The movie The Castle carries an exaggerated illustration of weakness of the British-Australian adversary system of justice.
It is in the Federal Court and the little Aussie battler is about to lose the Kerrigan family home for an airport extension. He has got a mug suburban solicitor (Tiriel Mora of Frontline fame) to put his case in the face of a sharp corporate lawyer representing the privatised airport.
The suburban solicitor has no idea how to present his case. At one stage he approaches the bench and asks the judge for help. She patiently explains that it would be improper for her to do so. The corporate lawyer smiles benignly and the Kerrigan case is thrown out.
We later learn that Kerrigan has a very good case because he endears himself to someone outside the court who turns out to be a retired QC (Bud Tingwell) who had come to see his son admitted to the Bar.
Tingwell takes the case on appeal to the High Court brilliantly explaining that the “”compensation on just terms” clause of the constitution cannot be satisfied by money alone because this is an irreplaceable family home.
It is an extreme and fictitious example, but it illustrates the fairly passive role of judges in our adversary system, irrespective of where justice might lie. Judges announce the winner and the score (in damages) in a contest between two parties. They do not set out for truth and justice. They just hope those two things emerge from the contest.
There has been a debate going about whether the adversary system should be modified to incorporate some of the elements of European law set off by a series of issues papers by the Australian Law Reform Commission.
This week the Law Council of Australia issued its 460-page response, by and large resisting change, but acknowledging that some worthwhile changes can be made under existing rules.
At present our system seems beset by costs and delay. The courts are only for the rich. The culture of the judges and the rules which bind them contribute to this. Judges are at the mercy of the parties’ lawyers. They have little control over which witnesses are called or in which order and rarely ask questions of them and certainly never ask series of searching questions. In first-instance cases, judges often have little or no idea about the case about until it starts. Written submissions before the case begins are rare in other than appeal cases.
The idea that a judge might try “”to get to the bottom of this” is abhorrent to our system. The reason is that the judge might become biased. It is not a very good reason. A judge ultimately has to make his or her mind up.
Our rules of evidence also make getting at the truth more difficult. No hearsay (or second-hand) evidence is allowed, with minor exceptions. It would be better to allow it in to help complete the picture, but discount its value against other evidence. In criminal trials a lot a evidence about a defendant’s past convictions is not allowed and juries are not allowed to make adverse inferences from silence. Why not? We do in everyday life?
The defence of this is that there is no such thing as swift and cheap justice. Justice takes time and money.
That may be so, but it seems that justice these days is getting so expensive as to be prohibitive. Worse, richer people can simply defeat justice by starving the other party out. That is more likely to happen in a system where judges are passive and less likely in a system where they are allowed to be more active, especially in the lead up to trial where the richer litigant can give the poorer one the runaround with batteries of costly pre-trial applications.
I have long thought that judges should not be picked (as they are almost totally now) from among people who have been practising at the Bar for a long time. I think it would be better to have a dedicated judicial career stream which begins straight from law school, starting with adjudication on parking cases and working up. And that judges should be far more active in cases, from the moment the dispute is filed and be active in settlement negotiations.
It seems to me that judges have allowed themselves to be snowed by lawyers and been too frightened to do anything about it lest they get over-turned on appeal or accused of bias or lack of independence. The result appears to have been costlier, longer and more delayed trials of disputes.
I say “”appears” deliberately because the Law Council make a very pertinent point. It argues that we do not have much data about costs and delays.
The collection of data was supposed to have been one of the main aims of the Australian Institute of Judicial Administration when it was set up a decade and a half ago.
In these days of sophisticated computers it should be a fairly simple thing to set up a spreadsheet in each court with headings such as: date dispute began; hearing date; length of trial; cost to each party; and a satisfaction level of each party. The summary (without parties’ names) could be published annually for each court. Lawyers, of course, would have to forgo a little of their client confidentiality and be exposed to public scrutiny of their fees. But given that the court system and the legal professions are monopolies (and a compulsory monopolies at that if you are a defendant), this might be the only way we can make reasonable comparisons with other systems, provided, of course, we can get other systems to keep similar data.
It is probably true that people with disputes involving very large sums of money, against which court courts are not significant, would be reasonably satisfied with the system. It certainly gives those people ample opportunity to air every aspect of their case. But for many the ratio of costs to amount at stake is so close that costs become the most significant issue in deciding whether to litigate, so the courts become closed to them.
Perhaps that is a redeeming feature of our system, the fear of costs forces people to settle. But if parties are unequal one can be blackmailed into surrender by threat of litigation. That is not justice.