We discover perennially, and to our occasional disappointment, that although there may be new things under the sun there are many things we thought were new, that are not. The Jurassic Park of fiction to which I refer in the title of this talk, was created by Michael Crichton and was itself redolent of a novel written by Arthur Conan Doyle in 1912 under the title “The Lost World”. Indeed Crichton’s sequel to Jurassic Park bore that same title. I suspected, when preparing this paper, that the application of the Jurassic Park metaphor to litigation was itself probably not original. Inevitably, this turned out to be the case. It has evidently already been used by Professor John Langbein of Yale University Law School.
Public discontent with the judicial process is certainly not new. Examples abound in world literature from both civil and common law systems. One such is the 16th century tale by Rabelais of the impeachment of Judge Bridlegoose. Bridlegoose took a long time to decide his cases and when he decided them did so by throw of dice. The impeachment proceedings related to a perverse judgment against a tax assessor. Asked about the perversity of the judgment he said he had been unable properly to read the dice. Defending the delay between commencement and disposition, he quoted a maxim:
“Time is the father of truth.”
Rabelais was aware of alternative dispute resolution. He invented a mediator called Peter Nitwit whose talent was to settle cases when the litigants were drifting to the end of their dispute anyway because they had run out of money. Nitwit’s maximum was:
“Dulcior est fructus post multa pericula ductus — a fruit is sweeter for having survived many dangers.”
Another example, apparently informed by the civil law system is Kafka’s great novel “The Trial”. It has been seen as operating at various levels, but one of those levels appears to have been a critique of the Austro-Hungarian Court of his time1. At the end of a long tortuous and incomprehensible legal process, Joseph K, about to be executed asks himself plaintively:
“Where was the judge whom he had never seen? Where was the High Court to which he had never penetrated?”
I have taken examples from the civil law system because contemporary critics of the common law system have sometimes cast yearning eyes in the direction of Europe. Studies conducted around the world over the last three decades indicate concerns about costs and delay in litigation across a number of different legal systems. Professor Hector Fix-Fierro of the National University of Mexico, writing in 2003 on Justice and Efficiency in Courts, observed2:
“Scientific papers and official reports diagnose the same disease everywhere and warn of its dire consequences: growing caseloads; rising costs, and longer delays; scarce financial and human resources; an inefficient work organisation. A state of ‘crisis’ is explicitly identified and described in large and small, rich and poor regions, regardless of their level of political and legal development, such as Puerto Rico, Italy, the United States, Spain, Quebec, Chile, Brazil, England and Wales.”
Obviously, these observations must be treated with reserve as they cover significantly disparate societies and economic circumstances.
In Australia we have a strong independent judiciary and legal profession. There is a political and social culture which generally accepts and respects the independence of the courts and the importance of their constitutional function at both State and Federal levels. That is so notwithstanding sometimes robust discussion and criticism, in the political and wider public arena, of particular court decisions or trends in decision-making.
In Australia, as in many other parts of the world, there is ongoing concern about the accessibility of the civil justice system generally, its cost to society and, broadly speaking, its efficiency. As to cost, there is no doubt that there are many who would see vindication of disputed rights in the courts as beyond their economic reach. And when modest sums of money are involved the economics of litigation become questionable having regard to its costs. There have been significant contractions in the amount of civil work as a proportion of the total civil and criminal workload in some courts. On the other hand, at the level of so called mega-litigation, and indeed larger scale complex commercial litigation generally, there is an ongoing concern about whether it involves a disproportion of allocation of public resources to the resolution of private disputes.
As to efficiency the decision-making process applied in the courts to resolve disputes could not be applied to the high volume decision-making of governments, corporations or private citizens. It is individualised decision-making. From an administrator’s perspective it costs too much and takes too long. While it applies the law to the facts of the case, the facts of each case may differ generally and the law may not always be clear. For that reason alone, it is sometimes denounced as inefficient albeit without any clear definition of the concept of efficiency. Among other modes of decision-making in the public and private sectors, it can appear like a dinosaur. The kind of dispute resolution which people seek in the courts necessarily involves labour intensive marshalling of evidence and documents, identification of issues, consideration and testing of evidence and the application of legal principles to sometimes complex factual situations.
