In a speech given at the Australian Lawyers Alliance Western Australian State Conference, Chief Justice  Wayne Martin described the Australian justice system as a Rolls Royce that the average Australian could only admire rather than utilise.

The Chief Justice said that a move away from the adversarial system towards a more collegiate approach would serve the community and the system best.

“It seems to me that in some respects our justice system is analogous to this Rolls Royce, in that many Australians simply lack the financial means, knowledge and endurance to participate fully in its processes. While they can take some comfort that they live in a country which has such a justice system, to them it is inaccessible and, to that extent, of limited relevance.”

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Pointing to the economic inefficiency of the civil litigation system when operated adversarially, in so much that it requires each party to litigation to prepare each and every matter that is put in issue, he also suggested that the adversarial approach was antithetical to the way in the vast majority of matters were resolved.

“Justice Kenneth Hayne has spoken of what he describes as 'the vanishing trial' in the civil context. That description is entirely justified by the statistics maintained by the Supreme Court of Western Australia. Those statistics show that less than 3 per cent of the cases commenced in our court are resolved by a trial, which of course means that more than 97 per cent are resolved by some other means; most often by agreement between the parties,” he said.

Justice Martin also said it would be interesting to gather empirical evidence to understand why this ratio is as it is. 

“In particular, it would be interesting to know whether the high rate of resolution of cases by agreement between the parties is due to our provision of systems which encourage them to arrive at that consensus, or alternatively due to their emotional and financial exhaustion after participating in pre-trial processes. That information might assist in making decisions with respect to the most effective pre-trial processes to be engaged.”

Based on this, he argued that ‘alternative dispute resolution’ is a misnomer. Resolution of a dispute by agreement between the parties is not the ‘alternative’ it is the primary means by which disputes in our court are resolved.

From this, point, he said the current systems involve an undue focus on preparation for trial, given that only a small percentage of cases will actually go to trial. 

“What is required are systems which better identify and discriminate between those cases that are most likely to go to trial, and those cases that are most likely to be resolved by some other means.” 

That requires sensitive and subjective case management systems. Unless those systems are effective to identify and discriminate between cases, there will be a misallocation of the resources not only of the court, but also of the parties, in preparing for a trial that will never occur. 

Also of note, was His Honour’s finding that cases within the WA Supreme Court referred to mediation “often as early as the closure of pleadings, sometimes even earlier than that”, had a chance of a successful outcome almost identical to the rate of successful resolutions at mediations conducted as the last step before a trial.

“Based on anecdotal evidence, it seems that one of the impediments to settlement at a mediation which is conducted just before a trial is the substantial costs which the parties have invested in preparation for their trial ... 

"When a mediation is conducted early in the process, those costs have not been incurred, and experienced litigants will be aware of the scale of costs they are likely to incur between that early mediation and commencing their trial. Those potential savings can be injected into the settlement process.”