LITIGATION - PAST AND PRESENT
Editors:Wilfrid Prest and Sharyn Roach Anleu
ISBN:0 86840 550 7
Price:RRP $65 (HB)
This book is a collection of essays that first saw light as papers delivered to a workshop of the Academy of the Social Sciences in Australia. The event took place in September 2001 at the University of Adelaide. The ten papers were presented to discerning participants who included a federal judge, legal academics from Australia, Britain and New Zealand as well as a sprinkling of political scientists, experts in indigenous affairs and members of the Bar.
Published in 2004, the book reveals weaknesses inherent in the interval of three years between the preparation of the papers and publication as well as structural difficulties arising from the loose thematic links that bind the papers together. To use litigation as a common thread in a book mainly on legal topics is akin to using God as a link for essays on theology. Given the common law tradition within which the law operates in Australia, litigation refers to just about everything into which legal disputes are organised. It is certainly important, but as hinted in the closing chapter by Shirley Scott, on international law as a litigation strategy for indigenous Australians, there are other - and often better - ways to bring conflict to a happy conclusion than to march off to court. Costs, delays and uncertainties always accompany the litigant. That is why litigation has rarely enjoyed a good press.
The motivating theme that runs through a number of the chapters of the book is that Australia is following the United States into a "litigation crisis". This thesis suggests that the courts are being overrun with trivial suits in which unmeritorious litigants recover outrageous awards. In so far as the book seeks to answer this favourite theme of editorialists, it performs a useful service.
The opening chapter on historical and contemporary dimensions of litigation, written by the editors, Sharyn Anleu and Wilfrid Prest, points out that litigation can sometimes empower the weak and the disadvantaged against the powerful. The writers refer specifically to judgments of final courts in Australia, Canada and New Zealand concerning claims by indigenous peoples. I have a feeling that, if this chapter had been written with the case law handed down closer to the date of publication, the authors might not have been quite so sanguine. As Merkel J remarks, in a quotation appearing towards the close of the book, the native title litigation of Australia's indigenous peoples always presented a "danger of raising unrealistic expectations about what might be achieved by recourse to the law". This comment, penned in 1999, has been reinforced by the trend of judicial decisions since. Where success has been reported in the press, it has often come about from negotiation between parties, who somehow have to live together, rather than through litigation and decisions imposed on those parties by judicial fiat.
The historical introduction is interesting, as revealing the way records of litigation were kept in England back to the thirteenth century, allowing the varying use of courts over 800 years to be assessed with a high degree of accuracy. In Australia, we have even more detailed and intensive statistics over a shorter interval. Amongst the many figures quoted is one concerning the proportion of lawyers per head of population. In the United States, in 2000, there was 1 lawyer for every 267 citizens. The figure in Australia was about 1 in 700. Obviously, rates of litigation vary with the availability of lawyers. But also with the culture, ethical restraints and financial arrangements of the legal profession.
The introductory chapter cites what the authors describe as the "growing body of recent High Court decisions which favour plaintiffs and expand the circumstances in which negligence could be held to have occurred". In support of this diagnosis the authors quote the retirement speech of Justice Thomas of the Court of Appeal of Queensland who castigated the judiciary for having "enjoyed playing Santa Claus forgetting that someone has to pay for our generosity". However, if the book had been written in 2004, it would have caught up with the sharp turnaround in decisions of the High Court which now, predominantly, appear to favour defendants. This is a point frequently made elsewhere by Professor Harold Lunz. It shows the dangers inherent in any snapshot of litigation which, necessarily, is taken at a given time. Action creates reaction, in litigation as in just about everything else.
The real advantage of the historical material is that it shows that nothing much has changed over the past four centuries. New themes emerge reflecting new social values. The semi-chaotic process of litigation presents a useful adjustment to the large legal strokes made by Parliament in legislative statements of legal rights and duties, the adjustment of individual wealth and the allocation of liberty and restraint.
The chapter on a longitudinal study of civil litigation in England 1200-1996 by Professor Christopher Brooks of Durham University scotches the received wisdom that, to the end of the 17th century, the courts of England were used mainly by a social elite, in land disputes or other contests, to assert their power over the weak and vulnerable. Empirical data constantly challenges such stereotypes. Scrutiny of the actual records shows that "all kinds of English people, ranging from wage-labourers and seamen to better off tradesmen and small farmers, regularly used legal instruments as a way of recording many life experiences from the cradle to the grave". Debt recovery, in particular, has been a major element of the use of courts by all social classes over the centuries. Contingency fee arrangements were not invented in modern times. The graphical representation of trends in litigation over extended intervals shows ups and downs in going to court. As an insight into some of the factors that have influenced this particular form of participation in civil society, the analysis of English court records is fascinating.