The inescapable requirements to define issues and to present evidence and arguments mean that there are bounds upon what can be done to improve the working of the system without abandoning its fundamental objectives. There may be various formulations of those fundamental objectives. They all come back to the nature of the judicial function the primary character of which was described in the High Court in Fencott v Muller3:
“The unique and essential function of the judicial power is the quelling of … controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion.”
Despite the bounds set by the nature of the judicial function the demands of our society for accessible justice and the requirements of a complex economy to operate efficiently in competitive international markets engender a constant quest to do better. My personal experience as a Judge for more than 22 years is that the quest for improvement from within and outside the profession and the courts has been unrelenting. The public record shows that there has been an ongoing and high level of interest and application of human and financial resources to improving the system. That reform process shows no sign of abating.
When I joined the Federal Court in 1986 it already had in place rules which provided for a mandatory directions hearing following the filing of the initiating process and appearance. Routinely, in the Perth Registry, that directions hearing was held before a Judge and, generally speaking, the same Judge would hear the trial of the action. The intensity of that judicial case management appears to have increased significantly over the years and is reflected in civil case management in State courts. Recent enhancements of the judicial management process in the Federal Court are reflected in the Victorian “Rocket Docket” system of which Justice Gordon will speak later in this session.
When I commenced as a Judge in 1986 the concept of court-annexed alternative dispute resolution was in the early stages of its development. Mediation of litigious disputes was beginning to emerge as a professional service which could be offered by legal practitioners although in its early days it was not seen as being particularly remunerative. Provisions for referral to mediation and arbitration were inserted in the Federal Court Act and provisions included in the Rules covering referral to mediation, including judicial mediation. There were experiments with a number of forms of alternative dispute resolution. These experiments included the use of judicial mediation, mini trials and early neutral evaluation. These were part of a wider program of improvement in the litigation process.
So much was recognised in the report on the Cost of Justice, produced in February 1993, by the Senate Standing Committee on Legal and Constitutional Affairs. The Committee acknowledged that:
“While there remains much to reform in the legal system, the Committee’s inquiry showed that there is now a wide spread commitment to change.”
The Committee’s report sought to put in train systemic review by placing reform of the legal system permanently on the agenda of those with the capacity to improve the system4. The Committee had observed in its Report that 357 submissions which it received and the comments made by many witnesses during its 12 days of public hearings and remarks made informally to Committee members over the duration of the inquiry had painted “a truly bleak picture”. It agreed with the community perception that the cost of taking legal action was unreasonably high. It said5:
“In part, this arises from the complexity of the law and its administration. It was put to the Committee that any legal system truly concerned with producing justice was inherently expensive to operate. It was also put to the Committee that reforming many of the antiquated processes of the legal system would produce just results at less cost. The Committee concludes on the evidence before it that the legal system can be made more accessible without compromising its integrity.”
The Committee identified those with direct responsibility for the maintenance and repair of the legal system as parliament, the executive, the judiciary and the legal profession6.
The multi-dimensional character of the challenge of reforming the system was evidenced in the Committee’s proposals and its difficulty evidenced in their generality. They included making the law comprehensible to the community, improving the transparency of the legal system and changing the culture of the legal system and the attitude of those dealing with its users, particularly judges and the profession. The concept of judicial monitoring of the progress of litigation through the system was endorsed. So too was the proposition that the profession has a responsibility for making the most efficient use of the system and not simply applying a variant of the old saying that “all is fair in love and war”. The Committee endorsed the view of the Law Society of New South Wales that the profession had an obligation to do something about the culture where people simply said:
“Let’s litigate everything; let’s fight to the death. Let’s take a point and go back to the boardrooms of our major firms or companies and show off because we have one a point in court.”
There had been some consideration by the Committee in one if its Discussion Papers which preceded the publication of its Report, about the implications of inquisitorial procedures for Australia. Reference was made to the inquisitorial system as it operated in Germany. It referred to an estimate by Lord Devlin that the adversary system was some three times more expensive than the inquisitorial system.
