find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
Judges using powers to ‘shut down delaying tactics’ in litigation

Judges using powers to ‘shut down delaying tactics’ in litigation


Courts are being more proactive in pushing for a quick and cheap resolution of litigation, a partner at Johnson Winter & Slattery has said.

Speaking with Lawyers Weekly, dispute resolution partner Robert Johnston said new rules introduced into the commercial division of the Supreme Court have given judges greater ability to speed up proceedings.

Courts have an increased capacity to “control litigation” and prevent parties from drawing out cases.

“Judges are using the powers for the overriding purpose to produce a quick and cheap resolution of litigation. They are using that power more broadly to shut down delaying tactics, to shorten cases, to rule on evidence," he said.

“We've seen judges be more proactive in fashioning orders that get cases on quickly rather than judges sitting back and letting the parties complicate matters.”

Under the new Supreme Court rules, discovery does not go ahead until the evidence is in, which “fundamentally changes that practice”, said Mr Johnston.

“And in the Federal Court you've got to demonstrate the necessity of discovery otherwise you won't get it, whereas it used to just be par for the course,” he said.

The push for quicker and cheaper litigation is one of many emerging trends in dispute resolution, Mr Johnston added.

There are now “fewer but bigger” cases in the commercial litigation sphere because the cost of running cases is “just prohibitive”, he said.

“There tends to be greater specialisation because the big cases are specialist cases,” he added.

Mr Johnston said litigation funding had boomed over the past year, with new players entering the market.

Whereas the market used to be dominated by IMF Bentham, which handles large, expensive matters, now there are a number of funders prepared to fund at the lower end, below the $5 million mark.

“We are seeing a revival of some the smaller cases, which could not be afforded to be brought before,” continued Mr Johnston.

Litigators are also still seeing the flow-on effects of the introduction of proportionate liability, which was introduced in response to the liability insurance crisis in 2001.

While parties used to be able to sue one defendant and recover all their loses, leaving the defendant to pursue others for contribution, under proportionate liability, parties can only recover the amount that the defendant was responsible for and must sue the other possible defendants.

“I think that is still playing itself out, although that legislation was introduced a number of years ago,” concluded Mr Johnston.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Judges using powers to ‘shut down delaying tactics’ in litigation
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Quentin Bryce
Oct 18 2017
DV has worsened in a generation: Quentin Bryce
Former governor-general of Australia Dame Quentin Bryce AD CVO has spoken of her deep distress about...
Oct 18 2017
Academics entertain the idea of law without lawyers
Researchers from Queensland will explore some of the most disruptive trends tipped to transform the ...
Please, Continue (Hamlet), Melbourne Festival
Oct 16 2017
Hamlet suffers slings and arrows of top Victorian barristers
Victorian judges and barristers have performed the unique play Please, Continue (Hamlet) at the Melb...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...