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Final Report (September 1999) - Law Reform Commission of ...

Final Report (September 1999) - Law Reform Commission of ...

REVIEW OF THE CRIMINAL

REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM 209. An expanded Law Access or similar type of organisation should increase services available to: 1) coordinate volunteer and low fee advice and representation; 2) provide shopfront advice; and 3) refer potential litigants to alternative diversionary bodies or coordinate legal representation. 210. All public libraries should carry current commonly required legal materials and court forms, perhaps accessible through computer terminals. 211. There should be on-going monitoring of information technology developments in the justice system to ensure self-represented litigants have access to legal information and assistance. 212. As soon as adequate information technology support is available, a ‘one stop shop’ information service should be introduced on a trial basis at selected courts. (See, too, Recommendation 417.) 160

19 Unreasonable and Malicious Litigants Unreasonable litigants …delay, wasteful use of resources, hardship to litigants and an erosion of confidence in the administration of justice. Simon Smith, ‘Vexatious Litigants and their Judicial Control’ (1989) Monash University Law Review 15:50 Unreasonable litigants and summary judgment 19.1 This Chapter is concerned with litigants who are considered unreasonable or malicious. First, we consider people who litigate in a manner which may abuse opposing parties and other participants in the justice system whom we refer to as ‘unreasonable’ litigants. These litigants may or may not be legally represented. They often engage in ‘solicitor shopping’ and excessive interlocutory and pre-trial manoeuvres. They may raise spurious claims or defences, flout time-limits to cause delays, pursue unmeritorious applications, refuse reasonable settlement offers, fail to pay orders for costs and launch frivolous appeals. The conduct of unreasonable litigants impinges on the effectiveness and efficiency of the justice system and makes the process of litigation more expensive and protracted for everyone. 19.2 In spite of the courts’ inherent right to control an unreasonable litigant, there is a reluctance to terminate the right to litigate. Judges are conscious of the possibility that a valid claim might be lost due to the inability or failure to articulate it, particularly where self-represented litigants are involved. But there is also a perceived failure by the courts to recognise the emotional and financial impact of unreasonable litigants on other parties. Presently there is no systematic consideration at an early stage of whether a litigant’s claim has any real merit. Innocent parties can be dragged through the courts for a decision made at the end of a long legal road that the claim never had any legal merit in the first place. The vindicated party frequently has no practical opportunity to recoup even court assessed costs, let alone actual out-ofpocket costs. And there is no redress for the loss of time and the aggravation of futile legal proceedings. Our recommendations to increase the availability of summary judgment, in Chapters 14 and 17, should assist in bringing proceedings without reasonable prospect of success to an earlier end. 161

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    1 Touchstones The legal system on t

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    TOUCHSTONES Procedure Expense and d

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    TOUCHSTONES criminal justice system

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    TOUCHSTONES him or her adversely. W

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    2 The Justice System The existing s

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    THE JUSTICE SYSTEM acts even though

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    THE JUSTICE SYSTEM various Acts and

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    3 The Civil System The origins of o

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    THE CIVIL SYSTEM • in which a dis

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    THE CIVIL SYSTEM Pleadings as forma

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    THE CIVIL SYSTEM • settlement and

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    THE CIVIL SYSTEM own costs but also

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    4 The Criminal System The criminal

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    THE CRIMINAL SYSTEM Sessions. If a

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    THE CRIMINAL SYSTEM Jury or judge a

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    5 Measuring the Justice System The

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    MEASURING THE JUSTICE SYSTEM civil

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    MEASURING THE JUSTICE SYSTEM increa

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    MEASURING THE JUSTICE SYSTEM • th

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    6 The Adversarial System of Civil L

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    THE ADVERSARIAL SYSTEM OF CIVIL LIT

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    THE ADVERSARIAL SYSTEM OF CIVIL LIT

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    7 The Adversarial System of Crimina

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    8 Civil System — Overview Alterna

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    CIVIL SYSTEM — OVERVIEW 8.7 The S

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    9 Means of Commencing Civil Proceed

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    MEANS OF COMMENCING CIVIL PROCEEDIN

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    10 Pleadings What are pleadings? Ar

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    PLEADINGS Accordingly, we recommend

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    PLEADINGS What should case statemen

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    PLEADINGS highly critical of the cu

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    PLEADINGS Amending case statements

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    PLEADINGS (1) the documentation for

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    11 Alternative Dispute Resolution W

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    ALTERNATIVE DISPUTE RESOLUTION or w

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    ALTERNATIVE DISPUTE RESOLUTION Acce

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    ALTERNATIVE DISPUTE RESOLUTION to b

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    ALTERNATIVE DISPUTE RESOLUTION It w

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    ALTERNATIVE DISPUTE RESOLUTION 63.

