Cronin, Kathryn --- "Digging for Data: the Adversarial Inquiry" [1998] ALRCRefJl 8; (1998) 72 Australian Law Reform Commission Reform Journal 34

• Reform Issue 72 Autumn 1998

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Reform Issue 72 Autumn 1998

This article appeared on pages 34 – 37 of the original journal.

Digging for Data: The Adversarial Inquiry

The Australian Law Reform Commission’s major inquiry into the adversarial system of justice has prompted external concern that there is a fundamental absence of data on the working of the litigation system and the evaluation of recent reforms. Dr Kathryn Cronin* discusses the empirical research program being conducted by the ALRC and provides an update on the progress of the reference.

The Commission’s inquiry into the federal civil litigation system was born out of concerns that legal proceedings in Australia are excessively adversarial in nature, and that this adds to costs, to delays in the system and that it works unfairly.

The inquiry is wide-ranging, and premised on the fact that Australian litigation blends adversarial and non-adversarial elements - and is likely to continue to do so. The Commission, therefore, is focusing on the problems and benefits of particular dispute resolution practices, rather than on whether the pure model of adversarial litigation is better than the inquisitorial system.

From the beginning of the reference in November 1995, the Commission has recognised the need for, and initiated, empirical research on the workings of the court system.

There is a singular lack of data about the legal system. We know little about who are the litigants and applicants in federal courts and tribunals; whether they are big corporations, small businesses or individuals of average means. There are no clear figures on how many litigants have lawyers to represent them in their dealing with courts and tribunals. We don’t know how much the legal system costs government or private companies and individuals. Courts tend to measure the delays in their systems, that is, how long it takes a case to be resolved, but again there is little information as to why certain cases settle, on what processes work well to produce settlement and why certain cases last through to trial. This information is essential if we are to evaluate the system; to test whether it is accessible to all Australians and that it works fairly and efficiently.

The Commission’s resources and the time limits imposed on our inquiry do not allow us to remedy all these information deficits. We have had to evaluate what data is essential to our deliberations and assess how we are to obtain it. Some information is relatively easy to obtain. In the early days of the inquiry, the Commission surveyed all courts, the federal review tribunals and legal professional associations to find out what educational initiatives they had implemented for judges, their members and staff. The results of that survey were incorporated into the issues paper Rethinking legal education and training (IP21, August 1997). The Commission also engaged consultants to assess what data is trapped by court and tribunal recordkeeping and to evaluate what data could or should be recorded in the future. That report is complete and has been circulated for comment.

It has been much more difficult to assess how we might investigate the processes of litigation and review. In January 1997, the Commission conducted a pilot survey, extracting information about the litigants, case processes and outcomes from 224 Federal Court Sydney registry files, which had been completed in November 1996. This was followed by a survey of the solicitors handling those same cases to find out the costs involved. The pilot established a methodology for our court and tribunal investigations. It demonstrated that it was possible to access information about litigants, case progress, outcomes and costs so as to get a ‘bird’s eye view’ of the working system. The results of the pilot study were released in the Commission’s issues paper Rethinking the federal civil litigation system (IP20) in April last year. In December, the pilot was extended and Commission staff collated information from some 3000 Administrative Appeals Tribunal (AAT) cases, which had been completed in the Tribunal around Australia during the months of August, September and October 1997. This study and the follow up survey of solicitors on the costs of such cases will be released in a discussion paper, due for publication in September of this year.

Information from this representative sample of AAT matters should help to determine, among other things:

• Who are the parties to AAT proceedings?

• What occurs once applications are lodged with the AAT? That is, what conferences and hearings are attended, what documents are filed and what orders are given?

• What is the outcome of most applications?

• Is there some way of measuring the complexity of applications, for example, by reference to applications made to the AAT, number of parties, type of documentation filed or through some other means?

• What is the cost of proceedings?

