Media

Short alms and deep pockets

The Australian 8 June 2007
By Chris Merritt, Legal affairs editor

DECADES of reform have not solved problems in the civil justice system, which is slow, costly and open to abuse, South Australian chief justice John Doyle says. Justice Doyle acknowledges that some people go to court for purely tactical reasons, which he calls unworthy. Court proceedings can be used to intimidate opponents by 'deep pocketing' them or by generating adverse publicity.

Substantial litigation had become so expensive it is beyond the reach of average people, and even those who are fairly well off.

He asks if it is time to acknowledge 'that the defects in the system of civil litigation are such that it is part of the problem of dispute resolution, rather than the solution'.

Justice Doyle's remarks, at last weekend's national conference in Adelaide of the Institute of Arbitrators and Mediators, are the latest in a series of attacks by senior judges on costs and inefficiencies in the system.

NSW Chief Justice Jim Spigelman warned in March that unless lawyers reined in the cost and complexity of litigation they risked being sidelined. High Court Chief Justice Murray Gleeson said: 'Litigation is a perfect example of Parkinson's law: work expands to fill the available time.'

Chief Justice Doyle said there had been so many inquiries into reforming the civil justice system, 'I suspect that you could fill a room with reports.' 'Despite all this activity, and despite many changes in the legal environment, in the litigation environment, and in court proceedings, the same problems remain.'

He said most courts had embraced intensive case management to reduce costs and delays and improve the quality of justice, but there had been 'virtually no success in reducing costs as far as I can tell'. Cases were being dealt with 'a little faster, but there was still a lot of unproductive activity'.

Justice Doyle said there had been too much focus on the role of the courts and not enough on the role of the legal profession and parties to disputes. 'We will achieve change only if we can produce a fundamental shift in attitudes on the part of the legal profession and on behalf of the regular litigators. 'I doubt whether we can do much about lawyers' fees,' Justice Doyle said. Courts had limited influence over legal fees and 'litigation will never be cheap', he said.

While many reforms had been aimed at encouraging the use of alternative dispute resolution (ADR), Justice Doyle warned against excessive use of mandatory ADR. Access to civil justice was a right, and not a privilege. 'Civil litigation has uses and purposes that mean putting obstacles between people and the courts requires great care,' he said. 'Litigation is public. It can be used, and is used, quite properly, as a means of exposing a situation to the public gaze. `This applies to claims between individuals, and claims against a government and its agencies,' he said.

We gratefully acknowledge the permission from Chris Merritt at The Australian to reprint this article.