Over the past two years, the Federal Court of Australia has implemented extensive procedural reforms to streamline court procedure and thereby reduce cost and delay for litigants.
The Victorian fast track list caters for a range of proceedings including those arising out of or relating to commercial transactions, construction of commercial documents, and most cases involving IP rights. Sixty-five cases have been filed in the list since its inception in 2007, just over a third of which have been IP matters.
Features of the fast track list include:
· Abolition of pleadings;
· Determination of interlocutories on the papers;
· Restricted discovery; and
· The judge aims to deliver judgment within six weeks of trial.
A specific procedure for patents proceedings was also introduced in the Victorian and New South Wales registries in September 2008, stemming from a pilot program run by Justice Bennett of the New South Wales registry. Like the generalist fast track, the modified procedures aim to reduce the burden of providing and assessing evidence through intensive case management, reducing the scope of discovery and streamlining expert evidence where possible.
In some cases, the quick turnaround of judgment in cases conducted pursuant to these procedures has resulted in positive outcomes for the parties. The judge in a recent case, having determined a preferred trial date six months after the proceeding was initiated, made orders drastically decreasing the scope of discovery and setting a strict timetable for the parties. Consequently, discovery was reduced to a total of less than thirty documents. The willingness of the judge to actively control the proceeding and the cooperation of the parties were the pivotal factors making it possible to expedite the proceeding.
On the other hand, the fast track procedure may cause frustration where the limited time frame and restricted scope of discovery prevent the issues in the case from being sufficiently explored. In one such case, a matter was originally listed in the fast track. However, it became apparent during discovery that there were more relevant documents than originally thought and that there were additional issues in the case which had not previously been considered. This made it difficult to comply with the fast track timeline.
The lesson from these experiences is that the merits of the fast track procedure will depend on the case. The implementation of fast track procedures shows that the Federal Court has experienced a cultural shift toward timely and economical litigation. As fast track procedures become entrenched, this will cement the reputation of the Federal Court of Australia as an ideal forum for testing intellectual property rights in a time and cost effective manner.