Comments on: Civil procedure – the column

By: skepticlawyer » Has the time come for the common law to be scrapped?

skepticlawyer » Has the time come for the common law to be scrapped? — Tue, 02 Sep 2008 02:06:35 +0000

[...] the grinding down process of litigation. This is something touched upon by Nicholas Gruen in his recent exploration of civil procedure law, using the Max Moseley case as an example. This doesn’t seem fair, and leads people to feel [...]

By: Niall

Niall — Sun, 31 Aug 2008 08:35:03 +0000

seems to me to be a continuance of the Golden Rule. He who has the gold……

By: skepticlawyer » Making litigation less expensive

skepticlawyer » Making litigation less expensive — Tue, 26 Aug 2008 12:30:44 +0000

[...] Gruen has written an interesting piece over at Club Troppo about reforms to litigation. Go and have a read. I have long thought some kind of hybrid between [...]

By: pete m

pete m — Tue, 26 Aug 2008 11:52:38 +0000

Oh God, please no comp scheme like NZ – currently underfunded in the billions, or Victoria, where a govt department runs the medicos around. Do you really want that?

While I agree lawyers can cop the blame for many issues, I have personally found it is the client who causes most dramas. They don’t give you documents, or give you silly instructions, or ignore advice, or tell lies etc.

The CCT in Qld can easily get bogged down in detail – seen it too often. The worst decisions I have seen have been made by tribunals where no lawyers are around. And it isn’t just blame splitting. I have had clients go along with very good cases and come away with a loss, which leaves you scratching your head.

You get the justice you pay for. (I mean that as a community, and not necessarily individually).

By: tim watson

tim watson — Tue, 26 Aug 2008 07:58:58 +0000

One not particularly original idea would be taking torts outside of the legal system through an injury compensation scheme like that operating in New Zealand, or the transport accidents insurance scheme in Victoria.

Another thought would be a more active application of the inherent jurisidiction of the court to award costs against practitioners who deliberately waste time and engage in procedural games.

Get out the stick!

By: pedro

pedro — Tue, 26 Aug 2008 06:44:53 +0000

BBB, our CCT is given jurisdiction over a range of areas and is not just a claim amount basis. Here is the list.
Architects Act 2002
Building Act 1975
Building and Construction Industry Payments Act 2004
Body Corporate and Community Management Act 1997
Classification of Computer Games and Images Act 1995
Classification of Films Act 1991
Classification of Publications Act 1991
Domestic Building Contracts Act 2000
Disability Services Act 2006
Liquor Act 1992
Lotteries Act 1997
Manufactured Homes (Residential Parks) Act 2003
Pest Management Act 2001
Plumbing and Drainage Act 2002
Professional Engineers Act 2002
Property Agents and Motor Dealers Act 2000
Queensland Building Services Authority Act 1991
Residential Services (Accreditation) Act 2002
Retirement Villages Act 1999
Tourism Services Act 2003
Wine Industry Act 1994

In many cases the only appeal is on questions of law, which means that the findings of fact are set in a tribunal without rules of evidence applying.

By: Bingo Bango Boingo

Bingo Bango Boingo — Tue, 26 Aug 2008 04:32:29 +0000

When I say “on the spot” I mean “at the hearing”.

BBB

By: Bingo Bango Boingo

Bingo Bango Boingo — Tue, 26 Aug 2008 04:31:43 +0000

pedro, Victoria has a similar system whereby a complaint can be brought and heard without lawyers if the claim is for less than $10k. $35 for the filing fee, no formal written defence, no discovery process at all, decisions on the spot in easy cases (no more than 6 weeks otherwise) and no possibility of a costs award against the plaintiff. If you want to go for more than $10k you can, but then the other side is entitled to bring lawyers along (and from memory there is still no possibility of a costs award). No idea about the quality of decisions, but apparently they go for a fault split most of the time.

BBB

By: pedro

pedro — Tue, 26 Aug 2008 04:24:16 +0000

In Qld the problem of cheap access to justice was to be solved with the Commercial and Consumer Tribunal, in which there are (almost) no lawyers and no rules of evidence. I suppose it is cheap, but the the quality of the decision making is really really bad, and the time involved is probably not much different from litigation.

Mind you, that’s just the annecdotal complaints of a lawyer, but I don’t know if any serious research has been done.

By: FDB

FDB — Tue, 26 Aug 2008 02:10:34 +0000

Something’s flaked out in my journal database account just today, so I’m having a bastard of a time getting actual work done! I reckon wikipedia’s the best I could do… as apparently is the case with half of my students!

By: Nicholas Gruen

Nicholas Gruen — Tue, 26 Aug 2008 01:56:54 +0000

No – please do some for me FDB!

By: FDB

FDB — Tue, 26 Aug 2008 01:44:21 +0000

Excellent. That will save me doing any research of my own.

By: Nicholas Gruen

Nicholas Gruen — Tue, 26 Aug 2008 00:25:21 +0000

FDB, I will try to write a little more on the question you ask in part two.

By: FDB

FDB — Mon, 25 Aug 2008 23:58:29 +0000

“The cost of consultants from builders to engineers reports is running up and I will able to make full claim on those according to the lawyer. Sometimes Ken, the money isnt the issue.”

So are you saying you won’t make full claim on all your costs, or does the above make no sense whatsoever?

Nice piece anyway Nic. The issue of bias must be the big sticking point – when the judge is merely adjudicator they will be seen as more passive, and any increase in active judicial involvement invites suspicion of interest.

What has the continental situation been in terms of appeals on that basis?

By: Tysen Woodlock

Tysen Woodlock — Mon, 25 Aug 2008 18:22:47 +0000

You’re a great communicator Nicolas. I enjoyed that article.

By: Jc

Jc — Mon, 25 Aug 2008 16:30:41 +0000

What if the money isn’t the issue though and a person wants justice like Mosley felt he wanted.

I have a dispute with a builder going on at the moment. He lied to me as to when he was going to do the insurance repair and I placed the whole thing in the hands of a lawyer with the instruction that I wanted it to cost the other side the max within the limits of the law (as he deserves it).

The cost of consultants from builders to engineers reports is running up and I will able to make full claim on those according to the lawyer. Sometimes Ken, the money isn’t the issue.