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1. Managing justice: continuity and change in the federal civil justice system

1. Managing justice: continuity and change in the federal civil justice system

The terms of reference

1.1 On 29 November 1995, the then Attorney-General, the Hon Michael Lavarch MP, asked the Commission to review the adversarial system of conducting civil, administrative review and family law proceedings before courts and tribunals exercising federal jurisdiction. The terms of reference [1] asked the Commission to have regard to

and referred to the Commission for inquiry and report, the following

(a) the advantages and disadvantages of the present adversarial system of conducting civil, administrative review and family law proceedings before courts and tribunals exercising federal jurisdiction

(b) whether any changes should be made to the practices and procedures used in those proceedings and

(c) any related matter.

1.2 The terms required the Commission to consider, among other things, the following specific matters

1.3 On 2 September 1997, the Attorney-General, the Hon Daryl Williams AM QC MP, amended these terms of the reference [3] to give more specific focus to the inquiry. The amended terms [4] required the Commission to exclude from its inquiry issues relating to

1.4 The amended terms of reference also excluded consideration of changes that would or might require amendment of the Constitution, and specifically asked the Commission to focus its attention on issues relating to the causes of excessive costs and delay (including economic factors), case management, alternative dispute resolution, pleadings and other court processes, expert evidence and expert witnesses, and unrepresented litigants.

Defining the scope of the inquiry

1.5 The establishment of the Commonwealth in 1901 created a federal jurisdiction. [5] Federal jurisdiction is a national jurisdiction within the Australian legal system which operates directly or indirectly, or otherwise has influence, in almost all areas of Australian law. [6] Under the Constitution, federal judicial power was vested in the High Court of Australia and in such other federal courts as the Parliament might create under chapter III, as well as in State courts specifically vested with federal jurisdiction.

1.6 It was not until the 1970s, with the establishment of the Federal Court of Australia (Federal Court), the Family Court of Australia (Family Court) and the Administrative Review Tribunal (AAT), that a significant federal judicial system developed below the High Court. Until that time, for pragmatic reasons as well as political sensibilities about the relative roles of the Commonwealth and the States, heavy reliance was placed upon State courts. It is still the case that federal jurisdiction is shared and exercised by the various federal and State courts -- although as the High Court recently ruled, State courts may be vested with federal jurisdiction, but the Constitution does not permit federal courts to be vested with State jurisdiction. [7]

1.7 In effect, then, the terms of reference potentially directed the Commission to a vast inquiry into access, practice and procedure across all of the federal and State courts. This was a major project, having regard to the breadth and complexity of the task and the need to conduct empirical research to support evaluation and reform of the federal justice system. For these reasons, the Commission focussed its inquiry on the workings of the Federal Court, [8] the Family Court, [9] and those review tribunals set for amalgamation in the proposed new federal Administrative Review Tribunal (ART): namely the AAT, [10] the Migration Review Tribunal (MRT, which incorporates the former Immigration Review Tribunal), the Refugee Review Tribunal (RRT) and the Social Security Appeals Tribunal (SSAT).

1.8 The report also refers, where appropriate, to State courts exercising federal jurisdiction in relation to family law proceedings. It is important to note, however, that data and comments in this paper concerning `the Family Court' refer to the Family Court of Australia, not to the separately constituted Family Court of Western Australia, or to local courts exercising federal family jurisdiction, unless explicitly stated. The Commission has not reviewed the workings of the Australian Industrial Relations Commission (AIRC) or the National Native Title Tribunal (NNTT) and deals with those agencies only in relation to the way in which they may interact with the Federal Court's handling of industrial relations matters and native title claims.

1.9 Notwithstanding some of these choices and limitations, the Commission's inquiry still encompasses a very wide range of cases and litigant types. Parties in federal civil proceedings are diverse, including individuals of varied means and backgrounds, and with different expectations of the justice system: Australian citizens and intending residents; big and small businesses; interest groups; whole classes of persons involved as parties to representative actions; government; regulators; and the variety of family members concerned in family disputes. [11]

1.10 In terms of case types, the Commission's inquiry covered everything from high volume, routinised processing of cases with relatively simple issues of fact and law in dispute, to lengthy and highly sophisticated disputes over intellectual property, trade practices or native title, to representative actions involving potentially thousands of applicants within a class, and requiring procedures which must be crafted and customised for each particular case. Likewise, the inquiry ranged across matters in which litigants often have to (or sometimes choose to) represent themselves, and those in which litigants (typically government or corporate) are represented by the leading law firms and retain teams of experienced counsel.

1.11 This diversity has particular force where, as in this inquiry, the reform agenda is explicitly directed to issues of cost, accessibility and efficiency.

1.12 In this report, the Commission uses the term `federal civil justice system' to refer to the full array of judicial, administrative review and community and court based alternative dispute resolution (ADR) schemes found in federal civil jurisdiction. This extends, for example, to the use of ADR by industry ombudsmen to deal with complaints in areas under federal regulation, such as banking and telecommunications. [12]

1.13 This chapter discusses the philosophical and methodological approaches the Commission has taken to this inquiry into reform of the federal civil justice system. The chapter develops some themes considered in the Discussion Paper 62 which preceded this report.

`Managing justice'

1.14 The title of this final report, Managing justice, is consciously intended to have a double meaning. One of the major thrusts of this report is that our civil justice system works best when judicial officers take an active role in managing proceedings from an early stage. Although the description and analysis of case management practices in the various federal courts and tribunals forms a significant portion of this report, the Commission does not place its faith entirely in such management. As is evident from the substantial treatment of legal education, judicial education, practice standards and legal assistance, the Commission recognises the need to engage the legal profession, the academy, government, and others in the task of reshaping legal practice and professional culture in aid of meaningful reform of the civil justice system. Managing justice is an ongoing process. There is no simple, once and for all solution to the problems of civil justice systems, no single best practice for managing or resolving disputes.

1.15 As the discussion below will indicate, the Commission does not underestimate the difficulties involved, nor the international history of indifferent results in this area. In this light, the word managing is also used in the aspirational sense, intending to convey the Commission's hope that this report will assist in managing to achieve an Australian federal civil justice system of the highest order.

The Commission's consultations

1.16 Over the several years of this inquiry, the Commission has consulted very widely with judges and tribunal members, court and tribunal administrators, the legal profession, ADR practitioners, litigants and others involved in or affected by the legal system or ADR processes. To ensure that we obtained a wide range of views, information, experience and expertise, the Commission used a number of separate consultative and advisory processes.

Advisory and working groups

1.17 The Commission arranged for an Advisory Group comprising eminent judges, lawyers, and others to assist on this reference. A list of the Advisory Group members appears at page 47. The Commission was also assisted by a Consultative Group, comprising the Chief Justices of the Federal Court, Family Court and the President of the Administrative Appeals Tribunal. A list of the Consultative Group members appears at page 47. Both these groups assisted the Commission to focus its review and advised on policy issues and proposals for change. Mr Julian Disney, a member of the Advisory Group, also acted as a special consultant and adviser in the preparation of DP 62.

1.18 The Commission also established a number of expert working groups to provide detailed advice and assistance on Federal Court, Family Court and federal tribunal proceedings and processes, on costs issues, technology, ADR processes, and on training and education. A list of the working groups and their members appears at page 47. [13]

1.19 Members of the advisory and working groups were asked to read and comment upon draft chapters, including reports on the Commission's empirical work, and gave generously of their time. Some members had to travel extensively to attend meetings. The Advisory Group considered and commented upon a penultimate version of the set of final recommendations contained in this report, and was influential in the shape of these final recommendations. The Commission derived enormous assistance from the advisory and working groups and extends our deep appreciation to the members for their time, patience, and generosity.

Conferences

1.20 The Commission co-sponsored two conferences associated with this inquiry. One conference, entitled Beyond the adversarial system: Changing roles and skills for courts, tribunals and practitioners, considered common law and civil code processes in relation to education and training. [14] The other, entitled The management of disputes involving the Commonwealth. Is litigation always the answer? concerned dispute avoidance, management and litigation involving Commonwealth departments and agencies. [15] The Commission also co-sponsored an education and training workshop. [16] Commissioners and staff participated in a number of conferences organised by other institutions, presenting research and analysis developed as part of this inquiry.

1.21 The Commission will be hosting a major conference entitled Managing Justice ... the way ahead for civil disputes, on 18-20 May 2000, in Sydney, representing the culmination of its work on this inquiry. The conference will bring together leading international and Australian figures in areas of civil justice practice, research and reform, and court and tribunal management. It is expected that the conference proceedings will be published commercially, adding further to the literature in this field.

Consultations and submissions

1.22 The Commission consulted with many organisations and individuals with particular interest or expertise in different areas of federal civil litigation and review and received some 400 formal submissions. A large number of meetings were held with groups of individual judges, tribunal members, court and tribunal administrators, practitioners and others. Following the publication of DP 62, the Commission held a series of consultations in all capital cities except Hobart, meeting with judges, tribunal members, court and tribunal staff, law societies and bar associations (and their specialist committees), legal academics, government lawyers, legal practitioners, legal aid commissions, community legal centres, ADR practitioners, court support networks, government departments and agencies involved in litigation and review, expert witnesses and others. Such consultations were particularly helpful in obtaining the views and experiences of those people involved in court and tribunal proceedings.

1.23 Footnote references are made throughout this report to particular consultations. Given the very extensive nature of this process, the invidious nature of selecting out the `most important' events, and the practical limitations of printing and binding a report of this size, the Commission has not appended a full or select list of consultations. A complete list may be found at the Commission's homepage: <http://www.alrc.gov.au>.

Issues, background and discussion papers

1.24 During the inquiry the Commission released a number of consultative and background papers. These papers formed the focus of the Commission's consultation with interested persons and organisations. The issues papers released were

1.25 A series of background information papers was also prepared as part of the Commission's initial research and consultation. The papers covered

1.26 The major publication in this reference preceding this report was the Commission's Discussion Paper 62, Review of the federal civil justice system, published in August 1999. [29]

The importance of empirical research

1.27 At the beginning of the reference, the Commission recognised the need for, and initiated, empirical research on the working of the federal civil justice system. This resulted in the most extensive and comprehensive empirical research project ever conducted in relation to the Australian federal civil justice system. Information was collected from courts, federal review tribunals, litigants, lawyers and legal professional bodies concerning litigants, case characteristics, case types, case resolution, registry practices, the costs of litigation, charging practices and educational initiatives. The Commission engaged consultants, Tania Matruglio and Gillian McAllister, to collect this data and conduct evaluative research from Federal Court and Family Court case files and from surveys of samples of solicitors and unrepresented litigants associated with sampled cases finalised in these jurisdictions. The Commission undertook such case file research and surveys in respect of the AAT [30] and also the courts, federal review tribunals and legal professional bodies concerning their educational initiatives.

1.28 The results of this work were reported in a series of publications prepared by the Commission and our research consultants, and inform the discussion throughout this final report. The results of a separate survey on educational initiatives were reported on by the Commission in 1997. [31] Tania Matruglio and Gillian McAllister prepared background information on the data and technology needs of courts and tribunals which was incorporated in two research papers in 1998. [32] Their main work for the Commission involved the preparation of empirical reports on the Federal Court and the Family Court, published in 1999. [33] Similar empirical reports on the AAT were prepared by the Commission. [34] Further analysis of the Commission's Family Court data was conducted by the Justice Research Centre. [35]

1.29 Dr Tim Fry of Monash University prepared a further report in 1999, involving a modelling exercise using the Commission's costs data to create regression equations applying to the Federal Court and Family Court. [36]

1.30 Details on the methodology of the surveys, the sampling techniques and data collection instruments used are contained in the empirical reports which are published in electronic form on the Commission's homepage: <http://www.alrc.gov.au>.

1.31 Briefly, the samples for the case file surveys were as follows.

1.32 Information was collected from case files or from court or tribunal computerised case management systems (the case file information) and from responses to self-administered questionnaires sent to party representatives or to unrepresented parties (the questionnaire information).

1.33 The case file information provided the Commission with comprehensive data relating to the types of parties and cases, how and at what stage cases were resolved, the duration to resolution, the outcomes achieved, the number of represented parties, the effect representation had on case processing and case outcomes, and differences between registries.

1.34 The questionnaire information included details about the cost of proceedings, how these costs were funded and the charging arrangements associated with them. Information was also solicited about other issues including the use of representation or other assistance, the dispute resolution processes used, the factors working for and against settlement, and prehearing case management by the relevant court or tribunal.

1.35 This research and analysis has been essential to the Commission's understanding of the effect of case management practices in federal courts and tribunals and, along with the extensive consultations and submissions received by the Commission, forms the basis for the recommendations in this paper. The Commission expresses special thanks to all of the research consultants for their contributions, which set this inquiry into the civil justice system apart from so many others.

1.36 The Commission strongly believes that all successful systemic reform must be grounded in empirical research. Deprecation of the legal system and failed efforts at reform often proceed on the basis of anecdote and assumption. This can include both untested and unfounded criticism of some current practices, procedures and institutions, as well as uncritical acceptance of alternatives.

1.37 One example may be the 1970s push for tribunals as a quicker, cheaper alternative to courts. In fact, the Commission's research shows that government expenditure on tribunals is now little different from spending on courts. The case survey research reveals that private costs for certain tribunal matters were little different from the costs of judicial review matters in the Federal Court and that the median duration for finalising cases in the AAT was longer than for cases in the Federal Court and Family Court. [37] Elsewhere in this report the Commission suggests that moves towards greater use of ADR processes also need to be subjected to empirical study, [38] to ensure that in the drive to avoid litigation we are not continuing to assume that all alternatives to litigation are necessarily cheaper and faster processes.

1.38 In proposing a `single-minded' effort at reducing cost and delay, Garry Watson has suggested that the lesson to be learned from previous unsuccessful attempts at civil justice reform is the critical need for allied empirical research.

The process has two components: rigorous analysis designed to select only reforms that will be likely to improve the cost and delay picture; and the introduction of systems to measure the actual impact of reform. To date, we have typically undertaken neither. As a result, we implement some reforms that have a little or no likelihood of reducing costs and delay. When it is all over, we have a poor, or at best an anecdotal and impressionistic, understanding of what we achieved ... My plea ... is to measure the impact of reforms as best we can and to introduce no reforms without an impact measurement plan. [39]

1.39 Professor Marc Galanter has observed that in the United States -- which is generally thought to be well in advance of most countries in terms of data collection and funding empirical research -- the collective database on the justice system is improving but is often `thin and spotty'; [40] lawyers `are dogged in challenging and dissecting evidence' but less effective in analysing large social aggregates or employing `the most severe critical standards'; [41] legal scholarship has `remained diffident toward the investigative, empirical side of the legal realist legacy'; [42] and legal institutions and governments have invested little in litigation research and development. [43]

1.40 The same criticisms certainly may be made of the present position in Australia, although some steps already have been made to remedy this. [44] In 1994, the Access to Justice Advisory Committee (AJAC) proposed that a national court statistics collection program be undertaken `for the identification of best practice court procedures'. [45] The Steering Committee for the Review of Commonwealth/State Service Provision, operating under the auspices of the Council of Australian Governments (COAG), now collects and presents performance data on court services and is seeking to develop its civil justice data collection and analysis. [46] The Commission endorses such initiatives, as providing an essential tool for understanding and improving the justice system.

1.41 Federal courts and tribunals are likewise improving their own data collection, evaluation and performance monitoring. The Commission supports the view that such a performance monitoring system should be

1.42 Some courts and tribunals have sought to adapt the United States Trial Court Performance Standards which cover five broad areas: access to justice; expedition and timeliness; equality, fairness and integrity; independence and accountability; public trust and confidence.

1.43 There traditionally has been limited academic interest and activity in empirical research into the justice system in Australia. [48] However, the dominant focus on black letter, doctrinal research has begun to shift towards more theoretical and applied work in recent years, and some excellent scholars are emerging whose work is strongly empirical and reform-oriented in character. In the following chapter, the Commission looks at legal education, and proposes (among other things) that matters of process and professionalism feature more prominently in law school teaching -- which, if taken up, inevitably would have an effect on research priorities.

1.44 Empirical research into litigation, administrative review and ADR processes should begin to result in the accumulation of comparative data sets, which itself can provide an impetus for the further development of applied academic, postgraduate, postdoctoral and other research in this area. Additional funding and concerted research planning and effort are needed, however.

1.45 One possible avenue for obtaining funding for such research is through the Strategic Partnerships with Industry -- Research and Training (SPIRT) grant scheme. [49] The SPIRT scheme supports collaborative research projects between higher education researchers and industry partners on topics of direct relevance to industry. Industry partners represent a broad spectrum of enterprises from business and industry, and include public sector bodies [50] such as courts. [51]

1.46 The Commission sees considerable benefit in universities, courts, tribunals, law firms, legal professional associations, law reform agencies, research centres, legal interest groups and others collaborating in various applied research projects relevant to the operation and working of the federal civil justice system. The development of an Australian Academy of Law, proposed in the following chapter, [52] would assist in coordinating and encouraging applications for SPIRT grants for civil justice research, as well as in facilitating rigorous standards of peer review for such applications.

Recommendation 1. In view of the need for civil justice policy making and reform to be informed by empirical research, stakeholders such as courts, tribunals, law firms, legal professional associations, law reform agencies, universities, research centres, and legal and consumer interest groups should seek opportunities for undertaking collaborative research, including through the Strategic Partnerships with Industry -- Research and Training (SPIRT) grants scheme.

