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

Research output: ThesisDoctoral Thesis

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.
Original 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

Keywords

  • civil procedure
  • case management
  • procedural fairness

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