By Elle Belekas -
Snapshot
- Judicial patience for unfocused litigation is wearing thin as courts place greater emphasis on proportionality, efficiency and the responsible use of public resources.
- Recent decisions show that every procedural choice — from pleadings and discovery to amendments and expert evidence — can build or deplete a practitioner’s credibility with the court.
- These developments highlight that effective litigation strategy increasingly turns on identifying the issues that genuinely warrant judicial determination.
Litigation strategy can no longer be devised solely by reference to doctrinal possibility. It must also engage with the realities of judicial tolerance — a constraint that has grown increasingly tangible as civil litigators navigate evolving judicial expectations. Across jurisdictions, patience is wearing thin for litigation conducted without clear focus or regard to proportionality and efficiency. Judges offer fewer indulgences, apply sharper interventions and are increasingly ready to express dissatisfaction with how a matter is being run.
This recalibration of judicial expectations is a response to systemic pressure, resource constraints and a shift in how courts conceive their role. Efficiency obligations define the overarching purpose of civil proceedings as the just, quick and cheap resolution of the real issues in dispute, a purpose enshrined in section 56 of the Civil Procedure Act 2005 (NSW) and section 37M of the Federal Court of Australia Act 1976 (Cth). The contemporary civil dispute is no longer presumed to warrant exhaustive forensic exploration. While the rhetoric of proportionality and case management are well established, recent decisions reveal those principles assuming sharper practical force in the conduct of litigation. Courts are increasingly willing to constrain pleadings, limit discovery, curtail expert evidence and compress hearings where the marginal utility of further process is low. Excess attracts attention. Inefficiency attracts scrutiny.
