One of those reforms is an overhaul of its courts system, which is viewed as being slow, inefficient, and a handbrake on commerce. For example, the World Bank reported this year that it took on average over four years to enforce a contract in Greece (compared to an OECD average of 1.5 years).
Does Australia have anything to worry about?
Why is an efficient court system important?There is a legal maxim that states ‘justice delayed is justice denied’.
In 2014, the Commonwealth Productivity Commission noted that a number of adverse consequences flow from a court system that was slow to resolve disputes. These include potential prejudice for litigants, adverse social and economic implications and the potential for some litigants to effectively abandon otherwise meritorious claims.
Without doubt, a legal system that efficiently resolves disputes in a timely manner is more attractive to domestic and international investors. By contrast, delay and uncertainty arising from unresolved disputes can be catastrophic.
How do Australian courts fare?The World Bank also provides data for Australia: on average, it takes just over a year to enforce a contract.
The Productivity Commission keeps more detailed data including the percentage of a court’s current caseload that has been pending for longer than 12 and 24 months. The table below summarises the Australian averages in the highest courts.
|Court||Percentage of pending caseloads older than 12 months||Percentage of pending caseloads older than 24 months|
|State and Federal Appeal Courts||13%||3%|
|State Supreme Courts and Federal Court||30%||13%|
Queensland beats the national average, as does the New South Wales Supreme Court (but its Court of Appeal is above the national average).
As with all statistics, the data has limitations. For instance, the Productivity Commission data does not take into account that:
- most cases settle and, as such, many cases have been resolved not by the courts but by the parties, and
- some delays are the fault of the litigants’ conduct (although it might be argued that the courts have a role to play in ensuring that any delays are minimised).
What can an Australian litigant do to fast-track proceedings?Under Australian law, litigants are generally able to have urgent matters resolved quickly. However, this is often only done on an interim basis, with a genuine reason required for the proceeding to be resolved urgently (something more than the fact that common commercial expediency requires it to be resolved).
Many courts now have specialised lists for instances where litigants want to resolve disputes quickly for commercial reasons. These include the Federal Court Fast Track List, the New South Wales Supreme Court Expedition List and the Queensland Supreme Court Commercial List. Having a proceeding referred to one of these lists will likely reduce the time taken to have the proceeding finalised.
There are also procedures to deal with cases that are moving too slowly through the courts. An example of this is Caseflow Management in the Queensland Supreme Court, a system by which the Court intervenes in proceedings that are progressing slowly to help (or force) parties bring them to a timely resolution.
Are there alternative methods to resolve disputes efficiently?Arbitration is a popular alternative to dispute resolution and is commonly marketed as a quicker way to resolve disputes. Empirical evidence, however, suggests that this is not always the case and that arbitration is not necessarily any slower or faster than litigation. That said, many arbitration institutions have developed fast-track procedures which ensure disputes are resolved within a fixed time.
Alternative dispute resolution methods (such as mediation and negotiation) provide a quicker option to resolve a dispute. However, these methods are complementary to, and not a substitute for, litigation and arbitration as they will not necessarily resolve the dispute. Mediation and negotiation will ordinarily form part of a prudent dispute resolution strategy, in the hope that they will bring the dispute to a swift end.
Be preparedWhile Australia fares relatively well when it comes to efficiency of its court systems, litigants invariably face some uncertainty as to when the dispute will be resolved. There are many stages at which delay risk is a fact of litigation.
Always be prepared to mount an argument and evidence for urgent resolution, and remember that delay at any stage of contractual enforcement can count against you when it comes to seeking what might be seen as preferential treatment by the court system.