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    ALTERNATIVE DISPUTE RESOLUTION to m

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    12 Case Management Case management

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    CASE MANAGEMENT 78. A listing confe

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    CASE MANAGEMENT 81. Any case dismis

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    13 Disclosure What is discovery? Un

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    DISCLOSURE directly relevant to a m

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    DISCLOSURE 89. When it is clear tha

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  • Page 135 and 136: 17 Local Courts The Local Court Equ
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  • Page 171 and 172: 21 The Limits of Examination and Cr
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  • Page 181 and 182: 22 Expert Evidence Expert evidence
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    ALTERNATIVE CRIMINAL CHARGE RESOLUT

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    26 Joinder Fair trials and the issu

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    JOINDER 271. The existing principle

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    JOINDER 273. The existing principle

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    27 Criminal Process in the Court of

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    28 Preliminary Hearings What are pr

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    PRELIMINARY HEARINGS brief at trial

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    PRELIMINARY HEARINGS to be tendered

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    PRELIMINARY HEARINGS Proposal G Abo

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    29 Criminal Process in the Higher C

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    30 Trial by Judge Alone Trial by ju

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    TRIAL BY JUDGE ALONE according to c

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    TRIAL BY JUDGE ALONE 333. Except wh

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    TRIAL BY JUDGE ALONE a successful a

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    31 Criminal System — Costs Costs

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    CRIMINAL SYSTEM — COSTS • where

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    CRIMINAL SYSTEM — COSTS reasonabl

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    32 Appeals The system of appeals Ap

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    APPEALS of a decision can be appeal

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    APPEALS • appeals from a judge or

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    APPEALS • questions of relevance

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    APPEALS 355. Order 65B rule 3 (3)b

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    APPEALS Short form judgments 32.24N

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    APPEALS requirements in civil matte

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    APPEALS no appeal against an acquit

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    APPEALS to serve that purpose. Ther

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    33 Boards and Tribunals Boards and

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    BOARDS AND TRIBUNALS consistent pro

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    BOARDS AND TRIBUNALS 374. If all bo

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    BOARDS AND TRIBUNALS 383. Original

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    BOARDS AND TRIBUNALS 391. Where the

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    34 The Court Environment Architectu

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    THE COURT ENVIRONMENT there walls,

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    THE COURT ENVIRONMENT them. Court s

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    THE COURT ENVIRONMENT of courts adj

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    THE COURT ENVIRONMENT 412. Future c

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    THE COURT ENVIRONMENT Courts’. As

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    THE COURT ENVIRONMENT Self-represen

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    THE COURT ENVIRONMENT vulnerable wi

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    35 Technology and Justice The impac

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    TECHNOLOGY AND JUSTICE Uniformity i

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    TECHNOLOGY AND JUSTICE Authenticity

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    TECHNOLOGY AND JUSTICE 35.17 Recent

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    TECHNOLOGY AND JUSTICE 35.23 In the

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    36 The Legal Profession The legal p

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    THE LEGAL PROFESSION role of the le

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    THE LEGAL PROFESSION • While ther

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    THE LEGAL PROFESSION through to the

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    37 Private Civil Courts The adversa

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    PRIVATE CIVIL COURTS 446. Private c

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    Appendix 1 Acknowledgments The memb

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    ACKNOWLEDGEMENTS Charles Brookes Do

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    ACKNOWLEDGEMENTS Lizzie Hill Gisell

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    ACKNOWLEDGEMENTS Hon Judge MDF O’

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    ACKNOWLEDGEMENTS Anna Wasylkewycz M

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    GLOSSARY Applicant Application to s

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    GLOSSARY Disbursements Discovery Mo

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    GLOSSARY 'Interest-based' mediation

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    GLOSSARY Plaint Plaintiff Practisin

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    GLOSSARY and a timetable for the ca

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    Bibliography of In-text References

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    BIBLIOGRAPHY of Court Rules and Pro

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    BIBLIOGRAPHY Family Law Act 1975 (C

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    List of Recommendations The justice

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    RECOMMENDATIONS 14. The Criminal Co

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    RECOMMENDATIONS (3) the practitione

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    RECOMMENDATIONS (2) if a practition

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    RECOMMENDATIONS 54. The current pra

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    RECOMMENDATIONS 74. The neutral con

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    RECOMMENDATIONS specified in the li

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    RECOMMENDATIONS 106. Either party s

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    RECOMMENDATIONS 124. Court staff sh

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    RECOMMENDATIONS 141. Limited contin

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    RECOMMENDATIONS 160. All Local Cour

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    RECOMMENDATIONS 174. Unless good ca

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    RECOMMENDATIONS practice direction

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    RECOMMENDATIONS 203. The Local Cour

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    RECOMMENDATIONS (3) The Act include

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    RECOMMENDATIONS 226. The use and ex

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    RECOMMENDATIONS 246. Where there ar

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    RECOMMENDATIONS 258. If practicable

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    RECOMMENDATIONS can be overcome by

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    RECOMMENDATIONS (3) enabling senten

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    RECOMMENDATIONS (3) any other agree

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    RECOMMENDATIONS at the close of the

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    RECOMMENDATIONS 340. When a ruling

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    RECOMMENDATIONS be made before the

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    RECOMMENDATIONS 376. The WACAT shou

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    RECOMMENDATIONS 393. Full-time and

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    RECOMMENDATIONS seek feedback from

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    RECOMMENDATIONS 436. All technologi

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