Practice directions are usually commentaries
        assist parties in preparing litigation
        
        not legally binding
        
        courts may ensure they are complied with by exercising their inherent power to make an order against a party, such as a stay on proceedings or an order for costs.
        
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- - - - Supreme Court of Queensland, Practice Direction No 4 of 2020 Case Flow Management – Civil Jurisdiction establishes a general system to achieve rule 5 of the Uniform Civil Procedure Rules which provides:
        
        (a) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
        
        (b) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
        
        (c) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
        
        (d) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
  - - - These conflicting views are illustrated by the two High Court decisions: Sali v SPC Ltd (1993) 116 ALR 625 at 629 [extracted 2.6.4C] where it was held a judge is entitled to consider the effect of an adjournment upon court resources and the claims of litigants in other cases and
        Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 [extracted 2.6.7C] placed greater emphasis upon justice between the parties to the litigation when considering case management issues
        
        Issue resolved in
        
        The conflicts were resolved in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, (2009) 239 CLR 175 [extracted 2.7.8C] in favour of the first approach
  - - - The term ‘case management’ encompasses ‘caseflow’ and ‘caseload’ management. In particular, the terms ‘caseflow management’ and ‘case management’ are used interchangeably in the literature.
- - - - There are many approaches to ADR, but they all rely on communication.
    - - Power imbalances
      - Enforcement of agreements to mediate
      - National Mediator Accreditation System
      - Evaluating mediation
      - Features of mediation
    - - Mediation, negotiation, arbitration and other forms of ADR have ancient origins, but were re-discovered in the 1970s as a reaction to cost, delay and access to justice issues associated with litigation.
    - - In most jurisdictions, courts have the express power to refer all or part of a civil dispute to an ADR process.
      - The Supreme Court of Queensland Act 1991 (Qld), Uniform Civil Procedure Rules 1999 (Qld) and District Court of Queensland Act 1967 (Qld) establish mediation and case appraisal as part of the pre-trial management process.
    - - Facilitative
        
        – facilitation
        
        – conciliation
        
        – mediation
        
        – ombudsmen
      - Determinative
        
        – adjudication
        
        – arbitration
        
        – expert determination
        
        – private judging
        
        – fact-finding
        
        – early neutral evaluation
        
        – case appraisal
        
        – mini-trial