Media

Judge says only the very rich can afford to litigate

The Australian Financial Review 8 June 2007
By Rachel Nickless

South Australia's top judge has deplored the costs and delays involved in litigation, but said it was up to the profession and litigants, rather than courts and government, to solve the problems.

Speaking at a recent mediation conference in Adelaide, South Australia Supreme Court Chief Justice John Doyle said litigation was so expensive that even a "fairly well-off person" could not afford to get involved in substantial litigation. Court procedures were "somewhat inflexible" and had not changed fundamentally in 200 years, he said.

He acknowledged the process was slow, adding "this is usually because of the manner in which parties conduct litigation".

"It is depressing that despite the many inquiries and reports on civil litigation, we have been circling the same problems for the last 30 years. As far as I am aware no one has yet come up with a solution that has persuaded all of the main players." He suggested switching from a traditional focus on what the courts could do to reform the system.

"We might not have paid sufficient attention to the part played by the legal profession, by the parties themselves, and by other environmental factors," he said. "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 in the relevant field," he said.

There was no one-size-fits-all solution, and requiring all parties to try mediation before litigation was inappropriate, he said. But he said "it is worthwhile trying to identify those categories of litigation as to which early review and tailor-made approaches will be attractive to the players". He told The Australian Financial Review that personal injury claims and building and construction disputes were two areas that might benefit from a more flexible approach, given they often involved regular litigants and there was often some similarity in the cases.

It was up to litigators and their lawyers to tell the courts why they were not settling cases, or failing to settle quickly, and what they needed for this to occur more often, he said. "It's not a matter of changing court rules or judges doing things," he said. But Judicial Conference of Australia chairman Bruce Debelle argued judges could do more to tackle the problems of expensive litigation. Speaking at the same mediation conference he called for more serving judges to become mediators, arguing that without their help mediation may be seen as a "second class" system.

Justice Debelle, a judge in Justice Doyle's court, said: "Litigation has now been developed and institutionalised to such a degree that it's a lengthy and expensive process. Has not the time been reached when judges' skills should include the capacity to resolve disputes by other means in addition to the adversarial litigation as we know it?" He argued judges needed to equip themselves with mediation skills to "maintain their authority" and to ensure that mediation was not simply seen as a "second class system of justice for those who are unable to afford to engage in litigation".

A number of judges, including the Chief Justice of the NSW Supreme Court, Jim Spigelman, and former chief justice Laurence Street, have previously raised concerns that judges acting as mediators jeopardised courts' traditional roles.

But Justice Debelle said judges should address these issues by making sure that parties understood at the outset what role they were filling in a mediation, and that they would be barred from having anything to do with the matter should it proceed to litigation. He called for further mediation education, adding that the experiences of courts that allowed serving judges to act as mediators had been positive.

We gratefully acknowledge the permission from Rachel Nickless at The Australian Financial Review to reprint this article.