But as the Committee noted in its Discussion Paper, the adoption of the German system in Australia would involve the appointment of many additional judges and the expenditure of large amounts of public money. Even at that time West Germany had more than 20,000 judges7. Even so, the Law Council at the time acknowledged that the adoption of particular aspects of inquisitorial procedure might help to reduce the cost of litigation. These included greater judicial control over proceedings, case flow management, a restrictive adjourned policy, the establishment of compulsory pre-trial settlement conferences and more flexible court hours.
In 2000, the Australian Law Reform Commission produced a major report entitled “Managing Justice”8. It focussed, of course, upon the federal judicial system and federal review tribunals. There was an emphasis upon the use of technology in litigation and techniques to reduce the areas of dispute and therefore time and cost involved in the use of expert witnesses. The individual docket system of the Federal Court was the subject of a number of recommendations in relation to national procedures. The development of harmonised rules and originating processes where appropriate for Federal Court and State and Territory Supreme Courts was also urged. There were many other recommendations. I make reference to these matters simply to indicate the extent of the interest in this field in Australia over the last two or three decades.
In 2008, the Victorian Law Reform Commission produced a substantial Report on the Civil Justice System. It included recommendations relating to the facilitation of early resolution of disputes without litigation, standards of conduct expected of participants in civil litigation, the improvement of alternative dispute resolution and case management. Chapter 6 of the Report entitled “Getting to the Truth Earlier and Easier” included recommendations for pre-trial oral examinations. The difficult topic of discovery of documents was addressed in Recommendations 80 through to 92 of the Report. These included the abandonment of the Puruvian Guano test for a direct relevance test. Procedural flexibility in respect of discovery was proposed in Recommendation 85. Expert evidence and the role of expert witnesses was dealt with in Ch 7, the improvement of remedies in class actions, funding mechanisms, the cost of litigation and ongoing civil justice review and reform were dealt with in subsequent chapters.
These and many other substantial inputs into the reform of litigation indicate an underlying acceptance of the necessity of a judicial dispute resolution process and a commitment to its future.
There is, it must be acknowledged, a public interest aspect in the resolution of private disputes in the public forum of a court of law.
In a celebrated article sceptical of the alternative dispute resolution process, Professor Owen Fiss wrote in 1984 in the Yale Law Journal9:
“Adjudication uses public resources, and employs not strangers chosen by the parties but public officials chosen by a process in which the public participates. These officials, like members of the legislative and executive branches, possess a power that has been defined and conferred by public law, not by private agreement. Their job is not to maximise the ends of private parties, not simply to secure the peace, but to explicate and give force to the values embodied in authoritative texts such as the Constitution and Statutes; to interpret those values and to bring reality into accord with them.”
That, of course, is not an objection to alternative dispute resolution for without alternative dispute resolution the courts would be overwhelmed by litigation. Rather, it is a reminder of the public necessity of the judicial system. It is a reminder that while the process is open to ongoing reform and improvement, it also has an ongoing future.
The Chief Justice of the High Court of Australia, the Honourable Robert French
Footnotes
- Robinson, “The Law of the State” in Kafka’s The Trial, (1982) at 127.
- Fix-Fierro, Courts Justice & Efficiency — A Socio-legal Study of Economic Rationality in Adjudication (2003) at 1.
- (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ.
- Report by Senate Standing Committee on Legal and Constitutional Affairs, The Costs of Justice — Foundations for Reform, February 1993 at [31].
- Ibid at [16].
- Ibid at [47] and [48].
- Senate Standing Committee on Legal and Constitutional Affairs, Costs of Legal Services and Litigation, discussion Paper No 6, The Courts and the Conduct of Litigation, [3.17] to [3.21].
- Australian Law Reform Commission, Report No 89, Managing Justice — A Review of the Federal Civil Justice System.
- Fiss, “Against Settlement” (1984) 93 Yale Law Journal 1073.
‘Bridlegoose’ illustration by Gustave Dore, published by eBooks@adelaide.
