As just one in thirty cases of the lodged cases in the Supreme Court of Western Australia go to trial, the Chief Justice of Western Australia has called for some consideration of how cases are treated.
AS just one in thirty cases of the lodged cases in the Supreme Court of Western Australia go to trial, the Chief Justice of Western Australia has called for some consideration of how cases are treated.
In a speech covering the various problems with case management in Australia at the Australian Legal Convention in Perth, Chief Justice Wayne Martin referred to "the vanishing trial", and how very few cases are now resolved by trial.
"In most courts, and I think ours is probably no exception, all cases are treated as if they are going to go to trial, and are all prepared as if they are going to go to trial," said Chief Justice Martin.
"The challenge, I think, is to get better at identifying the cases that are likely to go to trial and treat them in a particular way, and better at identifying the cases that are not likely to go to trial and spare the parties the expense of preparing as if the case will go to trial."
Chief Justice Martin said the Supreme Court of Western Australia should call itslef the Supreme Dispute Resolution Centre, "because that would more accurately reflect what we do".
Likewise, the judge said, it is a misnomer that reference is made to "alternative dispute resolution".
"If you look at the cases resolved in our court, mediation is not the alternative resolution mechanism, it is the main mechanism for the resolution of cases. It is resolution by the trial that is the alternative."
The Chief Justice said the legal profession needs the legal equivalent of what the medical profession calls a system of triage. A case's system would be immediately assessed, and then sent to a particular stream, he said.
"So that if a Bell case, or a C7 case walks into the court, it gets sent off to the intensive pro-trial stream, and a lot of resources are applied to it.
"On the other hand, an Inheritance Act dispute might be sent straight off to mediation before the parties are given the opportunity to exchange the often vitriolic affidavits that are going to push the family members further and further apart and impede a consensual resolution," he said.
The judge called for a bespoke system of case management, which meets the needs of each particular case. He said the system must be flexible and managed consistently so that the same manager sees a case through to its finish.
With those systems, he said, "with no disrespect to the Federal Court", rocket dockets and expedited lists could be eliminated.
See the judge's whole speech here: