(Published in Vol 1 Pt 4 (Dec 2012) of the Journal of Civil Litigation and Practice)

By Damien Cremean

If anyone researches the area of freedom of information (FOI) one will encounter nine different regimes – all dealing with the same subject: FOI. Although all deal with the same subject, each does so differently to the others. In some areas the differences are not great (eg the various definitions of the word “document”) but in others the differences are considerable. Yet, why there should be any difference in the first place is puzzling. Why should FOI in one State or Territory be different in another? Why should the Commonwealth regime be different again? No one can explain the various differences and it remains a mystery.

The same applies to civil litigation. Civil litigation is conducted differently in all States and Territories and at federal level. Yet the topics of civil litigation do not differ from State to State or Territory to Territory – with only some minor variations here and there. Cases usually will be in some branch of contract or tort law. Or in some allied area such as conversion, defamation, nuisance or unjust enrichment. And this applies throughout the States and Territories and even in federal jurisdiction – so far there as it arises for exercise.

Civil litigation is conducted according to rules of procedure – no matter which State or Territory one might be in. But in each State or Territory, generally speaking, there are different rules of procedure depending on the court in which the litigation is being conducted. Some advances, however, have been made in this regard in Queensland and New South Wales (as to the former, see the Uniform Civil Procedure Rules 1999 (Qld) and as to the latter see the Uniform Civil Procedure Rules 2005 (NSW)). However, even as between themselves there are differences or divergences between these two sets of so-called uniform civil procedure rules so that as between themselves they are not very uniform at all.

In some States, such as Victoria and Western Australia, there are three levels of court whereas in other States and Territories, such as Tasmania or the Northern Territory, there are only two. But whether it be a three level court system or only two, each court usually has its own rules of procedure – its own way of doing things and its own way of dealing with civil litigation.

None of this is to include much mention of federal jurisdiction. The Federal Court has its own rules; the Federal Magistrates Court (or Federal Circuit Court as it is to be) also has its own rules as also does the Family Court. Then there is the High Court.

Nor is it to include mention of State or Territory tribunals that also conduct significant civil litigation, such as the Victorian Civil and Administrative Tribunal (VCAT), which also follows its own procedural rules (chiefly achieved by way of Practice Notes or standard directions). And so called “super-tribunals” seem to be gaining in popularity.

All of this points to an overwhelming multiplicity of rules of procedure all doing the same thing – regulating the conduct of civil litigation – but doing so in ways that are often inexplicably different. This means that someone conducting civil litigation in, say, New South Wales must conduct it differently in some major or minor respects to the way they would conduct it in, say, South Australia or Tasmania – for no readily apparent, or good, reason. This can lead to mistakes due to a lack of familiarity with some local rule and a mistake could well have fatal consequences for one or other of the parties.

A multiplicity of rules of procedure dealing with the same legal topic – civil litigation – does not seem to serve any useful purpose. Indeed it seems to be something that is positively disadvantageous in this world of ours where legal practice is now Australia-wide in many or most instances, with many firms (even suburban firms) acting for interstate clients. Something procedural must be done in one State or Territory when it would not need to be done in another State or Territory, were the same case to be conducted there. This adds to confusion amongst practitioners and litigants alike and it is wasteful and time consuming, and thus costly, when no good reason suggests itself as obvious justification for differences.

It is time to consider uniform rules of procedure for the conduct of civil litigation throughout Australia. This surely cannot be that difficult – the same subject is being dealt with throughout. Truly uniform rules would rid us of the discrediting notion that one must conduct civil litigation in one or other of the States or Territories depending on the rules of procedure that apply there and what they prescribe. There would be one set of rules of procedure applying throughout the States and Territories of Australia – rather like the old uniform companies legislation based on the Companies Acts of 1961.

All States and Territories could easily promulgate one set of rules of civil procedure. If there is a special reason for a State or Territory to have some particular rule – perhaps of idiosyncratic value or historical worth – that could be accommodated. These rules could apply to all the courts in the States and Territories – so that, for example, as in New South Wales or Victoria, there would not be in effect three different sets of rules, providing for much the same things, for three different courts at different jurisdictional levels doing the same job. The uniform rules could also apply to the tribunals in the States and Territories in the conduct of their civil business – perhaps with due allowance being made for a less formalised and less technical process.

There is no reason why we should not aim to have in place uniform rules of civil procedure say by 2015 or 2020. Civil litigation will be able to be conducted much more seamlessly instead of in the fragmented way it is conducted now. The standardisation able to be achieved would be remarkable and no longer might it be possible for someone to have a technical rule-based advantage or disadvantage in one State or Territory as opposed to any other. It is an aim that also fits in well with the notion of a national legal profession. And we are already speaking of the possibility of an Australia-wide codification of contract law – or at least that is apparently under consideration by the federal government.

We may be able to turn our attention to uniform rules of procedure in federal civil jurisdiction in the meantime. In reality that is of greater pressing need for litigants and practitioners alike than any uniform contract law.

Citation: (2012) 1 JCivLP 171.