In relation to the last question, a second stage of the survey will involve a follow up survey of solicitors to determine overall levels of cost and cost ‘hot spots’.

The Commission and its consultants presently are negotiating with the Family and Federal Courts to collect data from similar samples of their case files. When the full survey is complete we will have, for the first time, some national picture of the functions of the federal litigation and review system. It should assist not just the ALRC, but all interested stakeholders who are reforming legal practice systems.

Changes to the terms of reference

On September 2, 1997, federal Attorney-General, Daryl Williams altered the Commission’s terms of reference.

These revised terms of reference for the inquiry were formulated in detailed discussions between the Commission, the Attorney-General and his department about coordinating civil justice reform initiatives. The terms of reference given to the Commission were, and remain, broad.

The altered terms require the Commission to exclude from its inquiry issues relating to;

• the structure and management of federal merits review tribunals;

• the breadth, type, coverage and nature of decisions in merits review of federal administrative decisions;

• the possible establishment, structure and jurisdiction of a federal magistracy;

• the organisation and provision of family counselling services; and

• the structure of the Family Court and its relationship to the Federal Court of Australia.

They also exclude consideration of changes of a kind that would or might require amendment of the Constitution.

Consultations

The inquiry is being conducted in consultation with a number of expert groups established for the purpose of the inquiry. These include an Advisory Group, a Federal Consultative Council and working groups focused on the practical problems and issues involved in particular types of proceedings and processes and particular areas of interest such as costs, training and education.

The Commission has consulted with a variety of interested groups and individuals around Australia as well as a range of overseas and local experts. The views canvassed include those of members of the judiciary, tribunal members, court administrators, the legal profession, experts in dispute resolution and academics.

During the year, the Commission will arrange seminars on various topics involved in the inquiry and will invite those interested to participate.

Anyone who has information or views on the federal civil, family or federal administrative review systems is encouraged to send the Commission a written submission or to register their interest in participating in a consultation.

Submissions

The Commission has so far received 150 submissions in relation to this inquiry. As well as submissions from major players in the system, a significant number of submissions have come from people who have been involved in litigation.

A number of submissions argue that litigation is excessively adversarial and the system promotes or allows continuing and expensive conflict which could be avoided or minimised. Other submissions caution against radical change and suggest that the current systems have considerable benefits, including protecting the right to litigate, which is part of a democratic political and legal system. We will include extracts from certain submissions in later issues of Reform.

Emerging issues

A number of general themes have emerged over the course of the inquiry. One major issue being canvassed is the diversion of cases from the litigation path to alternative dispute options. Allied with this, are questions about the effectiveness of alternative dispute procedures, current case management systems, and whether they reduce public and private costs.

Would delays and costs be reduced by providing simpler procedures and a more uniform process? Would fixing costs early in the proceedings be useful in those cases that are likely to require a trial? Should lawyers be given costs incentives to assist in settling matters earlier?

Other aspects of the inquiry involve issues associated with unrepresented litigants, whether changes to court practice and procedure are desirable (for example, to the discovery of relevant documents for a case and the use of experts) and court management of litigation (that is, do courts need new rules which specifically prescribe powers to manage litigation by, for example, placing time limits on oral submissions and the examination and cross-examination of witnesses; restricting the number of witnesses at trial; appointing experts; or calling and questioning witnesses?)

The discussion of family law proceedings raises some special issues which generally do not impact on other areas of federal civil proceedings. These issues include:

• the impact of violence or apprehended violence on court proceedings;

• the pervasive requirement to consider the best interests of any children in matters concerning them;

• special difficulties in enforcing court orders such as orders for parents or grandparents to have contact with children.

This reference has aroused considerable media and public interest. It is likely that this interest will grow. The unfolding inquiry deals with so many issues that are fundamental to the working of our civil justice systems.

* Dr Kathryn Cronin is a full time Commissioner at the Australian Law Reform Commission with responsibility for the reference reviewing the federal civil litigation and review systems.