A system in crisis?

1.47 Calls for radical change to our legal system frequently derive from a sense that the system is in crisis. At the inception of this inquiry such calls were common. Former Chief Justice, Sir Gerard Brennan, said in 1996 that

[t]he courts are overburdened, litigation is financially beyond the reach of practically everybody but the affluent, the corporate or the legally aided litigant; governments are anxious to restrict expenditure on legal aid and the administration of justice. It is not an overstatement to say that the system of administering justice is in crisis. [53]

1.48 Insofar as the Commission's terms of reference were directed to help `fix' a crisis, the Commission's investigation does not support the crisis theory -- at least not in relation to the federal courts and tribunals. For example, the Commission found a rise in case loads in some areas of federal jurisdiction, but no `litigation explosion'; [54] small numbers of cases taking two to three years to finality, evident room for improvement in case duration, but no systemic, intractable delay in case processing or resolution; [55] and a range of very high and medium legal costs and much litigation assistance from lawyers and government. The adage that the justice system is open only to the very rich and very poor was not confirmed by our empirical survey. [56]

1.49 The Commission found a range of litigants utilising federal courts and tribunals, although not surprisingly lower income litigants tend to be found mainly in circumstances in which they may have little or no choice but to become involved in court or tribunal processes. For example, a study of family law litigants by the Justice Research Centre found a median annual income of only $25 000-$28 000. [57] Apart from the limited availability of legal aid, speculative and delayed fee charging arrangements also have assisted to make some federal civil processes accessible to people of varied means, particularly where there is the potential of a monetary award or settlement from which expenses can be recouped. [58] Private and publicly funded informal dispute resolution options, such as industry ombudsman's offices, also assist in broadening access to the federal civil justice system.

1.50 It must be stressed that this inquiry is concerned only with the federal civil justice system. Absent from the Commission's consideration are a number of vexed areas that are primarily the domain of State and Territory courts and which cause significant controversy and disquiet, including the bulk of personal injury matters and criminal law. For example, the Law Reform Commission of Western Australia noted that public dissatisfaction with the justice system often focusses on issues of sentencing and the treatment of victims of crime. [59]

1.51 In DP 62, the Commission enumerated many problems with the existing system, including

1.52 These are not matters for complacency, and the bulk of this report is devoted to discussion, analysis and recommendations aimed at resolving or ameliorating these problems.

1.53 The Commission sees these problems as difficult ones, but susceptible to repair, and found that much of the system works reasonably well -- indeed, the Commission's empirical research indicated that much of the system performs better than many of the institutional participants believe and the anecdotal `common wisdom' suggests.

1.54 Justice Ron Sackville, who chaired the federal government's Access to Justice Advisory Committee, has noted, in an analysis with which the Commission strongly agrees, that the perception that problems are so deep seated and intractable that urgent and far reaching remedies are required carries with it certain `dangers', including that

1.55 The Law Council agreed with the Commission that there is no fundamental crisis in Australia's federal justice system, and submitted that radical changes are unwarranted and that the current system has demonstrated a capacity for change and reform. [71]

1.56 Indeed, with the notable exception of the Family Court, no court, tribunal, agency or institution sought to argue that the federal civil justice system was in crisis. The Family Court's submissions [72] and public statements [73] consistently focussed on what it described as its lack of resources, the overburdening of the courts and reductions in legal aid funding.

1.57 The Family Court's submission criticised the Commission's `unquestioning acceptance of the decline in legal aid and the rise in unrepresented litigants'. It characterised the Commission's assertion in DP 62 that there was `no crisis' as representing a

failure in its duty to present an independent report on problems in the federal judicial system ... and the fact that they have been brought about at least to some extent by deliberate Government policy. [74]

1.58 The Commission's research, detailed in DP 62, did confirm the real problems associated with the lack of legal representation. The Commission reported that unrepresented parties appear to experience difficulties in securing effective, consensual outcomes within litigation and review proceedings and may be less successful in the case outcome than represented parties. [75]

1.59 There is an evident relationship between levels of representation in the courts and government funding of legal aid schemes. Chief Justice Murray Gleeson has noted that

the expense which governments incur in funding legal aid is obvious and measurable, but what is real and substantial, is the cost of the delay, disruption and inefficiency which results from the absence or denial of legal representation. Much of that cost is also borne, directly or indirectly, by governments. Providing legal aid is costly. So is not providing legal aid. [76]

1.60 In DP 62, the Commission observed that governments across the developed common law and continental legal systems have sought to cap and contain legal assistance costs, and this is not a peculiarly Australian phenomenon. As former federal Attorney-General Michael Lavarch has said, the essential difficulty for all governments with legal aid funding is that it is open-ended, demand-driven and rising in cost. [77] As a general matter, Mr Lavarch noted that in his experience of the budgetary process

The reality is that the legal system is a very low priority when it comes to the overall responsibilities of the Federal Government. It does not rate compared to other government responsibilities such as health, education or defence. In fact, it would not be going too far to say that many in the executive see the legal system and lawyers as a hindrance to the operation of a fair and just society, rather than an essential component of such a society. [78]

... in a budget of severe expenditure reduction, legal aid was not considered as high a priority as other government expenditure such as defence, so as to be spared significant funding cuts. Indeed, the same could be said of the legal system as a whole. [79]

1.61 The constraints on legal aid have intensified pressures to research and implement effective and proportionate legal servicing and case management processes. [80] Concern about legal aid has generated considerable impetus to find ways to limit, predict and control legal costs. [81] Future research should provide better measures of legal need and appropriate case expenditures.

1.62 To some extent, rising costs reflect the increasing reach and complexity of, and constant changes to, substantive law, especially the explosion in legislation and regulations in modern times. [82] Later in this report, the Commission recommends that parliamentary committees should scrutinise bills to determine the potential impact on legal costs, since government has some responsibility to balance demands it creates with appropriate resources to meet these demands. [83]

1.63 However, the Commission believes that courts and tribunals must take similar responsibility for the way in which they manage their own processes and procedures.

1.64 The Commission heard frequent, strong complaints from lawyers and litigants [84] (and, indeed, from some Family Court judges and staff) about the undifferentiated and unduly prescriptive approaches to case management in the Family Court. Lawyers and litigants expressed considerable frustration over the wastage of costs and resources (including of capped legal aid funds) through unnecessary, repetitive or ineffective procedures, and through inappropriate streaming of cases to particular dispute resolution processes. [85]

1.65 As far back as 1983, Professor Ian Scott, a leading expert on case management, wrote that

Politicians do not believe that the way to reduce delays is to provide more resources. The road back to adequate funding starts with judges, lawyers and administrators putting their own house back in order so that they can demonstrate to those who control the strings of the public purse that they have done all within their power to see that the court system is being run as efficiently and effectively as possible on the resources available and so that they can show that any further resources that are made available will be used productively. [86]

1.66 After surveying the position in a dozen industrialised nations, [87] including both common law and civil law legal systems, Adrian Zuckerman came to a similar conclusion.

A recurring complaint is that courts are understaffed and short of other resources. These may well be important factors. However, there is a growing recognition that, before asking the taxpayer to assume an even greater burden in paying for the administration of civil justice, we should try and find out whether there are other factors contributing to the duration of proceedings ...

We should try and find ways of curbing the appetite for unproductive procedural activity, before we expand the number of judges and of support staff. [88]

1.67 The Commission accepts the practical wisdom of this approach. [89] Rather than simply imploring the government to `send more money', the Commission has sought to make recommendations aimed at achieving best practice in all aspects of the justice system, from the initial training of potential lawyers at university through to the management of the most complex types of litigation. It may well be that, even operating at optimal efficiency, our civil justice system will require additional public funding to support litigants of modest means, or greater resources for courts, tribunals or ADR processes -- and in this case such arguments will be easier to make, and to win.

1.68 Persistent talk of `crisis' based on anecdotal evidence, which portrays the exceptional (and invariably the exceptionally bad) case as the norm, and always sees the problems as emanating from another source, has the tendency to produce cynicism and induce paralysis -- a sense that the problems are far too overwhelming to be fixed. In fact, while acknowledging the existing flaws, the Commission believes that many parts of the federal civil justice system have demonstrated a healthy capacity for self-analysis, engagement with constructive criticism, and adaptability in the face of difficult circumstances.

Thinking about access to justice

1.69 As indicated above, this inquiry initially was prompted by the work and report of the Access to Justice Advisory Committee, and the then government's Justice statement in response. Accordingly, the Commission's terms of reference were directed to a consideration of the cost, timeliness, efficiency and accessibility of the federal civil justice system. [90] These are complex and interrelated issues which concern the nature, quality and role of our justice system.

1.70 Evaluations of cost, accessibility and efficiency can vary depending upon the particular vantage point one adopts to view the litigation and review systems. To take the example of costs, do we measure the cost of the litigation and administrative review system to the government or to the parties? A reduction in public costs frequently displaces such costs to private parties. The `user pays' principle, now so well entrenched in many other aspects of public policy, would seem to mandate such cost shifting.

1.71 Determining a single vantage point for private `users' is also problematic, of course, since parties have significantly different skills and resources to deploy on litigation and review. The Commission has sought to provide some detail on the profile, skills and expectations which litigants and review parties bring to courts and tribunal processes. [91] Court processes and management timetables may appear to be lax and accommodating to one party and strenuous and incomprehensible to another. Costs may appear insurmountable to one party, and simply part of everyday business and commerce to another. Thus the Commission focusses on particular types of proceedings and litigation wherever possible to highlight and explicate these differences.

1.72 The issues of cost, timeliness, efficiency and accessibility have been analysed and considered by a growing number of law reform bodies here and overseas. Judging from this literature these are problems which bedevil civil justice systems around the world. As Adrian Zuckerman has observed,

[a]lthough excessive delay and high cost have serious effects on the system of justice, they have been persistent in most civil justice systems for a very long time. Every country boasts a long history of attempts to reduce delay and cost, yet few have been even moderately successful in reaching a sensible balance. [92]

1.73 Garry Watson notes, similarly, that

[d]espite some sixty reports in England on aspects of civil procedure since 1851, there has been no lasting solution to the twin problems of cost and delay. The same is true of North America. Our predecessors were neither foolish dullards nor acting in bad faith; reform is simply very difficult. The challenge is not simply to propose change: it is to propose reforms which significantly improve the current position. [93]

1.74 And Professor Judith Resnik agrees that

[t]he history of procedure is a series of attempts to solve the problems created by the preceding generation's procedural reforms. [94]

1.75 It is difficult not to agree with Professor Thomas Cromwell (now Justice Cromwell) of the Canadian Task Force on Civil Justice, who has summarised a finding common to all such efforts: `[t]here are probably no quick fixes or sudden insights that will ensure great improvement' to the justice system. [95]

1.76 The Commission considered many leading overseas reports, including reports of the Ontario Civil Justice Review, [96] the Canadian Bar Association Systems of Civil Justice Taskforce, [97] and the Ontario Legal Aid Review, [98] Lord Woolf's inquiry into the civil justice system in England and Wales and subsequent reform papers, [99] and from the United States, the many research and policy reports of the RAND Institute for Civil Justice, [100] the State Justice Institute, the Federal Judicial Center and the National Center for State Courts. [101] The Commission also considered reports of the American Bar Association [102] and the Judicial Conference of the United States. [103]

1.77 In Australia, research on civil justice has been undertaken over several years by the Access to Justice Advisory Committee, [104] the federal courts and tribunals themselves, parliamentary committees, [105] the Australian Institute of Judicial Administration (AIJA), [106] the Administrative Review Council (ARC), [107] the Family Law Council (FLC), [108] the National Alternative Dispute Resolution Advisory Council (NADRAC), [109] consultants commissioned by the federal Attorney-General's Department, [110] State law reform commissions and committees, [111] the Queensland Litigation Reform Commission and the Queensland Department of Justice, [112] the Victorian Civil Justice Review, [113] the Justice Research Centre, [114] the Council of Chief Justices of Australia and New Zealand, [115] the Judicial Conference of Australia, [116] legal professional associations such as the Law Council of Australia [117] and the Law Society of New South Wales, [118] -- and this Commission. [119]

1.78 In sum, the Commission has thoroughly examined the many reports of task forces and special commissions of inquiry, the growing international secondary literature, and the many experiments and innovations instigated by institutions within the justice system or mandated by their executives or legislatures, domestic and overseas.

1.79 The Commission heard often from experts and institutions overseas that developments here are followed closely and have influenced overseas reform initiatives. Australian federal courts and tribunals enjoy a fine reputation internationally. While this Commission would never suggest that international best practice should not be keenly monitored, it is important also to recognise homegrown achievements and expertise. Throughout this report, the Commission has endeavoured to highlight both domestic and international reform efforts.

Notions of procedural justice

1.80 An accessible justice system implies dispute resolution processes that are widely available, explicable and affordable. Even if this is provided for disputants, however, not all would choose to avail themselves of such processes. When litigants and the public speak of `access to justice', they usually proceed from a conception of the legal system as a service provider, as a means for addressing their particular grievance, vindicating their rights and achieving their desired outcomes. Litigants may lack confidence in, or harbour anxiety about, the way the justice system might treat their claim or afford them a remedy. For many, subjective factors associated with the way they perceive or experience the justice system are key barriers to access to justice. [120]

1.81 Access to justice can only ever mean, in broad institutional and systemic terms, relatively equitable access to the legal process. Access to the system is no guarantee of a successful outcome from the process, and thus is no guarantee of litigant satisfaction in all cases. [121]

1.82 It is now well accepted that access to justice does not involve only enhanced access to the formal processes of civil courts. There is a range of well utilised informal, dispute resolution options available for federal civil disputes. Federal tribunals, government and industry ombudsmen schemes, court and community based ADR processes, conciliation schemes in the Human Rights and Equal Opportunity Commission (HREOC) and the Australian Competition and Consumer Commission (ACCC), community justice and dispute resolution centres, and family and relationship counselling, all play a significant part in dealing with legal disputes. In the federal jurisdiction, such agencies also generally undertake to educate the community about dispute resolution and dispute prevention.

1.83 Taking the Australian Banking Industry Ombudsman, the Telecommunications Industry Ombudsman and the Private Health Insurance Ombudsman, the major industry watchdogs in areas of federal jurisdiction, the total number of contacts made to these organisations rose from about 27 000 in 1995-96 to over 100 000 in 1997-98. The number of complaints lodged grew from about 2000 in 1995-96 to 6000 in 1997-98. [122]

1.84 The facilitation of these schemes certainly is to be commended. As noted above, however, there is also a real need for careful empirical study of the quality and effectiveness of such schemes (and their ultimate impact on the workloads of courts and tribunals), lest the imperative to create alternatives to formal litigation results in more processes seen to deliver `second class' justice.

1.85 `Justice' resists easy definition, but is usually equated with fair, open, dignified, and careful processes. As Professor Rod Macdonald has observed, a justice system that over emphasises matters of cost, speed and `efficiency' may not succeed in delivering `true justice'.

It may be that the public is more concerned with the substance of justice than with the specific procedures put in place to achieve it ... Yet, there are many studies suggesting the opposite. The outcome of a trial, even in cases where one or both parties feel that `true justice' has not prevailed, is seen as less important than the fairness of the process. Indeed, to feel that one has been listened to impartially and conscientiously, even if this imposes significant additional costs and delays, is a central litigant value. In other words, it is important not to ... assum[e] that all things being equal, the best solution to problems with the civil justice system would be to ensure an efficient, timely, and inexpensive judicial process. [123]

1.86 Some flavour of this in federal jurisdiction is provided by an analysis of the repeat litigation in family law and refugee cases. For example, the Commission was told that refugee claimants seek judicial review to `cure' their sense of unfair processes in tribunal proceedings. [124] Similarly, one Family Court judge said of repeat litigants in that jurisdiction that

a number of people use the system exploitatively and keep coming back with repeat applications. You must remember, however, that these parties have often been harshly dealt with, either by a spouse or by the Court at an earlier stage, causing a deep sense of injustice to well up through a series of holes in the structure. The fact that the parties have been badly handled by the Court at early stages makes such parties -- who are basically reasonable at heart -- become outrageous and obstructive in their behaviour in Court. This is a far wider problem than can be dealt with by case management. [125]

1.87 Legal system reform is frequently characterised as a policy choice between individualised, expensive `Rolls Royce' justice, on the one hand, and affordable, robust, high volume `Holden' justice on the other. [126]

1.88 This dichotomy is a false one. First, it is odd that the language of public transport is rarely invoked, when the justice system is a part of the public infrastructure and, as former Attorney-General Lavarch has described above, it competes with other parts of the public sector for government funding. Second, if as research suggests, parties accord a primary value to fair and attentive processes, an element of individualised justice must be the indispensable characteristic of any good dispute resolution system -- whether this is delivered in particular cases by lower courts, superior courts, or tribunals, or by ADR processes.

1.89 The demand for individualised justice is said to have `placed an immense strain' upon the justice system. [127] In this context, there is some comfort in the truism that cases vary in the individual attention and assistance they require from courts and tribunals. Some cases need the early and continuing intervention of a judge; detailed, extended disclosure of information and documents; and then a formal hearing leading to a written judgment. [128] In others, the parties may require only the `shadow of the court' or tribunal to help them to define the issues in dispute, or opportunities for negotiation or mediation, and ultimately the certainty of a binding outcome.

