The right to be heard: can courts listen actively and efficiently to civil litigants?

This article considers the current and prospective role of the hearing rule in counterbalancing Australia’s legislative focus on efficiency in civil litigation to maintain access to justice and public faith in courts. It is undisputed that courts must provide litigants with procedural fairness and yet express consideration of the right to be heard is rare in civil litigation despite its prevalence in administrative and criminal law. Civil procedure legislation rarely includes express requirements of procedural fairness but implicitly supports the common law and underlying moral right to be heard. The COVID-19 pandemic redefined the right of litigants to have their ‘day in court’ and provided judicial opportunities to refocus on the right to be heard. This article concludes that active judicial focus on the right to be heard provides an elegantly simple means of optimising the management of civil cases.