So is the research of Christine Churches recorded in the third chapter on "Some figures behind the numbers - Going to law in early-modern England". This essay provides a pen picture of what it was like to go to court in the late 17th century. I once sat in the back of the courtroom of the Supreme Court of India. The milling throng, the ancient books, the fragile actors in the courtroom seemed a contemporary display worthy of Westminster Hall centuries ago. Of course, that may be how the contemporary High Court of Australia looks to this day to the uninitiated. Imagining the English courtroom in the time of the Stuarts is made easier by this study.
Continuing the historical theme, the fourth chapter by Professor Jeremy Finn, on litigation in the early years of the Canterbury settlement in New Zealand, analyses the early records of the colonial courts in that country in a prosperous district where free settlers were seeking to re-create England in the South Seas, with only occasional interruptions by the Maori. As might be expected, much of the litigation concerned debt recovery. The records of the taxing of legal costs give a detailed insight into the daily work of lawyers engaged in litigation. As in England, so in New Zealand. The author concludes that "the Supreme Court was used by almost every social class, although merchants and their clients were clearly the most frequent actors".
The fifth chapter by Dr Hilary Golder, Professor Rosemary Hunter and Diane Kirkby offers a fascinating insight into "When married women litigate". For women, litigation was not generally possible until a legal status, separate from their husbands, was belatedly recognised. This and the late 19th century laws permitting divorce brought many women into Australian courts for the first time. In the federation year of 1901, for example, women petitioners seeking divorce outnumbered men by at least 2:1 in the eastern states of Australia. It was not always easy. To gain a divorce on the ground of habitual drunkenness, a wife had to prove that the defect had been aggravated by habitual failure to support the family. Men, on the other hand, had simply to show that a drunken wife had neglected her domestic duties. There are many insights into the patriarchal attitudes of the law, that long survived the federation year, in this fascinating analysis of court records concerning female litigation.
The sixth chapter by Professor Ted Wright and Dr Angela Melville tackles directly "The metrics and politics of trends in civil litigation". The authors quote various instances of political denunciation of avaricious lawyers and greedy litigants whilst observing that such claims "are not necessarily founded in fact" or representative. Yet upon such stereotypes have been based many contemporary laws reducing severely the entitlement of injured persons to recover from those responsible a recompense roughly equivalent to their losses. Effectively, to bring down the cost of the green slip for compulsory motor insurance, judged necessary for political popularity, allocations for injuries damages have been significantly shifted. An increasing burden is now borne by the injured themselves, seemingly sacrificed on the false altar of the mythical God of excessive litigation. Perhaps the litigation was not excessive: simply a reflection of the failure of the legal system to deliver compensation to the injured in a more efficient manner.
Wright and Melville produce excellent graphical representations of the court filing rates in state and federal courts in New South Wales over the past decade. Contrary to the foundation of the demands of insurers for special protection, some of this statistical data appears to indicate that litigated court claims actually declined in the period when insurers were screaming most for relief. If the figures presented here are even partly accurate, they suggest the power of a well organised lobby, acting in concert with media hyperbole and political scare tactics. This chapter makes sombre reading for those who cling to the faith that democratic parliaments in Australia usually enact sensible and just outcomes in terms of social policy.
The seventh chapter on "Litigation and the Federal civil justice system" is written by two experts in the best position to write such a review. Professor David Weisbrot is President of the Australian Law Reform Commission and Mr Ian Davis is a full-time Commissioner of that body. In July 2000 the Commission delivered its report Managing Justice that completed a four year inquiry into the federal civil justice system. Boringly enough, the Commission found that "there was no 'crisis' in the Australian federal civil justice system, notwithstanding a widely held perception that such a crisis had arisen or was looming". The careful recommendations of the Commission are described. The role of litigation in contributing to economic growth and social equity are well identified. The analysis of the work of the Federal Court of Australia and the emphasis on the importance of maintaining the recruitment of high quality decision-makers were features of the Commission's report. Once again, the importance of basing legislative and policy proposals on sound data is borne out by the research reviewed in this study.