1.90 Perhaps the most important part of an effective case management system [129] is the ability to provide a legal version of what hospital emergency rooms refer to as `triage' -- the initial and prompt separation of cases according to the degree of urgency and specialist attention required.

1.91 Society and the profession have wrongly been caught up in a rhetoric that often equates expense and formality with importance and quality. So, for example, as Victoria Legal Aid has pointed out the repeated comment that,

because our kids are important, decisions involving kids should be made at the top level. Concepts such as `best decisions', `best lawyers', `Rolls-Royce justice' in the higher courts are a fiction and are not borne out by the quality of the decisions made ... As legal complexity is not the issue in many family law matters, high level courts are often inappropriate. [130]

1.92 The counterweight to the institutional desire to provide an idealised form of individualised justice is the obligation to apply the limited resources available within the civil justice system in such a way as to meet the instances and areas of greatest need. The central theme of the Woolf report was that a sense of proportionality should guide the management of litigation. As Zuckerman has described

the move towards judicial domination of the civil process represents more than a change in the mechanics of litigation. It involves the development of a new philosophy of procedure. The new philosophy is most clearly elaborated in the new Civil Procedure Rules in England, where the idea of proportionality is spelt out. According to this idea, the procedure adopted for resolving a given dispute should be proportionate to the value, importance, and complexity of the dispute ... These ideas are fairly widespread throughout the systems [studied]. [131]

1.93 The proportionality principle is associated with the philosophical theories of `distributive justice', most famously developed by John Rawls, [132] Ronald Dworkin, [133] Amartya Sen, [134] Robert Nozick [135] , John Roemer, [136] and others. Notions of distributive justice have their modern origins in the analyses of the redistributive policies and programs of the welfare state. Apart from the obvious application to situations in which provision is made for disadvantaged persons to receive assistance to participate more fully in public life (for example with respect to education, health care, and legal aid), more recent debates in this area also extend to broader questions of intergroup, international and intergenerational equity.

1.94 In terms of its application to policies and procedures within the civil justice system, Zuckerman has noted that

[n]otwithstanding the cultural divides between different systems (not just between common law and civil law systems but even within each of these groups), there seems to be emerging some general trend towards judicial control of the litigation process. The assertion of judicial control seems to go hand in hand with a new philosophy of distributive justice in procedure.

According to this idea, the function of the courts is not only to decide cases according to the law and the facts, but also to ensure that the limited resources of the system of civil justice are justly distributed between all those seeking justice. Accordingly, judges must ensure that the resources given to individual disputes are proportionate to the complexity and importance of each dispute. In so doing judges must take into account not only the interests of the litigants before the court, but also the interests of all others waiting in the queue. The aim of judicial control is, therefore, to avoid unnecessary cost and delay and ensure that the court resources are economically managed. This philosophy of distributive justice brings to the administration of civil justice the practical considerations of cost-effectiveness and of efficient management of public resources, which play an important part in the provision of most other public services. [137]

1.95 In the Australian system of civil justice, the courts appropriately are accorded independence from executive interference, and the federal courts and the AAT are also administratively autonomous. [138] Thus, as discussed later in this chapter, it becomes primarily a matter for the courts and tribunals themselves, [139] in consultation with key user groups, to develop their own practices and procedures. In practice, this would rarely if ever involve a stark choice between competing procedural models of individualised and distributive justice. Rather, the task is to strike an effective balance between the concerns for individualised justice and for efficient use of limited public resources across the system.

1.96 A welcome sense of individual justice can derive, for example, from the array of appropriate dispute resolution options within and outside the civil justice system, [140] from the availability of sensible advice and assistance about options and processes (whether or not delivered by lawyers), from responsive and engaged registrars and court and tribunal staff, and from attention paid to the design features, [141] atmosphere and facilities provided by institutions. A system providing information and options, employing courteous and attentive officers, offering thoughtful consideration to the issues and evidence, and yielding fair and sensible results, need not be prohibitively expensive.

Recognising the multiple functions of a justice system

1.97 The popular image of courts has a judge presiding over a trial (often with a jury) and then delivering judgment. In fact, only a small proportion of cases lodged in courts and tribunals proceed all the way to a hearing. Much of the time and expense of litigation or review is associated with interlocutory and facilitative processes. Looking at the outcomes of litigation empirically, the major product of courts is not judgments, but settlements. Professor Marc Galanter has noted that

[s]ettlement is not an `alternative' process, separate from adjudication, but is intimately and inseparably entwined with it. Both may be thought of as aspects of a single process of strategic manoeuvre and bargaining in the (actual or threatened) presence of courts. [142]

1.98 Settled case outcomes lessen demands on courts and tribunals. The legal system -- in both civil and criminal jurisdictions -- could not possibly function if a significantly larger proportion of matters proceeded through the system to a full, formal hearing and judgment. The system seeks to facilitate settlements through a variety of ADR processes, [143] and summary and single issue determinations. These processes signal or identify for the parties the points of convergence in their dispute, and the transaction costs -- the time, attention, opportunity costs, and uncertainties -- which constitute their settlement range. [144]

1.99 In evaluating the workings of courts and tribunals, settlement rates are typically counted as measures of `success'. Settlements are ascribed to particular facilitative strategies and processes. There are different factors leading parties to settle. Not all cases are amenable to settlement. Some highly interventionist settlement processes may be experienced by the parties as coercive or `bullying'. [145] In evaluating case management systems, the Commission has been careful not to rely uncritically on settlement rates as the sole barometer of success, in isolation from other `quality' indicators. [146]

1.100 In its empirical study and consultative processes, the Commission sought to document and analyse the different types of cases, parties, processes and outcomes for cases in the Federal Court, Family Court and the AAT. The findings concerning this evaluation are set out in the chapters that follow. However, there are few agreed indicators of the quality or the efficacy of settlements in delivering `justice', and a great deal more empirical research is needed in this area in Australia. [147]

1.101 In addition to determining and facilitating the resolution of disputes, courts and tribunals provide `norms and procedures', [148] which regulate adjudication of disputes. Court rulings provide statements of `social purpose ... the proper meaning to our public values'. [149] The legal system affords mechanisms by which society monitors and regulates its incessant change. Basic elements of fair decision making, as determined by courts, have resonated far outside the courtroom. [150] Sir Gerard Brennan has commented

It is for the service of the people that the courts are created and perform their functions. The courts sit in public, think and write in private, then publish to all the world their decisions and reasons. No other branch of government responds so unfailingly to every application within its jurisdiction nor gives so adequate an explanation of the reasons for its decisions. [151]

1.102 In family jurisdiction, the impact of the court likewise extends far beyond the courtroom.

Family law is the legal system's metaphor, the crucible where so much else in law intersects ... It is also, because it is the area of law by means of which most people will come into contact with it, the area by which the legal system will be judged by most people. [152]

1.103 This broader impact is reflected in the Family Law Act, which aims, with respect to children

to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [153]

1.104 In fulfilling this role, the Family Court was described in one study as a `frontline institution to resolve family violence'. [154]

1.105 Reform to the litigation or review system cannot discount the role of courts and tribunals beyond adjudication or review. The Federal Court, for example, plays a pivotal role in relation to various sectors of economic activity. It creates and maintains formal and informal rules which keep business transaction costs low, defines and protects rights (including intellectual property rights), gives force to contractual agreements, influences private commercial dispute resolution, ensures the security of property, helps to regulate markets (including capital and labour markets) and ensure competition, and scrutinises the behaviour of public officials and the quality of legislation. [155]

1.106 Some economic theory now posits that key institutions, including the courts, may be as important to the working economy as the three factors in classical economic theory: money, people and resources. [156] Researchers have documented the link between effective judicial management of intellectual property cases and the amount and kinds of technology transfer and direct investment in a country. [157]

1.107 Corporate lawyers and inhouse counsel consulted by the Commission were emphatic in their view that law and legal services are a key export, and that an efficient court and legal system is part of what makes Australia competitive in the Asia-Pacific region and beyond. [158] In summarising our consultations leading to the publication of DP 62, the Commission reported that there has been consistent praise for the Federal Court as a `world class civil court'. [159] The Commission believes that the independence, integrity, and quality of the federal civil justice system are matters of comparative advantage in the region, which government and industry should promote strongly in seeking foreign investment and in positioning Australia as a regional finance centre and corporate headquarters.

1.108 The natural concern for producing an efficient and effective system for resolving civil disputes should not obscure another critical social interest, however -- that the courts, especially the superior courts, play an essential role in progressively developing the common law, and in regulating the balance and separation of powers. As the Chief Justice of New South Wales, the Hon Justice James Spigelman has stated

We must never lose sight of the fact that the legal system is the exercise of a governmental function, not the provision of a service to litigants as consumers. [160]

1.109 The submission from the ACCC, for example, noted that it sought to strike a strategic balance utilising negotiated settlements and ADR processes to secure compliance by the business community in individual cases, and litigation to attract public attention and to establish important legal precedents. [161]

1.110 Professor John Leubsdorf has written of the tension involved in pursuing civil justice reform in a system with multiple aims and functions.

We might fix on three fairly trite criteria for appraising a procedural system: the cost of litigation; the time needed to resolve disputes; and the accuracy with which the system finds the facts and applies the law ... some will question these criteria: those, for example, who see litigation less as law enforcement and more as dispute resolution might replace accuracy by litigant satisfaction. And the three criteria sometimes conflict. Making procedure speedier and cheaper might well make it less accurate even though keeping it slower and more expensive will not necessarily make it more accurate. [162]

Ultimately, our judgement of a procedural system should go beyond its average speed, cheapness, and accuracy. We should think about what suits we want it to foster or discourage. We should think about how its procedures will affect litigants and others. We should recognize it as part of the governmental system, wielding powers that must be properly allocated and controlled. Very likely concerns such as these greatly influenced the creators of past and present procedural systems, however loudly they may have proclaimed their desire to make lawsuits cheaper, speedier, and more accurate. The most firmly implanted myth of procedural reform may be that we can talk usefully about it as simply an effort to increase judicial efficiency, without talking about our visions of procedural and social justice. [163]

The adversarial/non adversarial (non) debate

1.111 Implied in the directive to the Commission to consider `civil litigation and administrative law principles in civil code countries' [164] was the need to report on the comparative advantages and disadvantages of the common law adversarial system.

1.112 In DP 62 the Commission concluded that an adversarial-non adversarial construct was too elusive a basis on which to analyse problems or to formulate change to the system. Such debate assumes that transplants from different political and cultural systems will function in similar ways when rooted in our legal system, that such change can be engineered, and that it will improve the system rather than introducing a new host of problems. [165]

1.113 The Law Council, [166] and the Law Reform Commission of Western Australia, in its review of the civil and criminal justice systems in that State, agreed with the Commission's caution about such an approach. [167]

1.114 In DP 62 the Commission also noted that calls for overthrow of the adversarial system generally oversimplify the problems and solutions in our civil justice system. [168] Such calls assume that the problems associated with, say, costs, delay or unfairness in the system, are attributable to the `adversarial character' of the system and that these problems can be `cured' by extensive borrowing from the civil code systems. Relevant in this regard is Lord Woolf's diagnosis that litigation problems in England and Wales derive to a large extent from the unrestrained adversarial culture of their legal system. [169]

Without effective judicial control ... the adversarial process is likely to encourage an adversarial culture and to degenerate into an environment in which the litigation process is too often seen as a battlefield where no rules apply.

1.115 However, Lord Woolf's primary solution, active judicial case management, has been an established practice for some time throughout the United States and Canada, [170] and in Australia. [171]

1.116 The debate on changing adversarial culture or processes is also clouded by definitional questions as protagonists debate core values and practices in stereotypical legal models, sometimes comparing the perceived shortcomings of one system with an idealised version of the other, and often failing to acknowledge the number of variables in play or the complexity of these inter-relationships. [172] The terms `adversarial' and `inquisitorial' have no precise or simple meaning, [173] and to a significant extent reflect particular historical developments rather than the practices of modern legal systems. [174] No country now operates strictly within the prototype models of an adversarial or inquisitorial system. The originators of those systems, England, France and Germany, have modified and exported different versions of their respective systems.

1.117 In very broad terms, an adversarial system refers to the common law system of conducting proceedings in which the parties, and not the judge, have the primary responsibility for defining the issues in dispute and for investigating and advancing the case. [175]

1.118 The Law Council defined an `adversarial system' as

a specific type of proceeding taking place in a court which deals with a dispute between at least two parties ... The dispute is `party controlled', that is, the parties define the dispute, define the issues that are to be determined and each has the opportunity to present his or her side of the argument. [176]

1.119 The term `adversarial' also connotes a competitive battle between foes or contestants [177] and is often associated in popular culture with partisan and unfair litigation tactics. Battle and sporting imagery are commonly used in reference to our legal system. [178] Lawyers' anecdotes about the courtroom are `war stories'. The term `adversarial' has become pejorative. The comparison is the perceived harshness of our own system with an idealised, cooperative dispute resolution model (not a conflict model) associated with ADR, or the `games' and tactics of adversarial systems set against `truth finding' inquisitorial processes of civil code systems.

1.120 The Law Council defined civil code proceedings as representing, in procedural theory, `judicial prosecution' of the parties' dispute, as opposed to the `party prosecution' of the dispute that has typified the common law system. [179] The term `inquisitorial' refers to a proceeding in which a neutral judicial officer carries out an investigation

to discover facts, the discovery of which will serve some identifiable public purpose. There is no dispute per se. [180]

1.121 The Commission noted in DP 62 that there is limited utility in simply listing and comparing the advantages and disadvantages of the present `adversarial' system of conducting civil administrative review and civil law proceedings in federal jurisdiction. [181] The relative merits and demerits of adversarial systems have been extensively debated and were repeated in submissions to the Commission. There are many texts which recite and analyse the `adversarial' benefits of judicial impartiality, [182] independence, consistency, flexibility and the democratic character of adversarial processes, [183] or perceived disadvantages including tactical manoeuvring, [184] partisan and unreliable witnesses, [185] the obscured focus of many adversarial hearings, [186] and the unfairness that can result in such hearings when parties are unrepresented or there is inequality of legal representation. [187]

1.122 Submissions to the Commission developed some of the perceived advantages of adversarial proceedings, including

[t]he ability to provide procedural safeguards, the ability to enforce orders relating to disclosure of information, the ability to test statements and information in cross examination, the ability of a third party to review outcomes to ensure they are just and equitable. [188]

The use of an adversarially based system provides important safeguards to litigants and to the community, in that the issues in dispute are defined by the parties and the litigation is then fundamentally conducted by them, under the supervision of the Court, in conformity with identifiable rules of court and rules of law. A public accountability which is not present in other systems is intrinsic to an adversarial system of litigation. [189]

1.123 The Law Council stated that the best aspects of the Australian federal civil litigation system were that it was fair, provided opportunity to air grievances, had highly trained and respected adjudicators, [190] brought finality of decisions, was in accord with an individualistic, rights based society, developed a core of legal rules which helped to resolve other disputes, was independent of government and produced good decision makers. [191]

1.124 The NSW Bar Association stated that adversarial features such as the detachment and impartiality of the judge, and the relatively high degree of party control of the process, and the public nature of the final trial exposing the strengths and weaknesses of each case, promoted understanding of the reasons for the result and helped losing parties to accept the result. [192]

1.125 Several submissions from individual litigants, corporations and consumer groups expressed the view that the adversarial system was unsuitable for many types of disputes, particularly family law disputes, [193] because the system was concerned with `winning at all costs', [194] exacerbated conflict, [195] victimised the poor and less powerful [196] and left children out of the process. [197]

In the event of an adjudication following the adversarial process there will be a disappointed party -- the loser. [198]

1.126 Notwithstanding the supposed variation between the adversarial and non adversarial models, there is a significant degree of convergence in the way both common law and civil code countries now approach civil disputes. [199] For example, German civil procedure has many of the same characteristics as civil processes in adversarial systems and is described in the literature as an adversarial or party system. [200] In private civil disputes in both models, the involvement of the parties in the presentation of the case extends to initiating proceedings, determining the issues to be decided, investigating the facts, and selecting and presenting witnesses and other evidence. In common law systems, the parties also select and present experts (in civil code systems experts are appointed by the court), and present oral evidence, argument and submissions by counsel at the hearing. [201]

1.127 The European Union is contributing to the convergence of English and Continental civil procedure. [202] The American Law Institute aims to establish a single system of civil procedure across national boundaries. [203] Basil Markesinis said of such arrangements that

convergence is taking place ... There is thus a convergence of solutions in the area of private law as the problems faced by courts and legislators acquire a common and international flavour; there is a convergence in the sources of our law since nowadays case law de facto if not de jure forms a major source of law in both common and civil law countries; there is a slow convergence in procedural matters as the oral and written types of trials borrow from each other and are slowly moving to occupy a middle position; there may be a greater convergence in drafting techniques than has commonly been appreciated ... there is a growing rapprochement in judicial views. [204]

1.128 Similarly, Zuckerman's introduction to a recent comparative review of the civil justice systems in both common law and civil code countries, revealed that

The clearest trend emerging from the different national accounts is a general tendency towards judicial control of the civil process. Both common law countries and civil law countries display a shift towards the imposition of a stronger control by judges over the progress of civil litigation. In virtually all the systems reviewed here there is a perception that, when the process of litigation is left to the parties and their lawyers, its progress is impeded by narrow self-interest. Such self-interest may be that of recalcitrant defendants bent on exhausting and tormenting their plaintiffs or that of self-interest of lawyers determined to enhance their own incomes.

