The Australian Federal Court has promulgated new Fast Track Directions which aim to get a case finished within 5 to 8 months, and to reduce costs by limiting discovery and avoiding lengthy interlocutory disputes.
I have noted before that the Australian courts have a more flexible approach to the eligibility of a case for special tracking arrangements – a case is fit for the fast track (subject to some exceptions) because that is what the parties agree or what the court orders, whereas the UK allocation depends on fixed limits.
Pleadings are replaced with Fast Track Statements, Responses and Cross-Claims. There is an express general duty to co-operate and to act in good faith,expressed thus:
5.1 The Court expects the parties and their representatives to cooperate with, and assist, the Court in ensuring the proceeding is conducted in accordance with the Fast Track Directions so that the real issues in dispute are identified as early as possible and are dealt with in the most efficient way possible.
There is also an extension of that duty to co-operate in respect of interlocutory disputes which is put like this:
5.2 Before making any application relating to an interlocutory dispute (including disputes in relation to discovery), the parties must meet and confer and attempt to resolve the dispute in good faith. If the parties are unable to resolve the dispute, any application about the issue must contain a certificate by the moving party’s lawyer that the ‘meet and confer’ requirement was completed, though unsuccessful. Failure to so certify will result in the application being immediately refused.
Discovery itself is limited in a manner which reflects the rules, if not necessarily the practice, under the UK CPR. The requirement is
7.1 Except where expanded or limited by the presiding judge, discovery if ordered in proceedings to which the Fast Track Directions apply will be confined to documents in the following categories:
(a) documents on which a party intends to rely; and
(b) documents that have significant probative value adverse to a party’s case.
… and there is a duty to make a ‘good-faith proportionate search’ and to explain what steps have been taken.
The court’s duty of active management is both expressly provided for and clearly implicit in the scheduling arrangements. The new Practice Note fits briskly on to ten pages. It will be interesting to hear how it goes and what the practitioners and judges feel about it after a year of operations.
My thanks to Geoffrey Lambert of KordaMentha for drawing my attention to the Fast Track Directions.