Degree Name

Doctor of Philosophy


Faculty of Law


This research project contributes to the debate about what constitutes access to justice within the context of the Australian federal civil justice system. It is the story of how the case transfer processes of one federal court, when transferring so-called 'less complex' cases to another federal court, can have a negative impact on access to justice for litigants within the system. This is so despite it, on the surface, appearing to function in accordance with principles of due process in the majority of cases and as the legislature intended. The nature of those sometimes hidden transfer processes and their implications, as well as the realities and tensions underlying the objectives of law reform, are revealed. The lesson learned is that recognising the vital role procedure plays in the justice system is essential in the delivery of quality justice in the implementation of law reform.

The research explores the fact that significant reform of the federal civil justice system occurred in 1999-2000 with the establishment of both the Federal Magistrates Court of Australia as an additional federal court and a statutory system governing case transfers between it and the Federal Court of Australia, known in this thesis as the Federal Concurrent Jurisdiction System (FCJS). The legislature intended the FCJS to enhance access to justice by granting litigants greater choice of forum by providing a new cheaper, simpler and quicker forum for the resolution of general federal law disputes. At the same time, the Federal Court is granted power to change the forum by transferring matters it regards as more appropriate for determination by the other court, and thus reduce its workload to concentrate upon its 'more complex' cases.

The operation of the FCJS has been an overlooked area of public attention, both at the scholarly and court level. This is remarkable given the Federal Court utilises the FCJS to reduce its workload more than it does any other statutory case transfer scheme. The few previous empirical studies undertaken of the workings of the Federal Magistrates Court in relation to accessibility to justice have tended to focus upon matters commenced within the Court, and particularly with regard to the family law jurisdiction. This research redresses the absence of public examination of how the FCJS operates in both theory and practice in relation to general federal law cases commenced in the Federal Court, but then transferred to the Federal Magistrates Court.

The study answers the main research question - whether the operation of the FCJS creates any impediments to access to justice for cases transferred by the Federal Court to the Federal Magistrates Court - by taking a group of 204 finalised transferred matters. It evaluates, using quantitative and qualitative research methods, the extent to which the transfer processes employed in those matters accord with four principles of procedural justice (equality, openness, fairness and the provision of adequate reasons for decision). Access to procedural justice, rather than any other approach to evaluating access to justice, is chosen because of the discretionary power invoked to override the original choice of forum, and the importance of litigants participating fully in an accountable court system that instils public confidence by affording due process, fairness and transparency. The research methods employed are novel in that they evaluate the impact of law reform and the delivery of procedural justice through in-depth investigation of court computer records that reveal what transpires during case transfer processes.

The overall findings of the research are generally positive for the operation of the FCJS. The true value of the findings, however, is in what they expose about the operation of the FCJS at the micro level and how this affects the administration of federal justice. To the extent the study reveals weaknesses in the delivery of procedural justice, it is argued the problem lies with both the nature of the statutory scheme and its implementation as part of managerial judging practices of the transferring court. The law reform objective of maintaining court efficiencies (reducing workload) should not prevail over the objective of providing access to justice.

The implications for litigants (access to justice), the courts (workloads, accountability and public confidence) and the development of procedural jurisprudence are identified. The main solution to the problem is relatively straightforward - enhance transparency in transfer decision-making processes and public discussion in relation to this procedural, yet integral, part of the federal civil justice system.