The contemporary dominant view is that the disruptive self-interest of parties and their lawyers can only be kept at bay by an active judiciary that directs the litigation process and is able to prevent disruptive tactics. The USA has been leading the trend amongst common law countries. A culture of managerial judges is now well established there. In England and Australia the move towards judicial control is more recent, but it is equally dramatic.

A similar trend is reported from the great majority of civil law countries. In France, Spain, Portugal, Italy, and even in Japan and in Germany, moves are afoot to strengthen the judicial supervision of the litigation process. [205]

1.129 As this suggests, in the Australian civil justice system processes such as case management, court or tribunal connected ADR processes, and discretionary rules of evidence and procedure, have modified the adversarial nature of the system.

1.130 For example, the federal review tribunal system has borrowed extensively from procedures in civil code systems. [206] In family proceedings, the Family Law Act and case law in relation to children`s matters enable the Family Court to intervene in ways not open to traditional courts to elicit additional information beyond that provided by the parties, [207] to assist an unrepresented litigant, [208] to order family reports to be prepared, [209] to appoint a child representative whose role is `akin to counsel assisting', [210] and of its own motion to call any person before it as a witness. [211] The Law Council noted of such arrangements that it was not

aware of any country that has an inquisitorial approach for family law matters relating to children ... Children's issues are unique and family law litigation has been modified for its particular needs ... The modifications are merely a change to the practice and procedure of the Court. [212]

1.131 A conference examining comparative legal systems, co-sponsored by the Commission as part of this inquiry, described the high costs and delays likewise afflicting the French and German systems (the systems discussed at the conference). [213] Lowenfeld, reviewing common law and civil code systems in the 1997 American Journal of Comparative Law symposium on civil procedure, commented that

one result of listening to and reading about each other's problem was the realization that none of the observers and commentators was satisfied with the system he or she knew best. [214]

1.132 There are also strong cultural and pragmatic reasons for not recommending a full embrace of the continental European model. Former Chief Justice Sir Anthony Mason commented that

A move to the European model would also present a major culture shock for the legal profession and litigants ... the move away from the present system would certainly disappoint expectations on the part of litigants who believe that their day in court entails the presentation of a case as shaped by their advocate, along with cross examination of witnesses. [215]

A shift to the European model ... requires an extraordinary act of faith. It would be contrary to our traditions and culture; it would generate massive opposition; and it would call for expertise that we do not presently possess. And at the end of the day we would have a new system without a demonstrated certainty that it is superior to our own. [216]

1.133 Reviewing the pros and cons of the American adversary system, Professor David Luban justified retention of the current system on pragmatic grounds.

[F]irst the adversary system, despite its imperfections, irrationalities, loopholes and perversities, seems to do as good a job as any at finding truth and protecting legal rights ... Second, some adjudicatory system is necessary. Third, it's the way we have always done things. These things constitute a pragmatic argument: if a social institution does a reasonable enough job of its sort that the costs of replacing it outweigh the benefits, and if we need that sort of job done, we should stay with what we have. [217]

1.134 In a similar vein, Professor Cromwell has commented on the Canadian situation that

First the fact that our process of adjudication is adversarial does not require that all parts of the process ... need be adversarial. Second, ... there is plenty of room to change many aspects of our present adjudicative process without striking fundamentally at any of these core attributes. Third, the best argument in favour of an adversary process is pragmatic. The process is not divinely inspired nor are all others essentially corrupt; it is simply our tradition and it probably is not worth trying to eradicate it. [218]

Continuity ...

1.135 In addition to these pragmatic and cultural reasons for refining our own civil justice model rather than importing another, there are also some important matters of principle and constitutional constraints which limit the scope for radical change in the federal jurisdiction. [219]

1.136 As the Commission noted in DP 62, [220] the key principles of the Australian civil justice system are constants, notably: the rule of law and the constitutional doctrines concerning the separation of powers, judicial independence, the exercise of judicial power and judicial process, [221] and principles concerning the role of lawyers as partisan advocates and advisers of their clients, subject to their overriding duties as officers of the court and to relevant practice rules. [222]

1.137 Justice Michael Kirby has observed that in its form, formality and etiquette, legal practice replicates its traditions.

A lawyer from Dickens' time, walking out of Bleak House into a modern Australian court on an ordinary day, would see relatively few changes. Same wigs and robes. Same elevated Bench and sitting times. Very similar basic procedures of calling evidence and presenting argument. Longer judgments: but still the same structure of facts, law and conclusion. [223]

1.138 There are legal, practical, cultural and cost constraints on how reform may be achieved in our justice system to meet these changing circumstances. A significant limitation derives from the federal Constitution.

1.139 As stated above, Chapter III of the Constitution vests the `judicial power of the Commonwealth' [224] in the High Court of Australia and other federal courts created by Parliament, which now includes the Federal Court and the Family Court, and will include the new federal magistrates service. An essential feature of judicial power is that it be exercised in accordance with the judicial process. [225]

Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. [226]

1.140 Judicial process requires an open and public inquiry, the application of the rules of natural justice and a determination of the law and the facts and the application of the law to those facts. [227] In Leeth v Commonwealth Chief Justice Mason and Justices Dawson and McHugh agreed that

any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power. [228]

1.141 Family proceedings, despite certain non adversarial features, are also constitutionally constrained. In R v Watson the High Court held that the provisions of s 97(3) [229] of the Family Law Act which

require him [the trial judge] to proceed without undue formality, do not authorise him to convert proceedings between parties into an inquiry which he conducts as he chooses ... A judge can neither deprive a party of the right to present a proper case nor absolve a party who bears the onus of proof from the necessity of discharging it. These remarks are not intended to fetter a judge of the Family Court in the exercise of a proper discretion or to insist upon the observance of unnecessary formality; they are designed to make it clear that a judge of the Family Court exercises judicial power and must discharge his duty judicially. [230]

The position is different with respect to federal tribunals, which are not constituted as Chapter III courts. In the Brandy case, [231] the High Court outlined two essential aspects of judicial power

1.142 A consequence of this reasoning is that federal tribunals, unlike courts exercising the judicial power of the Commonwealth, possess no power to make determinative findings of law, and therefore decisions of federal tribunals, insofar as they affect existing legal rights, can never be definitive and are always open to judicial supervision. [234] The ability of tribunals to operate informally is also constrained by the general requirement that they comply with natural justice.

1.143 While `due process', `natural justice', the `essential character of the court', and the `nature of judicial power' are not inherently adversarial concepts, they are characteristics of our adversarial system. A duty to act fairly is also consistent with non adversarial procedures. A judge who conducts the investigation, assists the parties to clarify the issues and pleadings and questions witnesses is not proceeding unfairly. However, the adoption of some inquisitorial features into the Australian legal system may interfere with accepted notions of procedural fairness. For proceedings to be fair in an adversarial system, a judge must be independent of the state, impartial and seen to be impartial, with clear limitations to a judge's participation, investigation and management of a matter.

1.144 Procedural fairness may be said to be `the line in the sand' circumscribing the judicial role and entrenching facets of the adversarial model. It is protected through party control of investigation and proceedings. [235]

1.145 In terms of constitutional protection for judicial process, the question is not whether an adversary system is required by the Constitution, but rather, whether those elements required by the Constitution, such as procedural fairness, are best protected in an adversarial system.

1.146 The Law Council stated that

replacing the current adversarial system of litigation with a true inquisitorial system of litigation would seriously erode procedural safeguards and breach the rules of natural justice. Such a reform would certainly be subject to constitutional challenge. [236]

1.147 Similarly, the NSW Bar Association submitted that

Any attempt to undermine the adversarial system would, in our view, be likely to offend Chapter III of the Constitution. That is because Chapter III clearly contemplates a federal system of courts based upon assumptions which are `adversarial' in nature ... Chapter III refers to a court structure which in 1900 was undoubtedly part of the common law tradition. That tradition was fundamentally adversarial in nature. [237]

1.148 In Australia judges generally do not actively investigate matters outside the evidence presented by the parties. [238] They preside over cases, actively manage their progress and facilitate settlement. However, they do not conciliate in matters they are to determine. Former Chief Justice Sir Anthony Mason described these constraints as follows.

The judge must remain a judge, despite the temptation in the world of case management to call him a manager. It is vital to build up and maintain public confidence in the court system. Accordingly, there is a risk that, if we put too much emphasis on speedy disposition of cases, we shall prejudice the just disposition of cases. This is just what we cannot afford to do. [239]

1.149 Justice Michael Kirby noted in this regard

[n]o court can adopt procedures, however well intentioned and whatever the wishes of the parties, if those procedures are incompatible with the Constitution. Nor is it for the parties to litigation or a federal court (or a court exercising federal jurisdiction) to agree on a course of action which contradicts the requirements of Ch III of the Constitution governing the exercise of the judicial power of the Commonwealth. [240]

1.150 Sir Anthony Mason counselled against changing from an adversarial system stating that further change to `traditional judicial methodology' raises a critical tension between the paramount view of parliamentary supremacy and the separation of judicial power'. [241]

[I]f we were minded to adopt the European model, two major questions would confront us. The first is whether the constitutional concept of judicial power ... would extend to the determination of disputes according to the European model. The answer to that turns largely on the extent to which the concept of judicial power mandates common law conceptions of procedural fairness or natural justice. And there are indications in recent High Court judgments that the extent is substantial.

The second major question is whether we are willing to make less of an emphasis on procedural fairness. Are we willing to allow the judge to decide (a) whether witnesses will be called and, if so, which witnesses and (b) to limit cross examination that is not as significant an element in the European model as it is with us. [242]

1.151 However, in relation to tribunal proceedings, inquisitorial procedures do not offend the Constitution. A dual system operates in Australia of courts, emphasising more traditional adversarial proceedings, and tribunals, which provide a blend of adversarial and non adversarial processes. [243]

1.152 The indication from High Court dicta is that any shift to adopt inquisitorial features or other features fundamentally inconsistent with its conception of procedural fairness in relation to federal courts would be unconstitutional. This is the singular limitation to any reform agenda deriving from the Commission's implied term of reference to consider changing from the adversarial system. Thus, the federal government is not in a position to follow the steps taken by the States and Territories in establishing determinative tribunals [244] to deal with small claims and other matters which may lend themselves to less elaborate dispute resolution. Despite the many calls for a low cost tribunal for family matters, this is likewise limited by the Constitution. This is one reason why a federal magistracy was established within the bounds of chapter III, to provide lower cost, summary processes for certain federal matters.

... and change

1.153 Notwithstanding the continuities and constraints described above, the past 20 years or so have seen dynamic changes to the circumstances in which the federal civil justice system operates, including

A collaborative approach to managing justice in a federal system

1.154 The Commission's primary focus has been to ensure that the system delivers fair, quality outcomes which are efficient and cost effective. In formulating recommendations for reform the Commission has been guided by particular goals, namely to

1.155 These goals are measurable and achievable. The goals do not promise `cheaper' justice, but more cost effective processes that will contribute to delivering meaningful access to justice across the community.

1.156 In the Commission's consultations, judges, court administrators and practitioners consistently nominated three features necessary for appropriate change

1.157 On this last point, the Ontario Civil Justice Review noted that problems with the civil justice system in that province were exacerbated by poor communication and limited cooperation among the various stakeholders -- government, the judiciary and Bar -- leading the Review to dub them `the solitudes'.

[I]n each of these constituent groups ... there are individuals who are working hard to build bridges and to devise co-operative methods of addressing and finding solutions to the problems which have beset the system. In general, however, the Judiciary, the Administration and the Bar have maintained an individuality in their approach to the system which has precluded a sense of collaboration, co-ownership or co-responsibility for these problems. There is a tendency to view the system from the perspective of one's own constituency and to view the failings of the system in terms of the needs of that constituency. Along with this tendency goes a reluctance to admit to being part of the problems. [259]

1.158 Effective communication is essential to facilitate and manage individual and systemic change. This theme has featured in several of the recent reports and reviews into the practices and processes of common law, civil justice and administrative review systems. [260]

1.159 The report by Professor Stephen Parker for the Australian Institute of Judicial Administration, Courts and the public, noted the critical importance of communication within the courts and between the courts and their publics. [261]

1.160 In the court systems this requires exchanges among judges, registry staff, lawyers, litigant groups and others. In the administrative review system, it involves improved communication between policy makers, departmental or agency decision makers, administrative agencies and tribunals, and the parties affected individually or collectively by administrative decisions or recommendations, as well as the representatives who act for such parties. [262]

1.161 Successful change in the federal civil justice system in Australia has been introduced where there has been honest discussion about problems, clear statements about what is meant to be achieved by proposed changes, and close consultation among the various participants within and outside courts and tribunals. [263] Case management reforms in the Federal Court, for example, have changed the rules and procedures of litigation and the legal culture, as represented in the working patterns of judges and lawyers. Case management which provides consistent, informed oversight of interlocutory processes (such as discovery) is generally credited with improving litigation practices. [264]

1.162 In this report, after a comprehensive and lengthy inquiry, the Commission makes a large number of recommendations for reform of the federal civil justice system -- none of which are self-executing. These recommendations are made to the Attorney-General, for tabling in federal Parliament, but in the nature of things they are directed to government, to courts and tribunals, to legal aid commissions, to the legal profession, and to the education sector. The success or otherwise of this reform agenda is now dependent upon these bodies, which will have the major responsibility (individually and, where appropriate, in concert) for considering and implementing these proposed changes.

The role of government

1.163 The federal government is a key participant in and a primary architect of the content, structure, and form of the federal civil justice system. The government controls the legislative program of Parliament which has an impact on the volume, complexity and costs of legal advice, disputes and litigation. Government funds the court and review tribunal systems, sets court fees, and finances ADR programs and legal aid, thereby directly affecting the degree of access to the federal civil justice system. Government also makes major decisions on the substance, form and operation of federal dispute resolution -- for example, by funding decisions and priorities and by establishing courts and tribunals, determining their jurisdictions, and defining some of their powers and functions. Government sets research priorities within the public sector, and provides much of the funding for this activity.

1.164 The government's own approach to disputes, dispute prevention, resolution and litigation is highly influential. For example, the fact that the Commonwealth government holds itself out to operate as a `model litigant' has an important symbolic effect on perceptions and expectations about ethical propriety, and an important practical effect in the many matters in which the government is directly involved as a litigant. [265]

1.165 In our federal system, the federal government also plays a key role in highlighting the need for, and then facilitating, coordinated action among the various States and Territories. Although there is increasing recognition of the need for a national market for legal services, for example, it is still the case that the admission, regulation and discipline of legal practitioners is primarily a matter for each State and Territory. Similarly, federal legal aid funds are dispensed through State and Territory legal aid commissions.

1.166 As discussed later in this report, there have been significant moves in recent years towards the creation of a national legal profession, and towards greater national coordination of legal aid guidelines, priorities, programs and practices through National Legal Aid. [266] In other areas where there is still much more to be done, the Commission has made recommendations to the federal Attorney-General to facilitate various actions and processes through the Standing Committee of Attorneys-General (SCAG), which is the body best placed to support efforts at coordination, harmonisation and the development of national approaches and institutions.

1.167 One recommendation in this report is directed to the Houses of Parliament, rather than executive government, urging development of a protocol for handling of those very rare complaints against federal judges which are of such seriousness and substance as to merit parliamentary consideration of removal. [267]

The role of courts and tribunals

1.168 As stated, Australian federal courts and the AAT are independent from executive interference, and for some years also have been self-administering, although they depend on executive and parliamentary approval for their `one line' budget allocations. [268] The High Court of Australia has collective financial and administrative responsibility. [269] In the Federal Court and Family Court, the Chief Justice has full legal responsibility for decision making on the expenditure of funds and the use of resources. [270] The federal courts and the AAT report annually to Parliament through the Attorney-General on expenditure and activities, and are subject to audit. [271]

1.169 Courts and tribunals are difficult institutions to manage. While budgets are relatively fixed, workload is generated outside the institution, can fluctuate and is only moderately predictable. The appointment of key staff -- judges and executive members of tribunals -- is outside of the control of court management. In relation to `chapter III judges', the sort of performance standards and formal accountability measures which are commonplace in other settings are limited by the Constitution. [272] Great care must be taken not to intrude upon judicial independence, which underpins the integrity of our justice system. However judges can invoke the principle of judicial independence to resist change.

1.170 The challenge for court governance is often getting the members of the court to work together towards a common purpose. [273] Professor Scott has noted generally of courts that they

have a systemic tendency towards disorganisation and poor coordination and these problems are never solved once and for all but have to be worked at constantly. [274]

1.171 Case management can provide some discipline against poor work practices and assist to produce rough equities in judge or member workloads. There are different pressures in tribunals where performance measures and indicators can be more readily enforced and operate as a factor in a member's reappointment. [275] It is critical that the judges or members constituting the court or tribunal are competent, energetic and responsive to change. The Commission frequently heard high praise concerning the quality of the judiciary in federal jurisdiction.

