find the latest legal job
Legal Advisor
Category: Other | Location: All Darwin NT
· Exciting and challenging environment · 3 year fixed contract - Position # LO6
View details
Property Lawyer | In-house | Global UK Company | 3-8PQE | Melbourne
Category: Generalists - In House | Location: Melbourne VIC 3004
· Be part of a large in-house team · Property experience an advantage
View details
In-house Property Lawyer - 3-6year PQE | Dynamic High Impact Role
Category: Generalists - In House | Location: Melbourne VIC 3004
· Highly regarded internal legal team · Ideal first in-house role
View details
EXECUTIVE DIRECTOR
Category: Other | Location: Perth CBD, Inner & Western Suburbs Perth WA
· Strategic Leadership Role · Strong Commercial Skills & Knowledge
View details
LAW COMPLAINTS OFFICER
Category: Other | Location: Perth CBD, Inner & Western Suburbs Perth WA
· Statutory Appointment · Legal Profession Complaints Committee
View details
Justice an easily admired, yet inaccessible Rolls Royce: Chief Justice

Justice an easily admired, yet inaccessible Rolls Royce: Chief Justice

Western Australia's top judge last week called for an overhaul of access to justice in the state._x000D_

WESTERN Australia's top judge last week called for an overhaul of access to justice in the state.


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.”


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.”


Promoted content
Recommended by Spike Native Network
more from lawyers weekly
May 26 2017
Coroner’s Lindt Café siege findings to have consequences for criminal lawyers
One of the most extensive coronial inquests in NSW has now concluded, with 45 recommendations concer...
May 26 2017
Lawyers can be humans too, judge says
Judge Felicity Hampel of the Victorian County Court has spoken about the need for lawyers to engage...
Sydney
May 26 2017
Sydney to host international dispute resolution conference
A discussion focusing on the future of dispute resolution will come to Sydney on Monday, 29 May, as ...
APPOINTMENTS
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years...
Angela Lynch
May 9 2017
Women’s legal service appoints chief executive
Women’s Legal Service Queensland has appointed an experienced family lawyer as its new CEO. ...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...