Maritime Law Procedures and Initiatives In the Federal Court

• Author: The Hon. Justice Brian Tamberlin
• Pages: 25-31

PAPER FOR THE 33rd ANNUAL MLAANZ CONFERENCE

SYDNEY

27 – 29 SEPTEMBER 2006

MARITIME LAW PROCEDURES AND

FEDERAL COURT INITIATIVES

Justice Brian Ta mbe rlin

1. Introduc tion – Pre ssure s for Change

With the new Millennium, Courts, and Tribunals, as a consequence of the drive for greater transparency

and efficiency, have re-examined their performance in order to align Court practices with efficient, just and

speedy case management, hearing, and adjudication. Courts are in the process of modification and adoption

of new procedures. In some nations it is necessary to consider entire new systems. Vietnam is an example

of this.

Litigants in the international community do not accept that the longer and more exhaustive the path to a

final hearing and the longer the judgment, the greater is its quality. Delay does not mean greater

deliberation or sounder reasoning in an age of real time processing.

This pressure for efficacy in litigation management resonates strongly in maritime disputes, where litigants

inevitably compare the performances of courts in different countries. As in other areas of practice, such as

intellectual property, comparisons are made as to costs, timeliness and consistency of outcome. Where a

national court system falls below expectations its courts are not only in danger of losing respect and

authority, but litigants will by-pass them with arbitration, mediation and neutral evaluation mechanisms.

Alternative resolution services are useful, but only effective when conducted against a background of

pragmatic and clear legal authority, properly reasoned by the courts, against which parties can assess their

prospects of success or failure in negotiation or arbitration by reference to predictable outcomes in the

Courts in the event of ultimate disagreement.

Where courts are consistently bypassed as a consequence of delay, lack of flexible procedure, uncertainty

and reduced expense, the benchmarks will not be available and resort to alternative resolution will be

greater and of diminishing effectiveness. Litigants resort to ADR because of perceived finality, speed and

expense.

Faced with these considerations the Federal Court has examined its practices and rules in maritime matters.

Today, I will outline some initiatives the Court has taken. The goal is, in broad terms: efficiency; a speedy

hearing, determination and outcome; early identification and resolution of the real issues in dispute; and a

minimum of interlocutory disruption. This involves a limitation of documentary material consistent with

proper presentation of the case. Generally, the quicker the hearing, and the better the reasoning, the greater

the confidence in a predictable outcome will be and less appeals will be taken. An unpredictable dilatory

appellate process is a major disincentive.

The objective of this Court, as a national Court operating in all States and Territories throughout Australia,

is to coordinate disparate conferrals of jurisdiction in all maritime matters, much of which is given to the

Court on a piecemeal basis under many different Acts ranging from the Maritime Safety Act to Seafarers

(2007) 21 A&NZ Mar LJ

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