Tucked away in the business section of Saturday’s Age are two articles about the Supreme Court, and its funding difficulties. They don’t seem to be online, but here’s another article with much the same flavour: the Court needs more resources and new ideas to deal with civil trials. What follows is a stream of consciousness rant based only on anecdotal evidence, against the whole profession of litigators and reformers too timid to contemplate anything other than tinkering at the edges, rather than criticism of the Court. I am happy to acknowledge that some of the suggestions might turn out to be misconceived, but I wish I heard more discussion of this kind at the moment when there is a civil justice review on foot.
The Court needs more decision makers. Masters, of whom there are only a couple, and who deal with most of the work of the Court before trial, should be abolished, and good people should be paid proper money to deal with interlocutory matters properly. Existing good Masters should be promoted. Judges deal with interlocutory issues in the Federal Court, and their reasons for decision are published, so that an interlocutory jurisprudence grows up. Not so in the Supreme Court, so that it is hard for the occasional user to predict the outcome of interlocutory processes.
For litigation to go forward with proper expedition, one should be able to bring an application on within a week. Even one which is likely to take more than 2 hours to hear properly. Simple applications should be able to be brought on within a couple of days. Instead, I heard anecdotally the other day, that an application for the dismissal of a close-to-decade-old case for want of prosecution was listed for April or May next year despite the application itself already being long in the tooth. Since the beginning of this year, one can’t even get a trial date until the witness statements have been filed. From a litigant’s point of view, that is absurd. You go through a grindingly slow process in which each party is given 21 days, or a calendar month, or even 42 days to complete steps that take at most 3 days to complete, more often a few hours, then you get so ready for trial that it could happen the following week, and you wait, for months and months and months while your turn for a trial comes around, at which point you re-prepare, bring all your witnesses down from the Gold Coast and Okinawa, and your matter may or may not get reached.
It is a chronic scandal, if such a concept exists. If that sounds histrionic, it is only because we have become inured to litigation’s glaciality. There is a very real cost to delay. Because there are such long interludes between spurts of activity, lawyers juggle more cases at once. This is great for the lawyers, because they can organise their work according to their own schedules, and always be busy. But before each spurt of activity, one has to re-learn the facts in a way which one would not have to if one worked more intensively on fewer cases. Lawyers charge hundreds of dollars an hour. Every couple of hours’ re-working of a case may generate an extra thousand dollars in fees. And every month that goes by, the plaintiff’s claim increases in value by 1% by virtue of interest, which runs at 12%, accruing under ss. 58-60 of the Supreme Court Act, 1986.
It is important to have presiding over trials good people willing to work the overtime demanded of conscientious judges, because the Supreme Court is where the law of Victoria is declared. But very few cases ever get to trial and I suspect the proportion of cases which go to trial in the Supreme Court is even more infinitisemal than in other courts. If the Court does not lend its authority intelligently to the interlocutory process, and in a way which is properly moulded to the facts of the particular case in question, then the parties would be better off not having initiated proceedings in the first place. It is a matter of elementary logic that the Court ought to channel most of its energies into assisting the parties to the vast majority of cases that never make it to trial, but nothing could be further from the truth.
I suspect with a more rigid architecture of rules, a better-developed jurisprudence in relation to costs of interlocutory matters, and a system of fines for infraction of orders, things could be speeded up, the interlocutory process made more predictable, and instead of interlocutory orders being regarded as akin to the courteous recommendation published by the state of Italy for the benefit of its citizenry in the form of red lights, litigants’ solicitors might actually have an incentive to give some regard to them.
Yes, fines. Advise litigants that if they want to settle in the fortnight before a trial, they will have to pay an escalating percentage of the settlement sum to the State, the Court, the poor (I don’t care). Fine folk for not answering interrogatories properly and on time. Fines are a flexible instrument which can deal with the outrage settling like a cloud across your brow as you read this.
Then the courts should be more willing to make the trial less like a behemothic gladiatorial endurance battle. As one senior Australian judge said in an article which I have never been able to find since, there is no real reason in many trials why liability ought not to be determined separately from quantum, and apportionment of liability. The preparation of quantum submissions is often far and away the most expensive part of a trial. Often, it is the bit which requires experts. If the plaintiff loses on liability, all that preparation is worthless. But the waste is much more than that. Often, quantum must be prepared on multiple alternative bases to cope with each of several possible combinations of outcomes on liability so that there is much waste even where the plaintiff wins.
There is an undue horror of finally determining cases at an interlocutory stage, even where there is a defence that the case is statute-barred, or there is an out-of-the-ordinary advocates’ immunity defence. Of course there are difficulties in doing things on agreed or assumed facts. Of course it is not as simple as it sounds to determine a limitations defence in some cases where the moment when a representation may be said to have turned out to be false is difficult to pinpoint exactly, so that considerable evidence must be called on the question. That’s the challenge. The answer is not to be defeated by those difficulties so that they cannot be determined early on, thus literally forcing on parties without unlimited means the imperfect justice of compromise, but to work out ways in which the problems can be overcome, at an appropriately early juncture.
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