REVIEW OF THE CRIMINAL

REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM recommend will alleviate part of the frustration expressed by some who made submissions asking us to abandon the adversarial system. The adversarial system in practice 6.3 In practice the adversarial system functions in ways which are not always consistent with the theory. For example, although the English, American and Australian justice systems are all adversarial there exist significant procedural and professional organisational differences. In the same way, the inquisitorial systems of France and Germany vary. 6.4 Even within adversarial jurisdictions there are differences in how the adversarial model operates. Historically the judiciary played a far more active role in the courts of equity than in common law courts. Judicial powers may have existed but been under-utilised, or utilised by some courts more than others. Tribunals rather than courts now handle a significant number of cases. Tribunals generally rely on inquisitorial rather than adversarial procedures. (See Chapter 33.) There also is increasing use in the courts of pre-litigation ADR. (See Chapter 11.) The impact of the growing number of self-represented litigants is also having a significant impact on the adversarial system (discussed in Chapter 18). The role of lawyers The objects of the civil justice system 6.5 The partisan ethic of lawyers is one characteristic of the adversarial system which is fairly constant. Subject to some fairly unobtrusive duties to the court, the civil lawyer’s goal has always been to win the case. (The legal profession is discussed in Chapter 36.) This partisan ethic continues to dominate perceptions of the adversarial system at work in the civil justice system of Western Australia. 6.6 In his final report on Access to Justice (1996), Lord Woolf recommended that the civil justice system should include a single foundational principle, a grundnorm, that courts deal with cases justly. The Civil Procedure Rules 1999 (UK), recently enacted in the United Kingdom to implement Lord Woolf’s recommended reforms, provide that the overriding objective of case management should be to enable the court to deal with cases justly. A number of specific considerations are stipulated, including ensuring that the parties are on an equal footing, saving expense and dealing with the cases in ways which are proportionate to their value, importance and complexity and the financial position of the parties. As indicated in Chapter 1, the ALRC (1999h) highlighted the difficulties associated with the practical implementation of Lord Woolf’s recommendations. These reforms have been criticised for permitting a broad and largely unguided discretion in the judiciary and for lacking practical means for ascertaining, for example, the importance of a case or the financial position of the parties. The ALRC pointed to the potential inconsistency between these principles and a lawyer’s obligation to be a partisan advocate for the client, and concludes that it does not support the requirement of ‘proportionate’ litigation practice. 46

THE ADVERSARIAL SYSTEM OF CIVIL LITIGATION Should the civil justice system have objectives? 6.7 Other reform reports suggest that there should be a range of objectives, and rather than implementing these objectives as practice rules, recommend that they be used as a guide to the interpretation of legislation and rules in order to provide standards against which lawyers’ and others’ conduct can be assessed. In our view, on that limited basis, the objectives of the civil justice system could usefully be identified and incorporated into civil justice legislation. Any objectives should encompass: • the fair application or development of law by impartial decision-makers; • active management of cases to ensure proportionality and timeliness; • proportionality between the complexity and value (monetary and nonmonetary) of a dispute and the time and procedure involved; and • an efficient pace for cases, because justice delayed is justice denied. In particular, we believe that a ‘proportionality principle’ can provide a helpful guide for case managers to assess, in consultation with the parties, the extent and expense of interlocutory procedure appropriate to the claim. It also can be a useful guide to lawyers to undertake work proportionate to the claim, particularly in light of the legal defence which we propose should be available to lawyers who act to promote the civil justice system objectives, at Recommendation 439. 5. The civil justice system should be managed in order to be expeditious, proportionate, and both procedurally and substantively just. 6. Legislation should be enacted applying the objects clause (at Recommendation 5) to all legislation impacting upon civil justice, including Rules of Court, so that the principles on which the civil justice system rests are clearly set out. 6.8 If our Recommendations 5 and 6 are not accepted, the principles currently in Order 1 rules 4A–4B of the Rules of the Supreme Court 1971 (WA) may serve as an appropriate basis for the incorporation of an objects clause into civil justice legislation. These principles include the elimination of delay, the fair and just determination of issues, the promotion of just determination of litigation, efficiency and affordability. Information technology 6.9 Information technology offers the prospect of continuing efficiency gains in Australian courts that can free resources for improving other services and communicating with the public. Information technology should be adopted in so far as it is compatible with the objects of the civil justice system identified at Recommendation 5. However, heavy or exclusive reliance upon new 47