1.172 In recent years, the Federal Court, the Family Court and the AAT all have initiated significant changes to their rules, practices and procedures, case management systems, data collection and information technology systems, education and training programs, and approach to `customer service' -- with, it must be said, varying degrees of success.

1.173 The analysis of this experience in DP 62 prompted differing reactions from the three main institutions. The Commission generally praised the operations of the Federal Court and no doubt this contributed in some measure to the cooperative relationship the Commission has with the Court.

1.174 The Commission also noted from its consultations that family law practitioners and litigants were strongly and consistently critical of the case management practices of the Family Court. These concerns were not directed at the quality of decision making, or at the integrity or professionalism of the judges and court staff. Rather, the criticism was directed mainly at the way the Family Court views its functions, how it organises its dispute resolution processes, and how it has managed its own efforts at reform. The Court's submission and the Chief Justice's public comments on DP 62 were highly and personally critical, implying that the Commission was acting in bad faith. [276]

1.175 The Commission also made a number of criticisms of the AAT's case management processes in DP 62, including that matters were taking too long to resolve and at too great a cost, and that members needed to become more effective at progressing cases and enforcing compliance with tribunal directions and orders. [277] Nevertheless, the President of the AAT, Justice Deirdre O'Connor wrote that

the Tribunal and the Commission have worked together closely during the past 18 months ... The Tribunal is grateful for the Commission's analysis, which has stimulated and enhanced the Tribunal's own internal dialogue in relation to case management programmes. [278]

1.176 One of the key signs of a well managed court with a strong collegiate sense and a healthy culture will be its ability to engage with constructive criticism and to manage change. It is also imperative that such changes are seen to improve matters. Repeated failed reform efforts produce a palpable sense of `reform fatigue' and cynicism among participants, contribute to the sense of `crisis' discussed above, and make it that much more difficult to marshal the effort to effect positive change at a later date. The experience of each of these institutions in these respects has been detailed and evaluated in separate chapters later in this report.

The role of the legal profession

1.177 Much of the international literature is highly critical of the legal profession's role in, it is suggested, obstructing meaningful reform of the civil justice system. For example, a major survey of common law and civil law countries found that

[i]n all the countries represented in this volume the legal profession has tended to resist measures designed to simplify the litigation process, or to speed it up or to reduce its cost. [279]

1.178 Even where lawyers support change, their motivation may be called into question.

Lawyers usually find ways to profit from the status quo, but they also usually profit from changes -- if only because lawyers are needed to propose, resist, explain, and litigate about new law. Lawyers are good at profiting from the law, whatever it may be. And a change that reduces profits in one way may increase them in another, so that lawyers often disagree with other lawyers about whether a proposal would be good or bad for the bar. The interests of one segment of the profession may conflict with those of another. In addition, as recent studies claim professionals seek prestige as well as profit, and promoting reform might increase the bar's prestige. [280]

1.179 However, it must be said that the Commission's experience in the course of this inquiry is that the Law Council of Australia, State and Territory law societies and bar associations, and individual lawyers participated genuinely, constructively and -- often in keeping with professional norms -- forcefully. Inevitably, the profession has disagreed with some of the Commission's findings and proposals, and supported many others. In consultations and submissions, it was not unusual for lawyers and legal professional associations to argue against their own self-interest (financial or otherwise) in areas related to reform of practice, procedure, costs and case management.

1.180 The Commission also welcomes the adoption by the NSW Bar Association of a new set of rules of professional ethics, which come into effect in March 2000, identifying the over-riding concerns of candour and fairness, ensuring that allegations are reasonably supported by evidence, discouraging the misuse of litigation and tactical manoeuvring, advising clients about alternatives to litigation, and not wasting court time and costs. [281]

1.181 This is encouraging, since many of the recommendations in this report are directed to the legal profession, including those related to developing uniform national professional practice standards, restraining costs, providing legal assistance, and supporting improvements to professional education.

The role of the educational sector

1.182 Chapter 2 of this report is devoted to matters of legal, professional and judicial education. As noted there, the Commission's view is that education plays a critical role in shaping the `legal culture', and thus in determining how well the system operates in practice. [282]

1.183 Lord Woolf has recognised that the success of his procedural reforms in England will rely in substantial part on changing the legal culture to make it is less bound up with notions of adversarialism and tactical game play. [283] Watson agrees, but has noted that `on what is to be the mechanism for changing lawyers' culture, he [Lord Woolf] is quite unclear'. [284]

1.184 Accordingly, the Commission has developed a set of recommendations expressly intended to lift legal education, including

1.185 These recommendations cut across the interests and responsibilities of many different bodies: the federal government (especially in terms of funding arrangements); universities, law schools, legal academics and law students; PLT institutions; legal professional associations and legal practitioners; courts and tribunals, judges, members and staff; admitting authorities; and continuing legal education providers.

1.186 These recommendations also move away, in some respects, from the approach taken in DP 62. For example, the Commission decided not to proceed at this time with a proposal for a national authority to accredit law school programs. [285] The Commission is aware that not all of those interested will have had an opportunity to comment on what is now the Commission's preferred approach prior to the publication of this report.

1.187 However, the recommendations in this report represent no more, and no less, than the Commission's considered advice to the federal Attorney-General -- and an invitation to all of the other key stakeholders to weigh and debate what we have proposed, and to proceed to implement effective reforms within their own areas of responsibility in the federal civil justice system.

The Commission received assistance from a wide variety of individuals and organisations who provided advice, comments and submissions and valuable administrative and technical assistance with our research.

The Commission extends thanks to the legal professional bodies, particularly the Law Council of Australia, law societies and bar associations, and practitioners who arranged and attended focus groups and meetings and provided commentary on draft chapters and proposals. In this regard special thanks are owed to those practitioners and litigants who responded to the Commission's survey questionnaires about cases and costs.

The Commission could not have undertaken its research or the inquiry without ongoing and extensive assistance from federal courts and tribunals. In particular, the Federal Court, the Family Court and the AAT permitted the Commission to conduct empirical research, collected and transported more than 3000 case files, and responded to repeated requests for information and comment. The Commission thanks the judges, tribunal members and court and tribunal administrators and staff who provided this assistance.

There are a number of people who provided their expertise and assistance on many occasions and in a variety of circumstances. The Commission expresses special thanks to Mr Warwick Soden and Mr John Mathieson of the Federal Court; Ms Margaret Harrison, Ms Angela Filippello and Mr Ron Eather of the Family Court; Ms Christine Harvey of the Law Council of Australia; Ms Kay Ransome, Ms Janet Cooper, Ms Rhonda Evans and Mr Chris Matthies of the AAT; Mr Robert Cornall of Victoria Legal Aid (now Secretary of the Commonwealth Attorney-General's Department); Ms Judith Ryan and Mr Ben Slade of Legal Aid New South Wales; Professor Rosemary Hunter of the Justice Research Centre; Professor Stephen Parker of Monash University; Professor Ian Scott; Ms Alison Stanfield; Mr Steve Mark NSW Legal Services Commissioner; Mr Christian Klettner of the Productivity Commission; Mr Chris Staniforth of Legal Aid ACT and National Legal Aid; Mr Richard Coates of NT Legal Aid; Mr Anthony Brown of Legal Aid Qld; costs consultants Ms Susan Pattison and Ms Deborah Vine-Hall; Ms Gabriel Fleming; Mr Ian Freckelton; Mr Hugh Selby; Mr Andras Markus; Ms Libby Haigh; Mr Julian Disney; Ms Tania Matruglio and Ms Gillian McAllister.

ENDNOTE

[1.] The complete terms of reference are set out at p 3.

[2.] Attorney-General's Department Justice statement A-G's Dept (Cth) Canberra 1995 (Justice statement). The Justice statement was the then government's response to the report of its advisory committee on access to justice: Access to Justice Advisory Committee Access to justice: An action plan AGPS Canberra 1994 (AJAC report).

[3.] Under the Australian Law Reform Commission Act 1996 (Cth) s 20.

[4.] The amended terms of reference are set out at p 5.

[5.] The nature, constitutional source, scope and development of federal jurisdiction is discussed in Australian Law Reform Commission Background Paper 1 Federal jurisdiction ALRC Sydney 1996 (ALRC BP 1). The Judiciary Act 1903 (Cth) effected a conferral of general federal jurisdiction on all State courts. The concept of `federal jurisdiction' refers to the exercise of the judicial power of the Commonwealth. Viewed in this context, federal and State tribunals do not exercise federal jurisdiction, because they are not courts for the purposes of chapter III of the Constitution. In relation to tribunals, the Commission understands its terms of reference to refer to the exercise of executive power granted to federal tribunals under Commonwealth legislation. On the nature of and major issues in Australian federal jurisdiction, see B Opeskin and F Wheeler (eds) The Australian federal judicial system Melbourne University Press (forthcoming).

[6.] Perhaps the only areas in which State jurisdiction has a largely unfettered remit are criminal law and (State) administrative law, though even in these areas the supervisory impact of the High Court cannot be overlooked. On the influence of federal administrative law principles on the various systems of administrative law in the States and Territories see the AJAC report, ch 13.

[7.] Sharing of jurisdiction is effected in accordance with the terms of the conferral or investiture of jurisdiction (accrued jurisdiction), through operation of the cross-vesting scheme and uniform, customised, legislative schemes, such as the Corporations Law and its mirror State legislation. The High Court recently held the cross-vesting scheme and the Corporations Law scheme were constitutionally invalid in so far as they purported to give the Federal Court jurisdiction to exercise State judicial power: Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spinks v Prentice (1999) 163 ALR 270.

[8.] The Federal Court is a superior court of record and a court of law and equity, created by the Federal Court of Australia Act 1976 (Cth) and derives its original jurisdiction from more than 100 Commonwealth statutes. See also ch 7 for a discussion on procedure and case management in the Federal Court.

[9.] The Family Court is a superior federal court exercising family law jurisdiction dealing with matrimonial and divorce cases which has a statutory jurisdiction arising principally from the Family Law Act 1975 (Cth). See also ch 8 on the Court's jurisdiction; ALRC and HREOC Seen and heard: priority for children in the legal process ALRC Sydney 1997, ch 15 (ALRC 84).

[10.] The AAT was established under the Administrative Appeals Tribunal Act 1975 (Cth) and has jurisdiction to review decisions conferred by a broad range of enactments. In exercising its jurisdiction, the Tribunal reviews a range of administrative decisions made by Ministers and government officers as well as decisions reviewed by the SSAT and the Veterans' Review Board (VRB). See ch 9 for discussion on the federal merits review tribunals.

[11.] See ch 6 and 8.

[12.] The term federal civil justice system is not without its difficulties. For example, on its face, such a term could also refer to federal administrative regulation, but the Commission uses the term with a more limited meaning.

[13.] The ADR working group was also assisted by expert advisors. Additional expert advisors were Geri Ettinger, Senior Member, AAT; Paul Lewis, Australian Dispute Resolution Association (ADRA); Professor Laurence Boulle, Bond University and Michael Redfern, solicitor.

[14.] ALRC and National Institute for Law Ethics and Public Affairs (NILEPA) Beyond the adversarial system: Changing roles and skills for courts, tribunals and practitioners Griffith University Brisbane 10-11 July 1997.

[15.] ALRC, Australian Competition and Consumer Commission (ACCC) and the Commonwealth Ombudsman The management of disputes involving the Commonwealth. Is litigation always the answer? Canberra 22 April 1999.

[16.] ALRC and NILEPA Education workshop Sydney 19 November 1998.

[17.] ALRC Issues Paper 20 Review of the adversarial system of litigation -- Rethinking the federal civil litigation system ALRC Sydney April 1997 (ALRC IP 20).

[18.] ALRC Issues Paper 21 Review of the adversarial system of litigation: Rethinking legal education and training ALRC Sydney August 1997 (ALRC IP 21).

[19.] ALRC Issues Paper 22 Review of the adversarial system of litigation: Rethinking family law proceedings ALRC Sydney November 1997 (ALRC IP 22).

[20.] ALRC Issues Paper 23 Technology -- What it means for federal dispute resolution ALRC Sydney March 1998 (ALRC IP 23).

[21.] ALRC Issues Paper 24 Review of the adversarial system of litigation: Federal tribunal proceedings ALRC Sydney 1998 (ALRC IP 24).

[22.] ALRC Issues Paper 25 Review of the adversarial system of litigation: ADR -- Its role in federal dispute resolution Sydney June 1998 (ALRC IP 25).

[23.] ALRC Background Paper 1 Federal jurisdiction ALRC Sydney 1996 (ALRC BP 1).

[24.] ALRC Background Paper 2 Alternative or assisted dispute resolution ALRC Sydney 1996 (ALRC BP 2).

[25.] ALRC Background Paper 3 Judicial and case management ALRC Sydney 1996 (ALRC BP 3).

[26.] ALRC Background Paper 4 The unrepresented party ALRC Sydney 1996 (ALRC BP 4).

[27.] ALRC Background Paper 5 Civil litigation practice and procedure ALRC Sydney 1996 (ALRC BP 5).

[28.] ALRC Background Paper 6 Experts ALRC Sydney 1999 (ALRC BP 6).

[29.] ALRC Discussion Paper 62 Review of the federal civil justice system ALRC Sydney 1999 (ALRC DP 62).

[30.] See, in particular, ch 9.

[31.] ALRC IP 21.

[32.] T Matruglio & G McAllister Part one: The status of data collection and evaluation research in the Federal Court, the Family Court and the Administrative Appeals Tribunal ALRC Sydney January 1998; T Matruglio & G McAllister Part two: Data and technology needs of courts and tribunals: Background information ALRC Sydney February 1998.

[33.] T Matruglio & G McAllister Part one: Empirical information about the Family Court of Australia ALRC Sydney February 1999; T Matruglio Part two: The costs of litigation in the Family Court of Australia ALRC Sydney June 1999; T Matruglio & G McAllister Part one: Empirical information about the Federal Court of Australia ALRC Sydney June 1999; T Matruglio Part two: The costs of litigation in the Federal Court of Australia ALRC Sydney 1999.

[34.] ALRC Part one: Empirical information about the Administrative Appeals Tribunal ALRC Sydney June 1999; ALRC Part two: Empirical information about the Administrative Appeals Tribunal ALRC Sydney June 1999.

[35.] Justice Research Centre Family Court research part one: Empirical information about the Family Court of Australia ALRC Sydney June 1999; Justice Research Centre Family Court research part two: The costs of litigation in the Family Court of Australia ALRC Sydney June 1999; Justice Research Centre Family Court research part three: Comparison with the report on `The review of scales of legal professional fees in federal jurisdictions' by Professor Philip Williams et al ALRC Sydney June 1999.

[36.] T Fry Costs of litigation in the Family Court of Australia and in the Federal Court of Australia ALRC Sydney November 1999.

[37.] See ALRC DP 62 ch 4, ch 12; and ch 9 of this report.

[38.] See para 6.66.

[39.] G Watson `From an adversarial to a managed system of litigation: A comparative critique of Lord Woolf's interim report' in R Smith (ed) Achieving civil justice Legal Action Group London 1995, 79, [82.]See also I Scott `Procedural law and judicial administration' (1987) 12 The Justice System Journal 67, 77-84; M Rosenberg `Civil justice research and civil justice reform' (1981) 15 Law & Society Review 473, 481.

[40.] M Galanter `News from nowhere: The debased debate on civil justice' (1993) 71(1) Denver University Law Review 77, 99.

[41.] id 100.

[42.] id 100; see also M Chesterman and D Weisbrot `Legal scholarship in Australia' (1987) 50 Modern Law Review 709, 723.

[43.] M Galanter `News from nowhere: The debased debate on civil justice' (1993) 71(1) Denver University Law Review 77, 101.

[44.] AJAC report, para 17.49-17.68.

[45.] id 412, action 17.2.

[46.] Steering Committee for the Review of Commonwealth/State Service Provision Report on government services 1999 -- Vol 1: Education, health, justice AusInfo Canberra 1999 (Productivity Commission report 1999).

[47.] R Mohr et al `Performance measures for Australian courts' (1997) 6(3) Journal of Judicial Administration 156, 158-9.

[48.] See D Pearce et al Australian law schools: A discipline assessment Vol 2, Commonwealth Tertiary Education Commission 1987, para 9.180-9.185; and M Chesterman and D Weisbrot `Legal scholarship in Australia' (1987) 50 Modern Law Review 709. The same is apparently true in England: see I Scott `Procedural law and judicial administration' (1987) 12 The Justice System Journal 67, 79.

[49.] Further information about the SPIRT grant scheme may be found on the homepage of the Commonwealth Department of Education, Training and Youth Affairs (DETYA), at <http://www.detya.gov.au/highered/research/grants/grantap1.htm#spirt>.

[50.] D Kemp `$53 million for university-industry research' Media release 27 October 1999 <http://www.detya.gov.au/ministers/kemp/oct99/k11510-271099.htm> (6 January 2000).

[51.] A good example of an existing initiative in this area is the SPIRT grant in relation to family law research: H Rhoades, M Harrison and R Graycar Interim report. The Family Law Reform Act 1995: Can changing legislation change legal culture, legal practice and community expectations? University of Sydney and Family Court of Australia Sydney April 1999; also see Family Court of Australia Management Information and Research Office of the Chief Executive 1998 Study of the effects of legal aid cuts on the Family Court of Australia and its Litigants final report Family Court Sydney December 1998; J Dewar et al The impact of changes in legal aid on criminal and family law practice in Queensland. A research report commissioned by the Queensland Law Society and the Family Law Practitioners' Association Griffith University 1998.

