What usually bogs down big Supreme and Federal Court cases is discovery coupled with a fuzzy idea of what one is suing about. On the former any document relevant to an issue in dispute is discoverable. For example in the Longford class action that meant more than a dozen barristers spending more than a year poring over gas and fuel records about what warnings were given about a disruption to the supply line etc… On the latter point too many lawyers take the view that every possible cause of action possible should be pleaded in the alternative. That can mean taking a case in all sorts of directions.

While litigation has always had a bad wrap on cost the blow out in the time a case takes to run to judgment is a worrying modern phenomanum. The answer is close and ruthless management by judges, registrars and Masters. Hitting lawyers with sanctions like costs orders they have to pay themselves when they don’t meet a deadline is not a bad start. Applying the Federal Court’s rocket docket is another reform worth applying across the board.

As for one side winning because of deep pockets that has always been a fact of life. That is especially the case with practised iltigants like banks and insurance companies, the model corporate citizens. The antidote in personal injury is the no win no fee approach taken by plaintiff’s firms. In some cases contingency feees should be used. That keeps the plaintiff on the field.

And the size of its claim was $50 billion. As you say, I’m not really criticising NAB for standing up for itself. But one’s sympathies in the case are a bit of a tabloid diversion are they not?

There were a bunch of facts, and I don’t accept that we needed something like $100 million and a sizeable chunk of a decade to get to some resolution of them. That’s absurd, don’t you think?

An alternative possibility based on a very quick skim – Idoport’s losses in the early rounds were such that settling and paying NAB’s costs would bankrupt them anyway. So they elected to keep fighting in the hope that NAB would pay them to go away. NAB refused to do this, and spent a fortune to discourage likeminded litigants. I’m not sure where exactly this gets us.

Even if hes keen to manage the case, the judge, and perhaps the side wanting to go on a fishing trip or to put its opponent to the test, wont know what theyll find. So its invidious, even kind of psychologically difficult for the judge to call off the search.

Just my opinion but fishing trips should be ruled out completely. If the side seeking evidence is unable to clearly and concisely state the problem, what they are looking for and why, then they should be told to stop wasting the court’s time. A specific “anti-fishing” rule would give the judge ammunition to call it off, “Sorry, your search is vague, anti-fishing kick in”, or “Sorry, you didn’t find what you were looking for, you had your shot, no more of that”.

I’ve only skimmed over this particular case, but Idoport Pty Ltd seem to believe that they were heavily involved in the development of the “valuable Intellectual Property”. In which case you would think they could provide a nice, detailed list of what to search for. If they can’t provide that then this itself would be evidence that Idoport was only tangentially involved with the research and development effort, making me think that NAB should own the IP.

Naturally, a lot of this case goes into interpretation of the contract… one of my pet hates is creative contracts. If the government can do one thing for the citizens and for the legal industry it would be to make a registry of “standard” contract terms, with well understood meaning. They your contract can just refer to the terms that apply: I’ll have a 1001, 1451 and a 1321 with XXX as the A party and YYY as the B party. Contract done. It would take a bit of time and money to set it up, but save sooo much effort down the line, not just for people who end up in court, but also for people who don’t want to end up in court. To some extent, the Howard government tried this with AWA’s but they went the other way — let people write whatever into a contract, and then try and get it registered. It led to a big mess, and I think they are still behind in actually reading those things.

BBB

“The adversarial system means that the judge is an umpire rather than a truth finder.”

The adversarial system acknowledges that The Truth will never be fully uncovered, but that a procedure whereby parties lead evidence and are then cross-examined on it is the best way to get as close as possible to The Truth. You can certainly argue whether that is right or not, but it is misleading to set up a dichotomy of “umpire” and “truth finder” because it implies that the umpire is indifferent to the truth. And to the extent that it implies that inquisitorial systems do not involve the weighing of conflicting evidence from parties whose interests are divergent, ie. umpiring, it also misleading.

“The upshot of all this for me is that were unlikely to make much real progress until we go further towards an inquisitorial system…”

The devil is in the details. What particular aspects of the inquisitorial system would you like implemented? Small things make a big difference when it comes to civil procedure.

Cheers
BBB

PS. it can be confusing to refer to the alternatives as ‘common law’ and ‘civil law’ when adversarial procedures are not exclusive to ‘common law’ countries and inquisitorial procedures are not exclusive to ‘civil law’ countries. The common law/civil law distinction is better used when highlighting the difference between systems which continue to include judge-made law as well as the general principle of precedent and systems that rely (at least officially) on statute alone.

It seems to be working wonderfully well for NAB, Freehills et al!

The common law system clearly works best for those with deep pockets, which is essentially the problem- It’s a Rolls Royce system.