The case for case management: justice, efficiency and procedural fairness in Australian civil procedure

Research output: ThesisDoctoral ThesisResearch

Abstract

This thesis evaluates the active case management provisions in Australian civil procedure. It answers the question of whether the current law achieves the competing aims of justice, efficiency and procedural fairness. In order to answer this question the thesis considers in detail the terms “justice”, “efficiency” and “procedural fairness.” Each of these concepts is found to be complex and yet undefined in the relevant civil procedure legislation. This lack of definition is shown to elevate the significance of the role of judicial discretion in case management. The thesis argues that the current active case management provisions shift the focus of the judiciary towards efficiency in a way which poses a threat to procedural fairness. This threat is shown to be heightened for procedures such as summary disposition and for self-represented and complex commercial litigants. The current active case management provisions, it is argued, provide too much scope for procedural unfairness, particularly in these types of cases. The thesis concludes with suggestions for fine tuning Australian active case management through increased judicial focus on procedural fairness.
LanguageEnglish
QualificationDoctor of Philosophy
Awarding Institution
  • University of Sydney
Supervisors/Advisors
  • Allars, Margaret, Supervisor, External person
  • Cashman, Peter, Supervisor, External person
Award date12 Feb 2018
Publication statusUnpublished - 1 Feb 2018

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case management
fairness
justice
efficiency
threat
judiciary
disposition
legislation
Law
lack

Keywords

  • civil procedure
  • case management
  • procedural fairness

Cite this

@phdthesis{ef450ed13c44434ea9edc04d93f54047,
title = "The case for case management: justice, efficiency and procedural fairness in Australian civil procedure",
abstract = "This thesis evaluates the active case management provisions in Australian civil procedure. It answers the question of whether the current law achieves the competing aims of justice, efficiency and procedural fairness. In order to answer this question the thesis considers in detail the terms “justice”, “efficiency” and “procedural fairness.” Each of these concepts is found to be complex and yet undefined in the relevant civil procedure legislation. This lack of definition is shown to elevate the significance of the role of judicial discretion in case management. The thesis argues that the current active case management provisions shift the focus of the judiciary towards efficiency in a way which poses a threat to procedural fairness. This threat is shown to be heightened for procedures such as summary disposition and for self-represented and complex commercial litigants. The current active case management provisions, it is argued, provide too much scope for procedural unfairness, particularly in these types of cases. The thesis concludes with suggestions for fine tuning Australian active case management through increased judicial focus on procedural fairness.",
keywords = "civil procedure, case management, procedural fairness",
author = "Sonya Willis",
year = "2018",
month = "2",
day = "1",
language = "English",
school = "University of Sydney",

}

TY - THES

T1 - The case for case management

T2 - justice, efficiency and procedural fairness in Australian civil procedure

AU - Willis, Sonya

PY - 2018/2/1

Y1 - 2018/2/1

N2 - This thesis evaluates the active case management provisions in Australian civil procedure. It answers the question of whether the current law achieves the competing aims of justice, efficiency and procedural fairness. In order to answer this question the thesis considers in detail the terms “justice”, “efficiency” and “procedural fairness.” Each of these concepts is found to be complex and yet undefined in the relevant civil procedure legislation. This lack of definition is shown to elevate the significance of the role of judicial discretion in case management. The thesis argues that the current active case management provisions shift the focus of the judiciary towards efficiency in a way which poses a threat to procedural fairness. This threat is shown to be heightened for procedures such as summary disposition and for self-represented and complex commercial litigants. The current active case management provisions, it is argued, provide too much scope for procedural unfairness, particularly in these types of cases. The thesis concludes with suggestions for fine tuning Australian active case management through increased judicial focus on procedural fairness.

AB - This thesis evaluates the active case management provisions in Australian civil procedure. It answers the question of whether the current law achieves the competing aims of justice, efficiency and procedural fairness. In order to answer this question the thesis considers in detail the terms “justice”, “efficiency” and “procedural fairness.” Each of these concepts is found to be complex and yet undefined in the relevant civil procedure legislation. This lack of definition is shown to elevate the significance of the role of judicial discretion in case management. The thesis argues that the current active case management provisions shift the focus of the judiciary towards efficiency in a way which poses a threat to procedural fairness. This threat is shown to be heightened for procedures such as summary disposition and for self-represented and complex commercial litigants. The current active case management provisions, it is argued, provide too much scope for procedural unfairness, particularly in these types of cases. The thesis concludes with suggestions for fine tuning Australian active case management through increased judicial focus on procedural fairness.

KW - civil procedure

KW - case management

KW - procedural fairness

M3 - Doctoral Thesis

ER -