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Submission 10 Reforming Civil Litigation Christopher Enright A submission to the Access to Justice inquiry by the Productivity Commission November 2013 ‘This is what has to be remembered about the law; beneath that cold, harsh, impersonal exterior beats a cold, harsh, impersonal heart.’ David Frost, British Journalist, TV Personality ‘Avoid lawsuits beyond all things; they pervert your conscience, impair your health, and dissipate your property.’ Jean de la Bruyere, French Philosopher & Essayist ‘A lawyer will do anything to win a case, sometimes he will even tell the truth.’ Patrick Murray, American Politician Preface In 1967 I was in the second year of my law degree. I appeared in a moot in constitutional law. Mr Russell Fox QC kindly acted as judge. In my submission I cited to him a legal textbook. There was then a convention that one could cite a textbook only if the author was deceased. Mr Fox therefore put the question to me: ‘Mr Enright, is the author of that text dead’. I replied ‘Not physically Your Honour’. Only as a raw and pretentious ungraduated can one descend to that level of humour and at the same time think he is clever. A decade or more on I ran into Evan Whitton and engaged him enthusiastically on the subject of rugby, which was then actually worth watching. Later we drifted to other matters including his journalistic work on crime for which he was widely praised. In discussing politics and the inertia for reform we coined a phrase that politicians were mindless because too often the whole show was just party hacks responding to party whips. Years on my path crossed the paths of each of these men. As my interest in litigation reform developed I read from the books that these men had written. Russell Fox wrote Justice in the Twenty First Century.1 Evan Whitton has written several forthright books on law and criminal justice including Our Corrupt Legal System.2 As my interest in litigation reform grew I contacted Evan Whitton and renewed our acquaintance. I was quickly captivated by his knowledge, enthusiasm and commitment to reform. I am indebted to both of these men for their example and to Evan Whitton for his unfailing personal support. As the saying goes, those who come afterwards stand of the shoulders of those who have gone before. This book is a spin off from my research into legal method. In that research I tried to devise methods for performing the various tasks with law that are needed in a law school. In other words it was focussing on the academic side of law. My goal was both to systematise and to simplify the academic tasks in working with law. In this book I have focussed on the major tasks with litigation. My main reason for examining litigation in more detail came from my attempts to explain to students the fundamentals of the most common form of litigation, namely litigation that involved a dispute of facts. I soon realised that the model that I devised for this purpose, the model for litigation, had an interesting spin 1. Details of this book are in the Bibliography. 2. Details of this and Evan Whitton’s other books are in the Bibliography. iii iv Preface off – on paper at least, it seemed to provide the basis for a simple yet highly effective system of pleading for cases involving a dispute of facts (as most cases do). This is why the system of pleading proposed in Chapter 11 is squarely based on this model. Most of my proposals are not based on dedicated empirical research. Instead, I have focused on areas that have been regarded as problems and proposed what seem to be to be rational and workable solutions. That said, there is an obvious caution. As the saying goes, all innovation is experimental. Therefore when making change it is necessary to do so in a way that provides some testing of the underlying ideas. The ideal means of testing, which would apply to some of the proposals in this book, is to have judges try them out on a small scale. By appropriate monitoring, analysis and further trial and error it should be possible to determine if the proposals can be made to work. So, I now say thank you – to Russell Fox for his enthusiastic and thoughtful contribution to reform, to my mentor Evan Whitton for his support and encouragement as well as the ideas from his books, to my editor Alana Henderson for her dedication and skill, to my friend Terry O’Donohue for his reading and editing of the manuscript, and to my family for their unfailing love and support. Christopher Enright Newcastle 16 September 2013 Author Christopher Enright is a former law lecturer. He is qualified as a barrister, solicitor and chartered accountant. He is now a legal writer and proprietor of the legal publishing firm Maitland Press. Chris has a Master of Commerce (Management) degree from the University of New England. Chris’s areas of speciality are legal reasoning and legal method. His major publications are the following: Legal Reasoning (2011) Legal Method (2011) Legal Writing (2011) Proof of Facts (2011) Legal Research (forthcoming) A Model for Interpreting Statutes (forthcoming) These books are published by Maitland Press. v Contents Preface.......................................................................................... iii Author ........................................................................................... v Table of Legislation ............................................................ xi Table of Cases ..................................................................... xiii Labels ..................................................................................... xv Summary ............................................................................... xxix Chapter 1 Introduction ...................................................... 1 Introduction ..................................................................................... 1 Origin ............................................................................................... 1 Outline ............................................................................................. 2 Summary ......................................................................................... 2 Parties to Litigation ......................................................................... 2 Labels .............................................................................................. 3 Chapter 2 Law for Litigation ............................................ 5 Introduction ..................................................................................... 5 Action Provisions ............................................................................ 5 Establishment Provisions ................................................................ 6 Jurisdictional Provisions ................................................................. 6 Procedural Provisions ...................................................................... 6 Chapter 3 Barriers to Change .......................................... 9 Introduction ..................................................................................... 9 Legal Skills ...................................................................................... 9 Pleading ........................................................................................... 10 Discovery ......................................................................................... 12 Looking to the Future ...................................................................... 12 Chapter 4 Defining the Goals of Courts ....................... 15 Introduction ..................................................................................... 15 Effectiveness ................................................................................... 15 Efficiency ........................................................................................ 16 Net Benefit ...................................................................................... 16 Chapter 5 Effectiveness of Courts ................................. 17 Introduction ..................................................................................... 17 Avoidance ........................................................................................ 17 Settlement ........................................................................................ 19 vii viii Contents Trial ............................................................................................. 19 Trial: Binding Decision ................................................................... 19 Trial: Resolving Issues of Fact ........................................................ 21 Chapter 6 Efficiency of Courts ......................................... 29 Introduction ..................................................................................... 29 Meaning of Efficiency ..................................................................... 29 Problems with Efficiency ................................................................ 29 Causes of the Problems ................................................................... 32 Solutions to the Problems ................................................................ 33 Chapter 7 Structural Change ............................................ 35 Introduction ..................................................................................... 35 Courts .............................................................................................. 35 Legislation ......................................................................................
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