Final Report (September 1999) - Law Reform Commission of ...
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
CASE MANAGEMENT 78. A listing confe
CASE MANAGEMENT 81. Any case dismis
13 Disclosure What is discovery? Un
DISCLOSURE directly relevant to a m
DISCLOSURE 89. When it is clear tha
14 Summary Judgment, Interlocutory
SUMMARY JUDGMENT, INTERLOCUTORY INJ
SUMMARY JUDGMENT, INTERLOCUTORY INJ
SUMMARY JUDGMENT, INTERLOCUTORY INJ
15 Written and Oral Submissions Wri
WRITTEN AND ORAL SUBMISSIONS should
16 Civil System — Costs Civil cos
CIVIL SYSTEM — COSTS 116. Order 8
CIVIL SYSTEM — COSTS quantum invo
CIVIL SYSTEM — COSTS 123. The req
CIVIL SYSTEM — COSTS 128. An Orde
CIVIL SYSTEM — COSTS Assessment o
CIVIL SYSTEM — COSTS Lump sum cos
CIVIL SYSTEM — COSTS Costs to det
CIVIL SYSTEM — COSTS the end of t
17 Local Courts The Local Court Equ
LOCAL COURTS Commencing proceedings
LOCAL COURTS 168. If a party verifi
LOCAL COURTS 171. Notice of Intenti
LOCAL COURTS 178. As soon as practi
LOCAL COURTS Summary judgment in th
LOCAL COURTS Witnesses 17.26 We are
18 Self-Represented Litigants Self-
SELF-REPRESENTED LITIGANTS we are c
SELF-REPRESENTED LITIGANTS make cou
SELF-REPRESENTED LITIGANTS how to i
19 Unreasonable and Malicious Litig
UNREASONABLE AND MALICIOUS LITIGANT
UNREASONABLE AND MALICIOUS LITIGANT
20 Evidence Why is there a law of e
EVIDENCE • it contains a number o
EVIDENCE evidence is minimised at t
EVIDENCE in chief. The exchange of
21 The Limits of Examination and Cr
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
22 Expert Evidence Expert evidence
EXPERT EVIDENCE exchange of expert
EXPERT EVIDENCE opposing party subp
EXPERT EVIDENCE Concerns over not r
23 Criminal System — Overview The
CRIMINAL SYSTEM — OVERVIEW basis
24 The ‘Right to Silence’ What
THE ‘RIGHT TO SILENCE’ speaking
THE ‘RIGHT TO SILENCE’ The defe
THE ‘RIGHT TO SILENCE’ ii. iii.
25 Alternative Criminal Charge Reso
ALTERNATIVE CRIMINAL CHARGE RESOLUT
ALTERNATIVE CRIMINAL CHARGE RESOLUT
ALTERNATIVE CRIMINAL CHARGE RESOLUT
26 Joinder Fair trials and the issu
JOINDER 271. The existing principle
JOINDER 273. The existing principle
27 Criminal Process in the Court of
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
28 Preliminary Hearings What are pr
PRELIMINARY HEARINGS brief at trial
PRELIMINARY HEARINGS to be tendered
PRELIMINARY HEARINGS Proposal G Abo
29 Criminal Process in the Higher C
CRIMINAL PROCESS IN THE HIGHER COUR
CRIMINAL PROCESS IN THE HIGHER COUR
CRIMINAL PROCESS IN THE HIGHER COUR
CRIMINAL PROCESS IN THE HIGHER COUR
30 Trial by Judge Alone Trial by ju
TRIAL BY JUDGE ALONE according to c
TRIAL BY JUDGE ALONE 333. Except wh
TRIAL BY JUDGE ALONE a successful a
31 Criminal System — Costs Costs
CRIMINAL SYSTEM — COSTS • where
CRIMINAL SYSTEM — COSTS reasonabl
32 Appeals The system of appeals Ap
APPEALS of a decision can be appeal
APPEALS • appeals from a judge or
APPEALS • questions of relevance
APPEALS 355. Order 65B rule 3 (3)b
APPEALS Short form judgments 32.24N
APPEALS requirements in civil matte
APPEALS no appeal against an acquit
APPEALS to serve that purpose. Ther
33 Boards and Tribunals Boards and
BOARDS AND TRIBUNALS consistent pro
BOARDS AND TRIBUNALS 374. If all bo
BOARDS AND TRIBUNALS 383. Original
BOARDS AND TRIBUNALS 391. Where the
34 The Court Environment Architectu
THE COURT ENVIRONMENT there walls,
THE COURT ENVIRONMENT them. Court s
THE COURT ENVIRONMENT of courts adj
THE COURT ENVIRONMENT 412. Future c
THE COURT ENVIRONMENT Courts’. As
THE COURT ENVIRONMENT Self-represen
THE COURT ENVIRONMENT vulnerable wi
35 Technology and Justice The impac
TECHNOLOGY AND JUSTICE Uniformity i
TECHNOLOGY AND JUSTICE Authenticity
TECHNOLOGY AND JUSTICE 35.17 Recent
TECHNOLOGY AND JUSTICE 35.23 In the
36 The Legal Profession The legal p
THE LEGAL PROFESSION role of the le
THE LEGAL PROFESSION • While ther
THE LEGAL PROFESSION through to the
37 Private Civil Courts The adversa
PRIVATE CIVIL COURTS 446. Private c
Appendix 1 Acknowledgments The memb
ACKNOWLEDGEMENTS Charles Brookes Do
ACKNOWLEDGEMENTS Lizzie Hill Gisell
ACKNOWLEDGEMENTS Hon Judge MDF O’
ACKNOWLEDGEMENTS Anna Wasylkewycz M
GLOSSARY Applicant Application to s
GLOSSARY Disbursements Discovery Mo
GLOSSARY 'Interest-based' mediation
GLOSSARY Plaint Plaintiff Practisin
GLOSSARY and a timetable for the ca
REVIEW OF THE CRIMINAL AND CIVIL JU
Bibliography of In-text References
BIBLIOGRAPHY of Court Rules and Pro
BIBLIOGRAPHY Family Law Act 1975 (C
REVIEW OF THE CRIMINAL AND CIVIL JU
List of Recommendations The justice
RECOMMENDATIONS 14. The Criminal Co
RECOMMENDATIONS (3) the practitione
RECOMMENDATIONS (2) if a practition
RECOMMENDATIONS 54. The current pra
RECOMMENDATIONS 74. The neutral con
RECOMMENDATIONS specified in the li
RECOMMENDATIONS 106. Either party s
RECOMMENDATIONS 124. Court staff sh
RECOMMENDATIONS 141. Limited contin
RECOMMENDATIONS 160. All Local Cour
RECOMMENDATIONS 174. Unless good ca
RECOMMENDATIONS practice direction
RECOMMENDATIONS 203. The Local Cour
RECOMMENDATIONS (3) The Act include
RECOMMENDATIONS 226. The use and ex
RECOMMENDATIONS 246. Where there ar
RECOMMENDATIONS 258. If practicable
RECOMMENDATIONS can be overcome by
RECOMMENDATIONS (3) enabling senten
RECOMMENDATIONS (3) any other agree
RECOMMENDATIONS at the close of the
RECOMMENDATIONS 340. When a ruling
RECOMMENDATIONS be made before the
RECOMMENDATIONS 376. The WACAT shou
RECOMMENDATIONS 393. Full-time and
RECOMMENDATIONS seek feedback from
RECOMMENDATIONS 436. All technologi