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Abstract:
The federal and Victorian class action regimes are intended to facilitate aggregation of multiple claims. Aggregation can improve efficiency by combining similar claims and can enhance access to justice by providing a mechanism to litigate small claims. This article considers whether these efficiency and access aims are being achieved. The authors argue that whilst some developments in class action jurisprudence have been consistent with these legislative aims, other have not. Several features of Australian class action jurisprudence and practice have hampered the healthy development of the legislative regimes, including adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class communication issues. Finally, having identified these difficulties, the authors propose reform possibilities and priorities.

class action, litigation, Australia

Abstract:
The effective performance by courts of their adjudicative role depends on the availability of relevant evidence. In civil proceedings, the discovery process aims to ensure that such evidence is available. If documents that would be relevant evidence in a trial are destroyed, a fair adjudication is made difficult, if not impossible. This is so whether the destruction of documents occurs before or after proceedings commence. This article asks what a trial judge should do in a situation where relevant evidence is unavailable because one of the parties has destroyed documents before the proceedings commenced but anticipating that such proceedings were highly likely, if not certain, to occur. The authors argue that the criminal test of attempting to pervert the course of justice (or contempt of court), as laid down in the recent case of BAT v Cowell, is not the appropriate test because it focuses on the lawfulness of the destruction rather than on the effect of the destruction on the other party's ability to obtain a fair trial. The authors explain what the proper test should be - whether the destruction of documents has made a fair trial impossible - and identify the factors that should influence a trial judge's exercise of discretion in a case where documents have been destroyed.

litigation, civil procedure, court, legal procedure, civil, discovery, trial, evidence

Abstract:
In previous articles in this series, the authors have identified and discussed the challenges posed by self-representation both for litigants and for other stakeholders in the civil justice system; highlighted gaps in knowledge about litigants in person and charted a course for further empirical research; reported upon findings of a survey of solicitors conducted to elicit their views on the issues raised by self- representation, and considered specific issues relating to the recovery of costs. The purpose of this fourth article is to report upon findings generated by a survey of the barristers' profession in Hong Kong, which was designed to gather information about the issues raised by self- representation from the perspective of barristers acting and appearing in court for represented parties.

Abstract:
In October 2002, the authors published an article which discussed the challenges posed by self-representation for litigants and other stakeholders in the civil justice system, identified the gaps in knowledge about litigants in person and charted a course for further empirical research to fill those gaps. The purpose of this second article is to report on a survey of the Hong Kong solicitors' profession that the authors carried out in the spring of 2003. The survey was designed to gather information on the issues raised by self-representation from the perspective of solicitors for represented parties.

Abstract:
While litigants in person are increasingly common in civil proceedings in Hong Kong and in other common law jurisdictions, we know very little about them. Most of the available information is anecdotal and does not answer key questions about the reasons why litigants represent themselves and the connections between self-representation, merits and outcomes. This first of two articles discusses the challenges posed by self-representation for litigants and other stakeholders, identifies the gaps in our knowledge about litigants in person and charts a course for further empirical research to fill those gaps.

Abstract:
Procedural rules reflect different, often competing, interests. The rules governing applications to set aside default judgments are an example of this tension. The traditional approach to setting aside 'irregular' default judgments, the 'as of right' rule, entitles defendants to have the judgment set aside, without considering the merits. The rule ensures that litigants comply with the relevant procedural rules, and that defendants have notice of proceedings and are protected from the injustice that might result if judgment is unfairly entered against them. However, Hong Kong courts have begun to reconsider the as of right rule, as a result of the 1998 English Court of Appeal decision in Faircharm v Citibank. That decision departed from the traditional approach in that the Court of Appeal considered the merits of the defence, decided there was no defence and refused to set aside the 'irregular' judgment. In doing so the court introduced a new consideration, that cases should be dealt with expeditiously and proportionately. Hong Kong courts must now consider whether to retain the as of right rule, or whether the Faircharm approach would better serve Hong Kong's interests.