Civil Justice in Crisis: Comparative Perspectives of Civil Procedure

By Adrian A. S. Zuckerman; Sergio Chiarloni et al. | Go to book overview

5
Civil Justice Reform in Australia

G. L. Davies


I. INTRODUCTION

The civil justice system in Australia is derived from and remains substantially similar to that in England. Moreover, notwithstanding a federal system, it has remained substantially similar in all its various state and federal jurisdictions. Indeed, until the last decade or so, it had remained virtually unchanged for about a century notwithstanding that, especially over the last four or five decades, there has been a huge increase in the volume and complexity of litigation and in the classes of litigants.1 Whereas, at the turn of the century, it was, in the main, men of property and a few corporations who litigated, now almost everyone is a potential litigant. This has been due substantially to social changes and legislative initiatives in social welfare and economic regulation.

Our present system of dispute resolution cannot cope with this increase in the number and classes of litigants and in the complexity of litigation. The system is too labour intensive for that. And because it is too labour intensive it is too costly; in most cases in our system the costs of those that go to trial are disproportionate to the amount or value in dispute and, for the losing party of average means, they may be ruinous.2 Reducing the cost of dispute resolution must therefore be the primary objective of civil justice reform.3

There are, however, two concerns which must be addressed about the consequences of reforms aimed at reducing the labour intensiveness of dispute resolution. The first is that they may bring with them an increased risk of error; in particular that some relevant fact may be overlooked or its significance not fully appreciated. That does not mean that reforms of this kind should not proceed; on the contrary, as I shall endeavour to show, I think they must if cost is to be substantially reduced. But it is necessary to appreciate that cost reduction

I acknowledge with thanks the diligent work of my former associate Mr Andrew Tuch in the preparation of this essay, especially the graphs.

____________________
1
Coopers & Lybrand W. D. Scott, Report on a Review of the New South Wales Court System', May 1989, p. 69 (hereinafter Coopers & Lybrand).
2
Cf. G. Brennan, "Key Issues in Judicial Administration" ( 1997) 6 JJA 138 at 139; see also Law Reform Commission of Victoria, "Access to the Law: The Cost of Litigation", Issues Paper, May 1990, 1.
3
Cost is also the principal cause of complaints against lawyers in Australia. About one-half of the 11,000 complaints made to the New South Wales Legal Services Commissioner against lawyers in that state in 1994-5 was about costs: Office of the Legal Services Commissioner (NSW) Annual Report, 1994-5.

-166-

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