*Please note that the links to the content in this Part will direct you to Westlaw AU.
The latest issue of the Journal of Civil Litigation and Practice (Volume 5 Part 2) contains the following material:
- Similar fact evidence in civil litigation
- The categories of negligence are never closed: Manufacturers’ liability for defective building cladding in New Zealand
From Susskind to Briggs: Online court approaches – David Harvey
This article examines recent developments in England that involve the innovative use of technology to change court processes and the resolution of small civil claims of between £10,000 and £25,000. The article commences with an overview of proposals for an Online Court developed by the Civil Justice Council under the chairmanship of Professor Richard Susskind. Clearly the issue of reform of the civil justice process was an idea whose time had come because the organisation JUSTICE released a report shortly after that of the Civil Justice Council that in many respects endorsed and developed the Susskind Report, although it should be acknowledged that Professor Susskind was involved with both bodies. By the middle of 2015, matters had developed to the point where Lord Justice Briggs was charged with reviewing Civil Courts Structure and, in his interim report of December 2015, gives detailed consideration to the proposals for an Online Court. This article reviews those proposals and goes on to suggest some further measures that may be considered in bringing an Online Court to fruition. The essential theme is that new information and communications technologies can be used innovatively to change and improve processes which, although initially disruptive, may transform the civil justice system for the better. The article closes with some suggestions where artificial intelligence systems may be deployed in the civil court and judicial processes.
An asymmetrical jurisdiction clause is a jurisdiction agreement within a contract which purports to operate differently with respect to the different parties to the contract. Typically, such a clause will require one party to bring proceedings only in a named court, but allow the other party to bring proceedings in that court or any other court of competent jurisdiction. Such clauses offer a range of advantages over traditional jurisdiction agreements for a party with a stronger bargaining position in a cross-border transaction. Asymmetrical jurisdiction agreements are valid in common law jurisdictions, including Australia and New Zealand, that have not significantly modified their private international law by legislation. However, the English position is significantly complicated by the rules on jurisdiction prescribed under the Brussels I bis Regulation. While the better view is that they are still valid, they expose the stronger party to a series of litigation risks. A traditional exclusive jurisdiction agreement may accordingly be preferable for parties contemplating an asymmetrical jurisdiction agreement in favour of the English courts.
This article concerns the National Mediator Accreditation System (NMAS) Practice Standards which were extensively revised in 2015. According to the Chair of the Mediator Standards Board, the standards now “specify clearly the minimum practice and competency requirements” for NMAS accredited mediators. The study undertaken in this article, in which the revised Practice Standards are compared with those that they replace, suggests otherwise. Numerous gaps (for example, as to the mediator’s duty of confidentiality) and uncertainties (for example, as to the meaning of “impartiality”) in the revised standards are identified. The author concludes that the revised standards provide little guidance to mediators faced with a choice between contradictory courses of action and conflicting values. The usefulness of the standards as a tool to educate mediators (and to instil in them a sense of the values of mediation), participants and potential participants has been compromised by the recent revisions. The article offers possible solutions for overcoming shortcomings in the standards.
- Aircraft Support Industries Pty Ltd v William Hare UAE LLC (2015) 298 FLR 183;  NSWCA 229: The Enforcability Of Foreign Arbitral Awards In Australia
- Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 90 ALJR 228;  HCA 43: Foreign State Immunity Provides a Stumbling Block to Recovery
For the PDF version of the table of contents, click here: JCivLP Vol 5 No 2 Contents.