[52.] See para 2.77, 2.115-2.128 and rec 6.

[53.] G Brennan `Key issues in judicial administration' Paper Fifteenth Annual Conference Australian Institute of Judicial Administration Wellington 20-22 September 1996.

[54.] From 1993-94 to 1997-98, the number of lodgments in civil proceedings in State and Territory Supreme Courts and in the Federal Court, has been relatively stable, except for the Supreme Court of the Northern Territory, where there has been a significant increase over that time: Productivity Commission report 1999, table 7A.1.

[55.] See ch 6-9.

[56.] See H Gibbs Sydney Morning Herald 10 April 1984, 6, quoted in D Weisbrot Australian lawyers Longman Cheshire Melbourne 1990, 245; Senate Standing Committee on Legal and Constitutional Affairs Discussion Paper No 6 The cost of legal services and litigation: the courts and the conduct of litigation AGPS Canberra 1992, para 1.1; The cost of justice: Foundations for reform AGPS Canberra 1993, 4 in the AJAC report, para 1.3; A Gleeson `Access to justice' (1992) 66 Australian Law Journal 270, 274. See also para 4.8-4.19, 5.21-5.25.

[57.] R Hunter Family law case profiles Justice Research Centre Sydney 1999, para 299-303.

[58.] See para 4.51-4.18 and 5.21 .

[59.] Law Reform Commission of Western Australia Review of the criminal and civil justice system in Western Australia final report LRCWA Perth 1999, para 23.1.

[60.] See ALRC DP 62 ch 3.

[61.] See ALRC DP 62 ch 4.

[62.] See ALRC DP 62 ch 5.

[63.] See ALRC DP 62 ch 6-7.

[64.] See ALRC DP 62 ch 8.

[65.] See ALRC DP 62 ch 9.

[66.] See ALRC DP 62 ch 10. See also G Watson `From an adversarial to a managed system of litigation: A comparative critique of Lord Woolf's interim report' in R Smith (ed) Achieving civil justice Legal Action Group London 1995.

[67.] See ALRC DP 62 ch 11.

[68.] See ALRC DP 62 ch 12.

[69.] See ALRC DP 62 ch 13.

[70.] R Sackville `The civil justice system -- the process of change' Paper Beyond the Adversarial System Conference Brisbane 10-11 July 1997, 8.

[71.] Law Council Submission 126 and Submission 375.

[72.] Family Court Submissions 264, 287, 348, 351, 383.

[73.] Interview with the Chief Justice of the Family Court Alistair Nicholson and Professor David Weisbrot, President of the Australian Law Reform Commission Morning with Jon Faine 3LO 26 October 1999 Transcript, 2.

[74.] Family Court Submission 348. The complex issues associated with the provision of legal assistance, the causes, outcomes and impact of the perceived rise in unrepresented parties are dealt with in ch 5, see particularly para 5.11, 5.51-5.54, 5.63-5.67, 5.71-5.93, 5.147-5.157. There is no empirical research to establish the rise in numbers -- it is a qualitative assessment, documented by courts and tribunals. Figures on the numbers of unrepresented parties have not been kept by courts until recently. Figures show significant numbers currently in certain jurisdictions -- around 18% of Federal Court cases, 41% of Family Court cases and 33% of AAT cases in the Commission's research samples involved one or more unrepresented or partially represented parties: see para 5.7 and 6.139. The Commission recommends that better data on unrepresented litigants be collected -- see rec 39 and 40. Chief Justice Murray Gleeson has noted that it would be `instructive' for courts to compile figures on cases where one or both parties are unrepresented: M Gleeson `The state of the judicature' Speech Australian Legal Convention Canberra 10 October 1999.

[75.] ALRC DP 62 para 9.49-9.53, 11.39-11.42, 11.165-11.173, 12.9-12.23, 12.212-12.23.

[76.] M Gleeson `The state of the judicature' Speech Australian Legal Convention Canberra 10 October 1999.

[77.] M Lavarch `Fighting the fiends from finance' in H Stacy and M Lavarch (eds) Beyond the adversarial system Federation Press 1999, 10, 14 and 17.

[78.] id 13.

[79.] id 14.

[80.] Government, legal aid commissions, courts and tribunals have recently funded research to measure legal need, to measure and evaluate the costs, outcomes and processes of private and legal aid family cases: see para 5.81; R Hunter Family law case profiles JRC Sydney June 1999; JRC Research conducted for the Australian Law Reform Commission -- Part two: The costs of litigation in the Family Court of Australia JRC June 1999; and the experience of unrepresented parties: H Gamble and R Mohr `Litigants in person in the Federal Court of Australia and the Administrative Appeals Tribunal: A research note' Paper 16th AIJA Conference Melbourne 4-6 September 1998; J Dewar et al The impact of changes in legal aid on criminal and family law practice in Queensland Faculty of Law Griffith University 1998. At the same time experimental or pilot initiatives have been set up to consider ways to assist parties with legal disputes and manage difficult cases in cost effective ways -- for example, see discussion of clinical education programs and their funding at para 5.203, the Monash-Oakleigh Legal Service's Family Law Assistance Program in Victoria at para 5.205 and the Magellan Project of the Family Court at para 8.55. Such research will provide more accurate measures of legal need, legal costs and effective and appropriate assistance and case management practices.

[81.] See ch 5.

[82.] M McHugh `The growth of legislation and litigation' (1995) 69 Australian Law Journal 37; see also G Gibson The cancer in litigation Blake Dawson Waldron Melbourne 1997.

[83.] See para 4.56-4.61; rec 28.

[84.] In the case file survey, and in consultations and submissions.

[85.] These matters are dealt with more fully in ch 6, 8.

[86.] I Scott `Is court control the key to reduction in delays?' (1983) 57 Australian Law Journal 16, 18.

[87.] Australia, England, the United States, France, Italy, Spain, Portugal, Brazil, Greece, Japan, Germany and the Netherlands.

[88.] A Zuckerman `Justice in crisis: Comparative dimensions of civil procedure' in A Zuckerman (ed) Civil justice in crisis: Comparative perspectives of civil procedure Oxford University Press 1999, 50.

[89.] See para 8.15 regarding the heavy expenditure on administrative staff in the Family Court. See ch 5 on cost of effective ways to provide legal assistance.

[90.] For an account of the thinking behind the original reference, see M Lavarch `Fighting the fiends from finance' in H Stacy and M Lavarch (eds) Beyond the adversarial system Federation Press Sydney 1999, 10-20.

[91.] See ch 5-9.

[92.] A Zuckerman `Justice in crisis: Comparative dimensions of civil procedure' in A Zuckerman (ed) Civil justice in crisis: Comparative perspectives of civil procedure Oxford University Press 1999, 51.

[93.] G Watson `From an adversarial to a managed system of litigation: A comparative critique of Lord Woolf's interim report' in R Smith (ed) Achieving civil justice Legal Action Group London 1995, 63.

[94.] J Resnik `Precluding appeals' (1985) 70(4) Cornell Law Review 603, 624. The example cited to support this is `discovery', a process imported to deal with adversarial tactics which has itself become a litigation tactic. See also E Sward `Values, ideology and the evolution of the adversary system' (1989) 64 Indiana Law Journal 301, 328; R Millar `The mechanism of fact-discovery: A study in comparative civil procedure' (1937) 32 Illinois Law Review 261, 261-76.

[95.] T Cromwell Dispute resolution in the twenty-first century Canadian Bar Association -- Systems of Civil Justice Task Force Ottawa January 1996, 2.

[96.] Ontario Civil Justice Review Civil justice review: First report Court of Justice and Ministry of the Attorney-General Toronto 1995; Ontario Law Reform Commission Study paper on prospects for civil justice Ontario Law Reform Commission Toronto 1995; Ontario Law Reform Commission Rethinking civil justice: Research studies for the civil justice review Vols 1 and 2 Ontario Law Reform Commission Toronto 1996.

[97.] Canadian Bar Association Systems of civil justice task force report CBA Toronto August 1996 and Canadian Bar Association Systems of civil justice task force -- Civil justice: Reform for the 21st century Canadian Bar Association Systems of Civil Justice Task Force Conference Toronto February 1996.

[98.] Ontario Legal Aid Review Report of the Ontario Legal Aid Review: A blueprint for publicly funded legal services Queen's Printer Ontario 1998 <http://www.attorneygeneral.jus.gov.on.ca/olar/> (27 July 1999).

[99.] Lord Woolf Access to justice: Interim report to the Lord Chancellor on the civil justice system in England and Wales Lord Chancellor's Dept London 1995; Lord Woolf Access to justice: Final report to the Lord Chancellor on the civil justice system in England and Wales HMSO London 1996; Lord Woolf Access to justice draft civil proceedings rules HMSO London 1996; P Middleton Report to the Lord Chancellor by Sir Peter Middleton GCB Lord Chancellor's Dept London 1997; G Bowman Review of the Court of Appeal (Civil Division) -- Report to the Lord Chancellor Lord Chancellor's Dept London 1997 (Bowman report). Lord Chancellor's Department consultation and research papers are available at <http://www.open.gov.uk/lcd/lcdhome.htm> examples include T Goriely and T Williams Resolving civil disputes: Choosing between out-of-court schemes and litigation. A review of the literature Lord Chancellor's Dept London 1997 Research Series No 3/97; R Dingwall et al Rationing and cost-containment in legal services Lord Chancellor's Dept London 1998 Research Series No1/98; R Baldwin Regulating legal services Lord Chancellor's Dept London 1997 Research Series No 5/97; M Hope Expenditure on legal services Lord Chancellor's Dept London 1997 Research Series No 9/97; T Goriely et al Costing fast track procedures through hypothetical studies Lord Chancellor's Dept London 1998 Research Series No 4/98.

[100.] eg J Kakalik et al Just, speedy and inexpensive? An evaluation of judicial case management under the Civil Justice Reform Act RAND Institute for Civil Justice Santa Monica 1996.

[101.] National Center for State Courts Examining the work of state courts NCSC Williamsburg Virginia 1994; National Center for State Courts Trial court performance standards and measurement system NCSC Williamsburg Virginia 1997.

[102.] American Bar Association ABA Blueprint for improving the civil justice system: Report of the American Bar Association Working Group on Civil Justice System Proposals ABA Chicago February 1992; American Bar Association Saving our system: A national overview of the crisis in America's system of justice ABA Chicago 1993; American Bar Association Just solutions: Seeking innovation and change in the American justice system ABA Chicago 1994.

[103.] Judicial Conference of the United States Long range plan for the federal courts Long Range Planning Office, Administrative Office of the United States Courts Washington DC December 1995.

[104.] The AJAC report considered wide ranging proposals for reform covering equality before the law, the legal services market and the regulation of legal costs, legal aid reforms, dispute resolution outside of courts, court reforms and the accessibility and harmonisation of legislation. Many elements of the report are directly relevant to the Commission's inquiry and are canvassed where appropriate.

[105.] Senate Standing Committee on Legal and Constitutional Affairs Background Paper Cost of legal services and litigation: Access to legal services: The role of market forces AGPS Canberra 1992; Background Paper Cost of legal services and litigation: A survey of reforms to the English legal profession AGPS Canberra 1991; Discussion Paper No 1 Cost of legal services and litigation: Introduction to the issues AGPS Canberra 1991; Discussion Paper No 3 Cost of legal services and litigation: Contingency fees AGPS Canberra 1991; Discussion Paper No 4 Cost of legal services and litigation: Methods of dispute resolution AGPS Canberra 1991; Discussion Paper No 6 Cost of legal services and litigation: The courts and the conduct of litigation AGPS Canberra 1992; Discussion Paper No 7 Cost of legal services and litigation: Legal aid: `for richer for poorer' AGPS Canberra 1992; Discussion Paper No 8 Cost of legal services and litigation: The legal profession: a case for microeconomic reform AGPS Canberra 1992; The cost of justice: First report -- foundations for reform AGPS Canberra 1993; The cost of justice: Second report -- checks and imbalances AGPS Canberra 1993; Senate Legal and Constitutional References Committee Inquiry into the Australian legal aid system -- First report Senate Printing Unit Canberra March 1997; Inquiry into the Australian legal aid system -- Second report Senate Printing Unit Canberra June 1997; Inquiry into the Australian legal aid system -- Third report Senate Printing Unit Canberra June 1998. In relation to family law see eg: Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act The Family Law Act 1975: Aspects of its Operation and Interpretation AGPS Canberra 1992; House of Representatives Standing Committee on Legal and Constitutional Affairs report To have and to hold: Strategies to strengthen marriage and relationships Canberra June 1998.

[106.] eg R Cranston et al Delays and efficiency in civil litigation AIJA Melbourne 1985; B Cairns `The use of discovery and interrogatories in civil litigation' AIJA Melbourne 1990; H Powles et al The litigant in person -- A discussion paper AIJA Melbourne 1993; P Williams et al The cost of civil litigation before the intermediate courts of Australia AIJA Melbourne 1992; T Church and P Sallmann Governing Australia's courts AIJA Melbourne 1991; P Lane Court management information -- A discussion paper AIJA Melbourne 1993; AIJA `Case management in the higher courts' Papers AIJA Melbourne 1995; S Parker Courts and the public AIJA Melbourne 1998; AIJA Technology for justice report AIJA Melbourne 1999; I Freckelton et al Australian judicial perspectives on expert evidence: An empirical study AIJA Melbourne 1999, 21-22. AIJA holds annual conferences that focus on case management, court technology and broader issues relating to courts and tribunal administration.

[107.] eg ARC Better decisions: Review of Commonwealth merits review tribunals AGPS Canberra 1995 (ARC 39); ARC Access to administrative review: Provision of legal and financial assistance in administrative law matters AGPS Canberra 1988 (ARC 30); ARC Access to administrative review by members of Australia's ethnic communities AGPS Canberra 1991 (ARC 34).

[108.] The FLC undertakes policy advice and research in relation to family law. FLC publications relevant to the inquiry include: Family Law Council Family mediation AGPS Canberra 1992; Involving and representing children in family law AGPS Canberra 1996; Family law appeals and reviews AGPS Canberra 1996; Child contact orders: Enforcement and penalties AGPS Canberra 1998.

[109.] NADRAC was established in 1995 and acts as an advisory body to the federal Attorney-General on issues relating to the regulation and evaluation of ADR processes and procedures. Relevant reports include: NADRAC Primary dispute resolution in family law: A report to the Attorney-General on Part 5 of the Family Law Regulations NADRAC Canberra March 1997; NADRAC Alternative dispute resolution definitions NADRAC Canberra March 1997; NADRAC Discussion Paper Issues of fairness and justice in alternative dispute resolution NADRAC Canberra November 1997.

[110.] Marsden Jacob Associates et al Survey of small business attitudes and experience in disputes and their resolution -- Results, implications and directions A-G's Dept (Cth) Canberra 1999 and Marsden Jacob Associates et al Survey of small business attitudes and experience in disputes and their resolution -- Report A-G's Dept (Cth) Canberra 1999; P Williams et al Report of the review of scales of legal professional fees in federal jurisdictions A-G's Dept (Cth) Canberra 1998 (Williams Report).

[111.] Law Reform Commission of Western Australia Review of the civil and criminal justice system -- Final report LRCWA Perth 1999. There have also been a number of consultation papers on civil proceedings on the advantages and disadvantages of adversarial proceedings; costs; pleadings; the role of the legal profession; ADR; and expert evidence. Copies of the individual consultation drafts are available from the LRCWA website at <http://www.wa.gov.au/lrc> (1 August 1999). See also NSWLRC Scrutiny of the legal profession: Complaints against lawyers NSWLRC Sydney 1993 (NSWLRC 70); Victorian Law Reform Committee Report Technology and the law Government Printer Melbourne 1999; Law Society of New South Wales ADR Task Force Report Law Society of NSW Sydney August 1999.

[112.] See Dept of Justice (Qld) Uniform civil procedure rules for the Supreme Court, District Court & Magistrates Court -- Consultation draft Dept of Justice Brisbane 1997 and the work of the Queensland Litigation Reform Commission. See also G Davies and S Sheldon `Some proposed changes in civil procedure: Their practical benefits and ethical rationale' (1993) 3 Journal of Judicial Administration 111; G Davies `Civil justice reform in Australia' in A Zuckerman (ed) Civil justice in crisis: Comparative perspectives of civil justice Oxford University Press 1999, 166-203; Uniform Civil Procedure Rules 1999 (Qld).

[113.] Recommendations have been forwarded to the Victorian Attorney-General: Civil Justice Review Project Consultation Sydney 26 August 1997. The Commission consulted with the project director and researchers.

