“We must dig deeper in order to understand better why fewer civil disputes are being determined by the application of judicial power,” Justice Hayne said in his speech to the Supreme and Federal Court Judges Conference on 23 January.

Justice Hayne did offer some clues as to the missing trials’ whereabouts. His speech discussed the shortcomings of modern litigation, including the sheer volume of information submitted for judicial consideration in the digital age.

According to Justice Hayne, statutory reform of tort law and an increase in alternative dispute resolution is an unsatisfactory explanation for the phenomenon of what he called “the vanishing trial”. Instead, he blamed the common law doctrine of contentious procedure for turning “litigation into a game”.

“If cases are settling because one party is able to so prolong and complicate the litigation as to outlast a financially weaker party, the system fails. Settlement in those circumstances is a mark of failure not success,” he said.

In a pragmatic assessment of the divergent interests of litigants, lawyers and justice, Justice Hayne said that it was not unusual for parties to “obfuscate and delay” proceedings. He also acknowledged the problem is often compounded by lawyers with an interest in delaying proceedings and lack of case management by judges.

“Not all lawyers will find it expedient to reduce the number of directions hearings that are held,” he said. “They are not unhappy if the case is over-managed. Each hearing will be a source of costs taken to account when budgeted costs to be charged are compared with bills actually rendered.”

The question “why?” was the focus of Justice Hayne’s speech. The role of a judge, according to Hayne, is to ask “why” repeatedly if necessary in order to compel wayward parties to be more direct.

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“The judge can always ask ‘Why?’. And even when the parties are well represented by experienced lawyers, and the parties are in heated agreement about what is to happen, there will often be advantage in asking ‘Why?’,” he said.

“If the judge does not ask that question, there is a very real risk that the case will be under-managed.”

Justice Hayne advised that lawyers leave their memory sticks loaded with discovery documents at home, saying that there must be “good reason” to undertake the expensive exercise of providing access to every document discovered in a case available as an image file to “everyone in the courtroom”.

“The reason must be found in why doing this will help to decide the real issues in the case and decide those issues efficiently.”

The pursuit of modern methods is not an end in itself, Justice Hayne said. “It is not enough to say that we can do it. And it is certainly not enough to say that doing it will show how modern the particular court or judge is. The only modernity it will show is conformity to the modern trend of prolonging the trial of litigation,” he said.

“Prolonging the trial of litigation is a modern phenomenon, but it is not one of which any court could be proud.”