Efforts to provide meaningful access to justice to more Australians will be in vain as long as court resources are tied up by large and lengthy proceedings, Chief Justice Peter Quinlan told Lawyers Weekly.
Almost 20 years ago, Justice Ronald Sackville, then on the bench of the Federal Court of Australia, described a 120-day hearing between Seven Network and other media companies as “mega litigation” that placed a large burden on the court’s time and resources.
Seven had alleged companies like News Corporation, Foxtel, and Publishing and Broadcasting Limited (PBL) conspired to prevent its C7-pay TV operation from securing sports broadcast rights. By the end of the proceedings, 85,000 documents had been generated.
“It is difficult to understand how the cost incurred by the parties can be said to be proportionate to what is truly at stake, measured in financial terms. In my view, the expenditure of $200 million and counting on a single piece of litigation is not only extraordinarily wasteful, but borders on the scandalous,” Justice Sackville said.
In a plenary address delivered at the Australian Legal Convention last November, Western Australia’s Chief Justice Peter Quinlan said such litigation is now “common across the country”. In his jurisdiction alone, there is at least one piece of “mega litigation” at any one time.
“The court time they consume is measured not in months, but in years. Judges are routinely occupied by a single case out of the thousands of cases commenced in the court for months, and even years, at a time.
“No longer can this justice be described as extraordinarily wasteful – it has sadly become ordinarily wasteful, and the impact of this on access to justice for ordinary citizens cannot be understated,” Chief Justice Quinlan said to an audience of Australia’s foremost legal professionals.
While courts remain duty-bound to determine the disputes brought before it, Chief Justice Quinlan said it must still be acknowledged that the burden placed on the justice system and the costs of that to the community “is becoming, if not already, intolerable”.
“Until we find solutions to the monopolisation of the court’s limited resources by the well-resourced and well-armed, our efforts to provide meaningful access to justice to the large bulk of the population might well be in vain,” Chief Justice Quinlan said.
In conversation with Lawyers Weekly after the address, Chief Justice Quinlan said this monopolisation is one of the biggest challenges standing in the way of improving access to justice.
Due to how well-resourced mega litigation is, he said it is “very difficult” at the court end to effectively filter through all the issues to determine whether they “are actually necessary to be dealt with”.
To address this, Chief Justice Quinlan said there should be more active evaluation at certain points in the system, including appointing referees who can sit down and identify how a case can be more disciplined so it does not continue to hold up time and resources.
“A judge who has to work on one case for an entire year means the rest of the community is deprived of that judge’s services. That judge might be able to hear dozens of other cases if they weren’t.
“It’s really not so much the cost of litigation, it’s the opportunity cost of what the resource could be doing if it weren’t tied up. I think everybody, especially in the legal profession, has got a role in disciplining themselves,” Chief Justice Quinlan said.
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