[114.] Justice Research Centre `Rolling lists in the Family Court -- Sydney registry' Briefing Note JRC Sydney 1996; M Delaney and T Wright Plaintiffs' satisfaction with dispute resolution processes: Trial arbitration, pre-trial conference and mediation JRC Sydney 1997; C Guest and T Murphy Economic evaluation of differential case management JRC Sydney 1995; T Matruglio and J Baker An implementation evaluation of differential case management: A report on the DCM program in the Common Law Division of the Supreme Court of New South Wales JRC Sydney 1995; T Matruglio Plaintiffs and the process of litigation: An analysis of the perceptions of plaintiffs following their experience of litigation JRC Sydney 1994; J Baker Who settles and why? A study of the factors associated with the stage of case disposition JRC Sydney 1994; T Matruglio So who does use the courts? JRC Sydney 1993; D Worthington and J Baker The cost of civil litigation: Current charging practices in New South Wales and Victoria JRC Sydney 1993; T Matruglio Researching alternative dispute resolution JRC Sydney 1992; R Hunter Family law case profiles JRC Sydney 1999; Justice Research Centre Family Court research part one: Empirical information about the Family Court of Australia ALRC Sydney June 1999; Justice Research Centre Family Court research part two: The costs of litigation in the Family Court of Australia ALRC Sydney June 1999; Justice Research Centre Family Court research part three: Comparison with the report on `The review of scales of legal professional fees in federal jurisdictions' by Professor Philip Williams et al ALRC Sydney June 1999. The Commission also consulted with the project director and researchers on the JRC's evaluation of the Federal Court's individual docket system of case management (IDS): JRC Consultation 12 October 1999. See also para 7.4-7.5, 7.16-7.17.

[115.] Council of Chief Justices of Australia and New Zealand Electronic appeals project -- Final report May 1998 <http://www.ccj.org/reports/Final%20Report.htm> (27 July 1999).

[116.] The Judicial Conference holds or arranges meetings, conferences and seminars and publishes papers in respect of topics concerning the judiciary: see <http://www.law.monash.edu.au/JCA/> (17 January 2000). The Judicial Conference and the AIJA arranged for the preparation of C Roper Proposed Australian Judicial College: Discussion paper Centre for Legal Education Sydney September 1999.

[117.] eg Law Council Blueprint for the structure of the legal profession -- A national market for legal services Law Council Canberra 1994.

[118.] The Law Society of NSW established an Access to Justice Task Force which produced a report in 1998: Law Society of NSW Access to Justice: Final report Law Society of NSW Sydney 1998.

[119.] A number of the Commission's earlier reports are relevant to this inquiry: ALRC Costs shifting -- who pays for litigation ALRC Sydney 1995 (ALRC 75); ALRC For the sake of the kids: Complex contact cases and the Family Court ALRC Sydney 1995 (ALRC 73); ALRC and HREOC Seen and heard: Priority for children in the legal process ALRC Sydney 1997 (ALRC 84); ALRC Legal risk in international transactions ALRC Sydney 1996 (ALRC 80), ALRC Beyond the door-keeper: Standing to sue for public remedies ALRC Sydney 1996 (ALRC 78); ALRC Equality before the law: Justice for women ALRC Sydney 1994 (ALRC 69); ALRC Equality before the law: Women's equality ALRC Sydney 1994 (ALRC 69); ALRC Grouped proceedings in the Federal Court AGPS Canberra 1988 (ALRC 46); ALRC Evidence AGPS Canberra 1987 (ALRC 38).

[120.] E Lind et al `In the eyes of the beholder: Tort litigants' evaluation of their experience in the civil justice system' (1990) 24 Law and Society Review 953; R Macdonald `Study paper -- Prospects for civil justice' in Ontario Law Reform Commission Study paper on prospects for civil justice Ontario Law Reform Commission Ontario 1995, 93.

[121.] On litigant dissatisfaction and complaints against judges see para 2.273-2.297.

[122.] See para 4.6 and ALRC DP 62 para 4.28-4.31.

[123.] R Macdonald `Prospects for civil justice' in Ontario Law Reform Commission Study paper on prospects for civil justice Ontario Law Reform Commission 1995, 15-16. See also on litigant values: R Macdonald `Access to justice and law reform' (1995) 10 Windsor Yearbook of Access to Justice 287; Alberta Law Reform Institute Research Paper 19 Dispute resolution: A directory of methods, projects and resources ALRI Edmonton 1990, 40; T Matruglio Plaintiffs and the process of litigation Civil Justice Research Centre Sydney 1994; Ontario Law Reform Commission Rethinking civil justice: Research studies for the civil justice review vol 1 OLRC Toronto 1996, 5; National Consumer Council Seeking civil justice: A survey of people's needs and experiences National Consumer Council London 1995; M Winfield Far from wanting their day in court: Civil disputants in England and Wales National Consumer Council London 1996.

[124.] See ch 9, fn 39.

[125.] Family Court judges Consultation 28 September 1999.

[126.] Note for example the following comment.

Most lawyers will recognise a conflict exists between, on the one hand, cheap and speedy resolution of a dispute and, on the other, achieving justice, according to law, as nearly as it is possible to do ... we do argue that most litigants would prefer a `Holden' system to a `Rolls-Royce' one; and that the system we now have is a `Rolls-Royce' one. Accordingly we would wish to simplify and shorten the litigation process, even at the cost of less perfect justice: G Davies and J Leiboff `Reforming the civil litigation system: Streamlining the adversarial framework' (1995) 25 Queensland Law Society Journal 111, 114.

[127.] M Gleeson `Individualised justice -- The holy grail' (1995) 69 Australian Law Journal 421, 430.

[128.] ibid; G Gibson The cancer in litigation Blake Dawson Waldron Melbourne 1997.

[129.] See ch 6.

[130.] Victoria Legal Aid Consultation Melbourne 26 August 1999.

[131.] A Zuckerman `Justice in crisis: Comparative dimensions of civil procedure' in A Zuckerman (ed) Civil justice in crisis: Comparative perspectives of civil procedure Oxford University Press 1999, 48. Zuckerman notes also that the Portuguese code of civil procedure contains a `principle of procedural economy'.

[132.] J Rawls A theory of justice Belknap Press Cambridge Massachusetts 1971.

[133.] R Dworkin A matter of principle Harvard University Press Cambridge Massachusetts 1985.

[134.] A Sen On ethics and economics Blackwell Oxford 1987.

[135.] R Nozick Anarchy, state and Utopia Basic Books New York 1977; see also J Wolff Robert Nozick: Property, justice and the minimal state Stanford University Press Stanford California 1991.

[136.] J Roemer Theories of distributive justice Harvard University Press Cambridge Massachusetts 1996.

[137.] id 51.

[138.] Unlike the AAT some `portfolio tribunals' have funding arrangements with federal agencies.

[139.] Within their respective legislative frameworks, of course.

[140.] On the values and perceptions of family law litigants concerning court facilities and services see Family Court of Australia Draft survey of family client perceptions of service quality Family Court of Australia Canberra March 1999; also see S Parker Courts and the public AIJA Melbourne 1998 which discusses determining and meeting the needs of the public (ch 4-5).

[141.] On the importance of court design and court facilities, see M Black Speech Representing justice conference Wollongong 22 June 1998.

[142.] M Galanter `The federal rules and the quality of settlements: A comment on Rosenberg's, "The Federal Rules of Civil Procedure in action"' (1989) 137 University of Pennsylvania Law Review 2231, 2232-3.

[143.] These are alternative to adjudication, but statistically represent the norm.

[144.] M Galanter `The federal rules and the quality of settlements: A comment on Rosenberg's, "The Federal Rules of Civil Procedure in action"' (1989) 137 University of Pennsylvania Law Review 2231, 2232.

[145.] See ch 6, 8.

[146.] NSW Bar Assoc Submission 88. Also see ch 6. Research indicates that there is an optimal settlement rate for ADR (83%): see para 5.89.

[147.] See rec 1.

[148.] M Galanter `The radiating effects of courts' in K Boyum and L Matheu (eds) Empirical theories about courts Longman New York 1983, 121.

[149.] O Fiss `Foreword: The forms of justice' (1979) 93 Harvard Law Review 1, 30.

[150.] T Cromwell Dispute resolution in the twenty-first century Canadian Bar Association -- Systems of Civil Justice Task Force Ottawa January 1996, 80.

[151.] G Brennan `Farewell to the Honourable Sir Gerard Brennan AC, KBE' (1998) 5 Australian Bar Gazette 1, 7.

[152.] R Abella `The challenge of change -- Family law in the crucible' edited version of speech to 8th National Law Conference Hobart 24-28 October 1998 published in (1999) 13(3) Australian Family Lawyer 1, 2.

[153.] . Family Law Act 1975 (Cth) s 60B(1).

[154.] T Brown et al Monash University IP Submission 47 to ALRC 84.

[155.] R Sherwood `The economic importance of judges' Paper International Judges Conference 1999; E Mansfield Intellectual property protection, foreign direct investment, and technology transfer Discussion Paper 19 International Finance Corporation of the World Bank Group 1994; E Mansfield Intellectual property protection, direct investment and technology: Germany, Japan, and the United States Discussion Paper 27 International Finance Corporation of the World Bank Group 1995. Also see Arthur Robinson Submission 189; Australian Corporate Lawyers Association Submission 70.

[156.] R Sherwood `The economic importance of judges' Paper International Judges Conference 1999; E Mansfield Intellectual property protection, foreign direct investment, and technology transfer Discussion Paper 19 International Finance Corporation of the World Bank Group 1994, 2.

[157.] E Mansfield Intellectual property protection, foreign direct investment, and technology transfer Discussion Paper 19 International Finance Corporation of the World Bank Group 1994; E Mansfield Intellectual property protection, direct investment and technology: Germany, Japan, and the United States Discussion Paper 27 International Finance Corporation of the World Bank Group 1995.

[158.] Corporate counsel Consultation Melbourne 14 January 1998.

[159.] ALRC `Judges the key to improving the federal civil justice system' Media release 20 August 1999.

[160.] The Hon J Spigelman 'Opening of the law term dinner' Speech 1 February 1999 <http://www.agd.nsw.gov.au/sc/sc.nsf/pages/sp_002> (28 July 1999).

[161.] ACCC Submission 396.

[162.] J Leubsdorf `The myth of civil procedure reform' in A Zuckerman (ed) Civil justice in crisis: Comparative perspectives of civil procedure Oxford University Press 1999, 55.

[163.] id 67. See also R Bush `Dispute resolution alternatives and the goals of civil justice: Jurisdictional principles for process choice' [1984] Wisconsin Law Review 893, 908-924.

[164.] The Family Court stated that

The Commission by avoiding its primary task has missed what would have been a significant opportunity to examine the adversarial nature of the system in a family law context.

The primary task was said to be to focus on the adversarial system: Family Court Submission 348.

[165.] eg W Pizzi and L Marafioti `The new Italian Code of Civil Procedure: The difficulties of building an adversarial trial system on a civil law foundation' (1992) 17 Yale Journal of International Law 1, 22-3; M Hooker Legal pluralism Clarendon Press Oxford 1975.

[166.] Law Council Submission 375.

[167.] Law Reform Commission of Western Australia Review of the criminal and civil justice system in Western Australia -- Final report LRCWA Perth 1999, para 6.2.

[168.] The Commission has no reference to consider criminal proceedings.

[169.] Lord Woolf Access to justice: Interim report to the Lord Chancellor on the civil justice system in England and Wales Lord Chancellor's Dept London 1995, 7.

[170.] See G Watson `From an adversarial to a managed system of litigation: A comparative critique of Lord Woolf's interim report' in R Smith Achieving justice Legal Action Group London 1995, 65.

[171.] See para 6.3.

[172.] The Family Court submitted that

One problem which causes complaints and confusion for many who understand it is that family law is thought to be highly adversarial in nature. While this may be correct in relation to a minority of cases it is far from true of the majority and children's cases in particular have non adversarial features: Family Court Submission 348.

[173.] For a critical analysis of the use of these terms see M Damaska `Structures of authority and comparative criminal procedure' (1975) 84 Yale Law Journal 480. See also ALRC IP 20, ch 2, which summarises the features taken to be general characteristics of adversarial and non adversarial models. A number of submissions to the Commission referred to the tendency to oversimplification, vagueness and misunderstanding in debates about the relative merits of adversarial and inquisitorial systems.

Epithets such as `adversarial' and `inquisitorial', though convenient, can be misleading when applied generally to common law and civil law systems: B McKillop Submission 59.

The reason that the label `adversarial' is unhelpful is that it is simplistic and inaccurate in that there are already a considerable number of inquisitorial features in our system: Law Council Submission 30.

Particularly in matters relating to children, proceedings in the Family Court are now conducted so differently from the adversarial model, that it is unhelpful and potentially misleading to conduct an enquiry ... By moving from a position which categorises those proceedings, inaccurately, as adversarial, or even, `modified adversarial: B Warnick Submission 147.

The adversary system or adversarial system is a vague description of certain types of behaviours and attitudes exhibited during conflict leading up to a court hearing. It is important to acknowledge that no conflict management system embodies all the features of a pure `adversary system' all of the time: J Wade Submission 86.

[174.] In England the common law, `adversarial' system developed in the Middle Ages and was exported to countries such as Australia, Canada, New Zealand and the United States through colonisation. In Europe, civil law inquisitorial systems had their basis in Roman law, the Napoleonic Codes (1804-1811) in the French civil law system and the German Civil Code (1896) in Germany. Civil law systems in Europe and Asia have generally styled themselves on either the French or German model.

[175.] `In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries': Jones v National Coal Board [1957] 2 QB 55, 63 (Denning LJ).

[176.] Law Council Submission 196.

[177.] Macquarie Concise Dictionary 2nd ed defines `adversary' as an `unfriendly opponent; an opponent in a contest; a contestant'; R Eggleston `What is wrong with the adversary system?' (1975) 49 Australian Law Journal 428, 429.

[178.] R Eggleston `What is wrong with the adversary system?' (1975) 49 Australian Law Journal 428, 429; Denning LJ in Jones v National Coal Board [1957] 2 QB 55, 63; J Hunter and K Cronin Evidence, advocacy and ethical practice Butterworths Sydney 1995, 50; A Crouch `The way, the truth and the right to interpreters in court' (1985) 59 Law Institute Journal 687, 690.

[179.] Law Council Submission 126.

[180.] Law Council Submission 196.

[181.] A view confirmed by the Law Reform Commission of Western Australia Review of the civil and criminal justice system -- Consultation draft: The advantages and disadvantages of the adversarial system in civil proceedings LRCWA Perth November 1998, 1. The Commission deals with revisions to practice standards to limit excessive partisanship and adversarial tactics in ch 3. See para 3.30-3.41.

[182.] The common law imperative is `that justice should not only be done, but should manifestly and undoubtedly be seen to be done': R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259; [1923] All ER 233, 234 (Lord Hewart CJ). See also A Amerasinghe `Judicial independence -- Some core issues' (1997) 7 Journal of Judicial Administration 75. Judge Glomb of the German District Court has commented on German civil procedures: `It will be apparent that the judge virtually knows the result of the case before the hearing': K Glomb `Roles and skills of a German judge' Paper Beyond the adversarial system Conference Brisbane 10-11 July 1997, 3. On impartiality issues in civil code systems, see: C Lécuyer-Thieffry `France', ch 6 in C Campbell (ed) International civil procedures Center for International Legal Studies and Lloyd's of London Press Ltd London 1996, 261.

[183.] The adversarial nature of litigation is said to be democratic by allowing the parties to define and control the dispute -- litigation is essentially a participatory process where competing versions of the dispute are publicly aired and debated. Adversaries `sometimes do bring into court evidence which, in a dispassionate inquiry, might be overlooked': J Frank Courts on trial: Myth and reality in American justice Princeton University Press Princeton 1949, 80.

[184.] R Eggleston `What is wrong with the adversary system' (1975) 49 Australian Law Journal 428, 430; S Parker `Islands of civic virtue? Lawyer and civil justice reform' (1997) 6 Griffith Law Review 1; E Whitton Trial by voodoo Random House Sydney 1994; E Whitton The cartel: Lawyers and their nine magic tricks Herwick Sydney 1998.

[185.] Jerome Frank has observed that `the partisan nature of trials tends to make partisans of the witnesses', including experts: J Frank Courts on trial: Myth and reality in American justice Princeton University Press Princeton 1949, 86. See para 6.91-6.95.

[186.] For example, the debate over whether it is an objective of a common law hearing to discover the truth. In civil law countries the responsibilities of the judge to discover the truth go beyond the determination of the dispute between the parties: J Jolowicz `The Woolf report and the adversary system' (1996) 15 Civil Justice Quarterly 198, [208.]

Within the adversarial system, despite some statements to the contrary, the function of the courts is not to pursue the truth but to decide on the cases presented by the parties: A Mason `The future of adversarial justice' Paper 17th Annual AIJA Conference Adelaide 7 August 1999, 7.

However, others believe that `truth is best discovered by powerful statements on both sides of the question': Lord Eldon LC quoted with favour by Denning LJ in Jones v National Coal Board [1957] 2 QB 55, 63; or that `[s]uccessful cross examination is the most effective means of discovering the truth': G Downes `Changing roles and skills for advocates' Paper Beyond the adversarial system Conference Brisbane 10-11 July 1997, 5. See also R Gerber `Victory vs trust: The adversary system and its ethics' (1987) 19(3) Arizona State Law Journal 3. It remains a moot point which system offers the best method for ascertaining the truth. Critics familiar with both systems do not agree.

The argument as to whether the truth is best obtained by the adversary system or by something more closely approximating to the civil procedure adopted on the Continent is of course incapable of being resolved: R Eggleston `What is wrong with the adversary system?' (1975) 49 Australian Law Journal 428, 433.