Dean David Bamford of Flinders University contributes the eighth chapter on "Litigation reform 1980-2000". He too takes to task the "perception of crisis". Alas, the Australian and New Zealand Chief Justices contributed to this atmosphere by suggesting in 1996 that "the system of administering justice is in crisis". Whilst Bamford recognises systemic weaknesses, particularly when litigation is viewed in the context of global and local changes, he suggests that courts in Australia and other countries of the common law, have generally embarked on the right path. In his view, this has involved more intensive case management, the reduction of court involvement in most outcomes, the use of mediators, conciliators, arbitrators and other functionaries and stricter monitoring of the conduct of litigants. Of course, there is a danger in turning the business of courts over to efficiency experts. Under the Australian Constitution, courts cannot forfeit their duty to act justly and lawfully. This point was reinforced by the decision of the High Court of Australia in Queensland v JL Holdings Ltd (1997) 189 CLR 146. I get the impression that Dean Bamford thinks that the judges who unanimously favoured that outcome constitute something of an obstacle to efficient court reforms. But I, for one, am unrepentant. Please do not complain to me that courts are there to do justice. Within the law, that is precisely their role.
Nevertheless, this chapter makes the important point that the adversarial system adds a significant cost to litigation. It puts those who cannot afford lawyers at a terrible disadvantage before the courts. How we solve this problem, consistently with the assumptions of the judicature created by the Australian Constitution, is a major challenge for the future. If there is a "crisis" in litigation in Australia, this is it.
Professor Larissa Behrendt contributes the ninth chapter on "Challenging the status quo". It is an examination of the pursuit of indigenous rights through litigation before the Australian courts during the hundred years before the decision in Mabo in 1992. The author contrasts the development of the fiduciary concept, in relation to the Crown's obligations to indigenous peoples in Canada and the judicial disinclination to embrace a similar idea in the Australian context. I suspect that we have not seen the last of this topic. However, it will probably need another generation of judges before the Australian courts embrace a larger notion of fiduciary duties that will encourage indigenous peoples to come again knocking on the doors of the courts, seeking rights based on a fresh approach.
The final chapter by Shirley Scott also takes as its starting point the Mabo decision. Then, after the rekindled hope of the Wik case in 1996, it examines decisions since then, made by courts and Parliament alike. On the whole, they have disappointed Aboriginal claimants. The failure of the court claim in respect of the "stolen children" and the parliamentary fate of the report of the Human Rights and Equal Opportunity Commission Bringing Them Home finishes this book on a sombre note.
Litigation such as Mabo and Wik seemed to promise indigenous Australia great hope from the decisions of the Australian courts. Yet nowadays the courts feel more constrained by the legislation enacted in the wake of those decisions. The tide appears to be in retreat somewhat. Some litigation has shifted offshore - to United Nations bodies in Geneva and New York.
The last words in this book contend that, in the years since Mabo, "far more has changed in our imaginations than on the ground". This conclusion does not erase the historic gains which Mabo and Wik secured. Once those decisions were given, the caravan of the law moved on. Few in Australia would want to go back to the legal doctrine that preceded Mabo and Wik. Yet, as so often happens in litigation, when the law leaps boldly forward in a judicial decision, it then takes fright. Startled, it looks about and stands still for a time, mesmerised by the unseemly haste of its last leap forward - awaiting the moment for its next move.
Some readers will feel that the theme of litigation is insufficient to connect chapters with such intensive descriptions of English and New Zealand social history. Some will regret the lack of a good chapter on Canadian and United States trends. The essays on indigenous claims seem a little sadly tacked onto the end of the book. It is as if everyone recognised the importance of the issue and wanted to give it due attention. Those chapters portray not the weakness of litigation as a mechanism so much as the errors of substantive law that the litigation brought to light. The same might be said of the experience of women in litigation. So doubtless it could be said of litigation on behalf of aliens, gays, people with disabilities and other minorities. Perhaps that function does a service in the dialogue of democratic countries.
As a collection, the book is thought provoking. But I put it down without the conviction that the thread of litigation adequately performs its assigned unifying role.
There are the usual typographicals. "Senior counsel" is misspelt on p 145 in the predictable way. The index is good (a necessary feature of a collection of essays). However, it wrongly describes R P Meagher as "Rodney". It is Roderick. The book is nicely printed by UNSW Press. Clearly, some of the chapters have been updated - so far as I could see to 2002. The most important point made by the book is that the "crisis" in litigation, portrayed in the media, is mainly a chimera. Yet there remains a "crisis" of sorts as every judge will attest who sits in an Australian court and witnesses the increasing army of self-represented litigants struggling with our ungainly system. Perhaps it is that "crisis" that deserves a second workshop of the Academy of Social Sciences. If that happens, the book of its papers must be produced more promptly. If the book is to sell, it must have a strong common theme. Desirably, it should conclude with an overview offering lessons derived from an analysis from the papers and some recommendations for action to translate the bright insights of the social sciences into an agenda for our representative democracy.