Civil procedure – the column

Thanks to Ken Parish for helpful comments and corrections.

The high price of justice

Nazi Sex Romp!

Now Ive got your attention Im going to talk about legal procedure. After the lecture well return to the sex romp.

Attorney General Robert McClelland has joined the chorus of condemnation seeking better access to our courts. In cases both large and small, the cost of litigation is often hugely, “absurdly” to quote the Attorney “totally disproportionate to the value of the claim.”

No-one’s solved the problem. Anywhere. We haven’t solved it for the same reasons we’ve not tamed over-regulation. The devil’s in the detail. And as life gets more complex and computerised, the detail just keeps growing.

In our system the opposing sides – generally their lawyers – construct the case by following the rules of a procedural game, each trying to get the upper hand. The judges role is to adjudicate this contest; and only indirectly to find the truth. This provides cover for delay, denial and obfuscation.

As High Court Justice Hayne recently put it “Usually only one side . . . will be anxious to isolate the determinative issue in the case and have that decided quickly. The other side will have powerful reasons to avoid that being done.”

The biggest shakeup of the system occurred where it all began. In the late 1990s, English reforms stemming from Lord Woolf’s comprehensive report introduced much stronger disciplines on parties to solve or narrow disputes before trial and greater judicial powers to manage cases.

The reforms succeeded in clearing the backlog in the courts but failed to the extent they’ve simply pushed costs back to earlier pre-trial interlocutory proceedings.

In Australia too, despite bold, Woolf-like legislative declarations that the overriding purpose of civil procedure is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NSW Civil Proceedings Act 2005), huge cultural and structural problems remain. Judges are often uncomfortable managing cases. And as Justice Sackville has argued, sufficiently vigorous refusal to indulge a litigant in putting their opponent to the test on every minor point could lead a case to miscarry on appeal for bias.

Under the leadership of Chief Justice Spigleman New South Wales has led on civil procedure sufficiently to become business jurisdiction of choice. But its no legal nirvana. Spigleman complained recently that the flag fall for discovery of documents for a significant commercial dispute is often $2 million.

To match or better NSWs legal competitiveness, the Victorian Law Reform Commission has been hard at it, recently publishing a sensible and comprehensive 700 plus page report, its 177 recommendations running over 20,000 words.

It highlights the poverty of data on which to make sound decisions. But its too much the creature of the legal culture its trying to tackle. Its proposed Civil Justice Council which would carry much of the future agenda is a specialist stakeholder body, an unlikely driver of substantial micro-economic reform. And theres no recommendation to experiment perhaps in some specialised court with a truly inquisitorial process like Europe’s civil law system or our own Royal Commissions where the judge is chief investigator, not the umpire between legal opponents.

And where UK courts now charge for their time with discretion to publicly fund to avoid hardship, the Victorian report shies away from anything so bold. I hope some enterprising State or Federal Treasurer understands what easy pickings this could make for their next razor gang.

To quote one commentator reviewing the Woolf reforms, delivering true proportionality “seems unlikely without a much more fundamental reform, such as moving away from the adversarial system”.

In fact civil law systems have problems too so theyre no panacea on their own. We need to search for a felicitous hybrid that melds the best of both systems a subject for another column.

Meanwhile back in England, pity poor Max Mosley having a quiet S&M night with five friendly prostitutes. (He’s the high profile son of Oswald Mosley, British Fascist leader and Diana Mitford. Hitler attended their 1936 wedding.) Max was secretly videotaped by News of the World. He won £60,000 damages for invasion of privacy.

But even though the basic evidence the tape and newspaper article was already public, the costs of both sides still came to fourteen times the damages or nearly £1 million.

So much for proportionality in post-Woolf England.

And so much for your rights to privacy if you don’t have a million odd to wager.