[187.] The adversarial system has proceeded on the assumption that the fairest and most effective method of determining the truth of a matter is to allow the parties to put their respective cases in their own way. This assumption depends upon the parties being able to identify their own interests and fight their own battles. The extent to which a party can do that will depend upon their own qualities and resources and those of their legal representatives and experts: Dietrich v R (1992) 177 CLR 292, 335 (Deane J); Giannarelli v Wraith (1988) 165 CLR 543, 556 (Mason CJ).

A number of submissions referred to the difficulties for unrepresented litigants in an adversarial system: WLS Brisbane Submission 218. The Federation of Community Legal Centres (Vic) asserted that the fairness and effectiveness of the adversarial system is

based on the premise that both parties are equally able through personal and financial means to put their own case forward in the best possible way': Federation of Community Legal Centres Submission 155.

[188.] WLRC Submission 153.

[189.] WLS Brisbane Submission 218.

[190.] Law Council Submission 126. The NSW Bar Association stated that two of the best features of the current system were that it was `based on a common law system of orality which is by far the best method yet discovered of ascertaining the truth and delivering justice' and `there has never been a serious suggestion of corruption in the federal judicial system and the integrity of judges is beyond question': NSW Bar Association Submission 88.

[191.] Law Council Submission 126.

[192.] NSW Bar Association Submission 88. A number of submissions and commentators expressed concerns with transplanting inquisitorial processes in Australia; the need for retraining of the judiciary and legal profession; the capacity of inquisitorial systems to be sufficiently independent of government: eg Law Council Submission 126; A Rowland Submission 36; P Heerey Submission 49; B McKillop Submission 59. See also A Mason `The future of adversarial justice' Paper 17 Annual AIJA Conference Adelaide 7 August 1999, 9.

[193.] A Buchanan Submission 124; Family Law Association Submission 134; Family Law Reform and Assistance Association Inc Submission 157; R Kelso Submission 159; Burnside Submission 160; Children's Interest Bureau Submission 170; R Cook Submission 322. There was some suggestion that the AAT was overly adversarial eg Public Policy Assessment Society Submission 325.

[194.] Australian Chamber of Commerce and Industry Submission 61.

[195.] N Pasqua Submission 132; J Weingarth Submission 52.

[196.] Taxi Employees League Submission 128.

[197.] Burnside Submission 160.

[198.] Legalcare Submission 50.

[199.] An indication of convergence is the adoption of case management and managerial judging. This convergence will not necessarily conclude with the same, integrated systems; it is more an indication of the adoption by one system of the principles and procedure used in another. Some important differences remain. These may be so entrenched that there is never complete convergence. See the work of the American Law Institute Transnational rules of civil procedure Discussion draft American Law Institute Philadelphia 1 April 1999. Also see B Markesinis `Learning from Europe and learning in Europe' in B Markesinis The gradual convergence: Foreign ideas, foreign influences, and English law on the eve of the 21st century Oxford University Press Oxford 1994, 30; R David and J Brierley Major legal systems in the world today 3rd ed Stevens & Sons London 1985, parts 1 and 3.

[200.] The court only considers the facts brought before it; it may not investigate on its own G Wittuhn and R Stucken `Germany' ch 7 in C Campbell (ed) International civil procedures Center for International Legal Studies and Lloyd's of London Press Ltd London 1996, 297. Parties present the facts to the court and their lawyers have roles comparable to lawyers' roles in common law countries: J Langbein `The German advantage in civil procedure' (1985) 52(4) University of Chicago Law Review 823, 824.

The Law Council has stated that its research demonstrates that both common law and civil code countries characterise their system of settling civil disputes as `adversarial' in the sense that the court's role is to resolve the parties' dispute as put to them: Law Council Submission 126. The Council referred in particular to France and Germany as having adversarial civil justice systems: Law Council Submission 126. See also D Staats `The education and further training of German judges for their duties in civil proceedings' and M Lemonde `Training of judicial officers and attorneys in France' Papers Beyond the Adversarial System Conference Brisbane 10-11 July 1997. This should be contrasted with their criminal proceedings where there are the hallmarks of inquisitorial systems: Law Council Submission 126.

[201.] C Lécuyer-Thieffry `France' in C Campbell (ed) International civil procedures Center for International Legal Studies and Lloyd's of London Press Ltd London 1996, ch 6, 258; R David and J Brierley Major legal systems in the world today 3rd ed Stevens & Sons London 1985, parts 1 and 3.

[202.] B Markesinis The gradual convergence: Foreign ideas, foreign influences, and English law on the eve of the 21st century Oxford University Press Oxford 1994, 30.

[203.] See the work of the American Law Institute Transnational rules of civil procedure Discussion draft American Law Institute Philadelphia 1 April 1999. Also see International Association of Procedural Law `Procedural law on the threshold of a new millennium' Papers World Congress on Procedural Law University of Vienna 23-28 August 1999.

[204.] B Markesinis `Learning from Europe and learning in Europe' in B Markesinis The gradual convergence: Foreign ideas, foreign influences, and English law on the eve of the 21st century Oxford University Press Oxford 1994, 30.

[205.] A Zuckerman `Justice in crisis: Comparative dimensions of civil procedure' in A Zuckerman (ed) Civil justice in crisis: Comparative perspectives of civil procedure Oxford University Press 1999, 47-48. See also J Jolowicz `The Woolf report and the adversary system' (1996) 15 Civil Justice Quarterly 198, 200.

[206.] T Thawley `Adversarial and inquisitorial procedures in the Administrative Appeals Tribunal' (1997) 4 Australian Journal of Administrative Law 61; J Dwyer `Fair play the inquisitorial way: A review of the Administrative Appeals Tribunal's use of inquisitorial procedures' (1997) 5 Australian Journal of Administrative Law 5, 19; L Certoma `The non-adversarial administrative process and the Immigration Review Tribunal' (1993) 4(1) Public Law Review 4.

[207.] . In the Marriage of Gibson (1981) FLC 91-049; In the Marriage of Lonard (1976) 26 FLR 1. Also see Watson J's decision in In the Marriage of Lythow (1976) FLC 90-007; R Chisholm `The adversary system and Family Court developments' in Family Court National Seminar Papers: Coffs Harbour July 1992 Commonwealth of Australia 1994.

The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities: M and M (1988) FLC 91-979 quoted in Family Court Submission 348.

[208.] . In the Marriage of Johnson (1997) 22 Fam LR 141. See para 5.147-157.

[209.] Family Law Act s 62G.

[210.] See ALRC 84, para 13.33-41. Also see Family Law Act s 68L, 68M and Re K (1994) FLC 92-461, 80, 770.

[211.] Family Law Rules O 30 r 5.

[212.] Law Council Submission 197.

[213.] K Glomb `Roles and skills of a German judge'; W van Caenegem `Changing roles and skills of practitioners in civil litigation: A comparative perspective'; M Lemonde `Educating French legal professionals'; J Staats `Educating German legal professionals' Papers Beyond the Adversarial System Conference Brisbane 10-11 July 1997.

[214.] A Lowenfeld `Introduction: The elements of procedure: Are they separately portable?' (1997) 45 American Journal of Comparative Law 649, 651.

[215.] A Mason `The future of adversarial justice' Paper 17th Annual AIJA Conference Adelaide 7 August 1999, 9.

[216.] ibid.

[217.] D Luban Lawyers and justice: An ethical study Princeton University Press Princeton 1988, 92.

[218.] T Cromwell Dispute resolution in the twenty-first century Canadian Bar Association Systems of Civil Justice Task Force Toronto 1996, 90-91.

[219.] The Commission's amended terms of reference specifically exclude consideration of changes of a kind that would or might require amendment of the Constitution. The amended terms of reference are set out at p 5. The Commission's recommendations on revised practice standards to reduce excessive partisanship are set down in ch 3.

[220.] ALRC DP 62 para 2.34.

[221.] For a discussion of the role of courts see eg J Doyle `Administrative law and the rule of law: Still part of the same package?' Paper 1998 Administrative Law Forum Melbourne 18-19 June 1998, 1; J Raz `The rule of law and its virtue' (1977) 93 Law Quarterly Review 195, 198-201; J Doyle `The well-tuned cymbal' in Fragile bastion: Judicial independence in the nineties and beyond Judicial Commission of NSW Sydney 1997, 40-41.

[222.] See further ch 3.

[223.] M Kirby `The future of courts -- Do they have one?' (1999) 8(4) Journal of Judicial Administration 185, 186.

[224.] The primary character of the judicial power was described by the High Court in Huddart, Parker & Co v Moorehead (1909) 8 CLR 330, 357 as the power of a sovereign authority to `decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property' (Griffith CJ). See also Fencott v Muller (1982-1983) 152 CLR 570, 608 (Mason, Murphy, Brennan and Deane J).

[225.] . Polyukhovich v Commonwealth (1991) 172 CLR 501, 703 (Gaudron J).

[226.] . Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at [56] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan J).

[227.] . Harris v Caladine (1991) 172 CLR 84, 150. This is reiterated in Re Nolan; Ex parte Young (1991) 172 CLR 460, 496 and Polyukhovich v Commonwealth (1991) 172 CLR 501, 703-4.

[228.] (1992) 174 CLR 455, 470 (Mason CJ, Dawson and McHugh J).

[229.] Section 97(3) provides that `[i]n proceedings under the Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted'.

[230.] (1976) 136 CLR 248, 257-8. On the issue of constitutional constraints, the Law Council stated]
Chapter III ... vests the judicial power of the Commonwealth in the High Court and other courts with federal jurisdiction. Consequently, the Parliament cannot require or authorise the Family Court to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power: Submission 197.

[231.] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

[232.] id 259, 269. 233. id 268.

[234.] See A Hall `Judicial power, the duality of functions and the AAT' (1994) 22 Federal Law Review 13, 18-21.

[235.] J Thibaut and L Walker The social psychology of procedural justice Plenum Press New York 1988 cited in M Shirley Procedural justice -- A shifting focus Laws 99203 Dissertation, 37.

[236.] Law Council Submission 197.

[237.] NSW Bar Association Submission 88.

[238.] . R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556, 569 (Latham CJ), 575 (Starke J), 588-9 (Dixon and Evatt J).

[239.] A Mason `The courts as community institutions' (1998) 9 Public Law Review 83, 85.

[240.] . Bass v Permanent Trustee Co Ltd [1999] 161 ALR 399, 425 (Gleeson CJ, Gaudron, McHugh, Kirby, Gummow, Hayne and Callinan J), discussing the procedure used by the trial judge to answer formulated questions without making factual findings. See also Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146.

[241.] A Mason 'A new perspective on separation of powers' (1996) 82 Canberra Bulletin of Public Administration 1, 7.

[242.] A Mason `The future of adversarial justice' Paper 17th Annual AIJA Conference Adelaide 7 August 1999, 10.

[243.] The High Court acknowledged the inquisitorial nature of procedures in the AAT in Bushell v Repatriation Commission (1992) 175 CLR 408, 424-5, when it said

Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial.

The basis for this conclusion was the ability of the tribunal to request or compel the production of further material: see T Thawley `Adversarial and inquisitorial procedures in the Administrative Appeals Tribunal' (1997) 4 Australian Journal of Administrative Law 61; J Dwyer `Fair play the inquisitorial way: A review of the Administrative Appeals Tribunal's use of inquisitorial procedures' (1997) 5 Australian Journal of Administrative Law 5, 19.

[244.] As opposed to federal merits review tribunals.

[245.] See para 4.56-4.61.

[246.] See ch 9.

[247.] See ch 6-9.

[248.] See ch 5.

[249.] See ch 5-6.

[250.] See ch 6.

[251.] S Skehill `Comment on court governance' (1994) 4 Journal of Judicial Administration 28; P Sallmann `Where are we heading with court governance?' (1994) 4 Journal of Judicial Administration 5; G Green `Comment on court governance papers' (1994) 4 Journal of Judicial Administration 18; J Fitzgerald `Comment on court and court-system governance' (1994) 4 Journal of Judicial Administration 22; R Nicholson `Judicial governance and the planning of court space and facilities' (1994) 3 Journal of Judicial Administration 181.

[252.] See ch 6.

[253.] See para 6.40.

[254.] see ch 6 and ALRC IP 23.

[255.] See ch 3, 9.

[256.] See ch 3.

[257.] ibid.

[258.] ibid.

[259.] Ontario Court of Justice and Ministry of the Attorney-General Civil justice review: First report Ontario Court of Justice and Ministry of the Attorney-General Toronto 1995, 103.

[260.] See eg Lord Woolf Access to justice: Final report to the Lord Chancellor on the civil justice system in England and Wales HMSO London 1996; Ontario Court of Justice and Ministry of the Attorney General Civil justice review Ontario Court of Justice and Ministry of the Attorney-General Toronto 1995; Ontario Law Reform Commission Study paper on prospects for civil justice OLRC Toronto 1995; Canadian Bar Association Systems of civil justice task force report CBA Toronto 1996; Law Reform Commission of Nova Scotia Reform of the administrative justice system in Nova Scotia LRCNS Halifax 1997; Agenda for Civil Justice Reform in America A report from the President's Council on Competitiveness 1991; American Bar Association Working Group on Civil Justice System Proposals Blueprint for improving the civil justice system ABA Washington DC 1992; Report on the American Bar Association's `Just Solutions' Conference and Initiative Just solutions: Seeking innovation and change in the American justice system ABA Washington DC 1994.

[261.] S Parker Courts and the public AIJA Carlton South 1998. The report found that all court systems in Australia are moving in the direction of consumer orientation and a culture of service' but some are moving considerably more quickly than others'. Continuing problems included the lack of the following: reliable mechanisms for identifying and sharing best practice; common performance indicators or standards; statistical information about court users; strategic planning; routine use of feedback; and clear and responsive complaints systems. The report recommended that courts should have communication plans and information strategies to improve that communication.

[262.] Law Reform Commission of Nova Scotia Final report: Reform of the administrative justice system in Nova Scotia LRCNS Halifax 1997, 13. See ch 9.

[263.] See ch 6-9.

[264.] ibid.

[265.] Particular consideration was given to the government's role as a litigant and party to disputes in ALRC DP 62 ch 8, and ch 3, para 3.129-3.173 of this report.

[266.] See ch 5.

[267.] See ch 2, rec 12.

[268.] B Beaumont `The self-administering court: from principles to pragmatism' (1999) 9(2) Journal of Judicial Administration 61, 63. The Courts and Tribunals Administration Amendment Act 1989 (Cth) transferred from the Attorney-General's Department to the Family Court and the AAT supervision of their own financial management and administration. Part IIA of the Federal Court of Australia Act 1976 (Cth) made similar arrangements for the Federal Court.

[269.] . High Court of Australia Act 1979 (Cth) s 17, 46 (`the powers of the High Court under this Act may be exercised by the Justices or a majority of them').

[270.] M Gleeson `Judicial accountability' Paper Courts in a Representative Democracy Conference Canberra 13 November 1994, 4.

[271.] ibid. Justice Beaumont notes that `the United States National Center for State Courts has published a model annual report which should be compared with guidelines established by the Australian Senate in its Scrutiny of annual reports': B Beaumont `The self-administering court: from principles to pragmatism' (1999) 9(2) Journal of Judicial Administration 61, 67.

[272.] See the discussion in ch 2 regarding s 72(ii) of the Constitution and its impact on judicial accountability.

[273.] C Baar `The model judiciary -- The emergence of the judiciary as an institution' Paper Third Asia-Pacific Court Conference Shanghai, PRC 6-8 October 1998, 16.

[274.] I Scott Correspondence 24 November 1999.

[275.] See ch 9.

[276.] Family Court Media release 19 October 1999; see also para 8.11.

[277.] See ALRC DP 62 para 12.46-39. Also see ALRC `Review of the federal civil justice system: ALRC discussion paper 62' Media briefing 20 August 1999.

[278.] Report of the President of the Commonwealth Administrative Appeals Tribunal Administrative Review Council Meeting No 190 5 November 1999.

[279.] A Zuckerman `Justice in crisis: Comparative dimensions of civil procedure' in A Zuckerman (ed) Civil justice in crisis: Comparative perspectives of civil procedure Oxford University Press 1999, 52.

[280.] J Leubsdorf `The myth of civil procedure reform' in A Zuckerman (ed) Civil justice in crisis: Comparative perspectives of civil procedure Oxford University Press 1999, 61.

[281.] See ch 3; see also B Lane `Barrister's ethics raise Bar' Australian 13 January 2000; and Editorial `Ethical rules put reliance on evidence' Australian 13 January 2000.

[282.] See D Ipp `Opportunities and limitations for change in the Australian adversary system' in H Stacy and M Lavarch (eds) Beyond the adversarial system Federation Press 1999, 68, 84; and L Olsson `Combating the warrior mentality' in C Sampford, S Blencowe and S Condlln (eds) Educating lawyers for a less adversarial system Federation Press 1999, 2, 6-8.

[283.] Lord Woolf Access to justice: Interim report to the Lord Chancellor on the civil justice system in England and Wales Lord Chancellor's Dept London 1995, 7.

[284.] G Watson `From an adversarial to a managed system of litigation: A comparative critique of Lord Woolf's interim report' in R Smith (ed) Achieving civil justice Legal Action Group London 1995, 67.

[285.] See ALRC DP 62 proposal 3.1 regarding an Australian Council on Legal Education.

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