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Chief Justice DAVID K MALCOLM[*] of Western Australia assesses the case for private courts.
What is often overlooked by those who are critical of the legal system is that there have been, and continue to be, substantial reforms in the way justice is administered. In recent years these have included the development of case management, mediation, the introduction of time standards, the harnessing of information technology for civil and criminal trials and the introduction of video-conferencing and the use of electronic appeals. Since the 1970s we have also seen the rise of the concept of ‘consumerism’ in both business and government. This concept has affected the way in which we now deal with problems of accessibility to and public perception of the justice system.
Community concern over the delay in the hearing and determination of cases has been coupled with concern for the overall cost of justice. Community concern over the cost of justice has coincided with the advent of what have been termed ‘managerialist’ reforms to public administration.[1] It is institutional legitimacy that explains why the overwhelming majority of Australians obey the law. The operation of open justice is an important determinant of this institutional legitimacy, which could not be replicated by market forces.[2] The development of public administration drawing heavily on an analogy with the private sector and seeking to replicate the incentives and sanctions of a market system while supplying insight and leading to reform, devalues aspects of activities which are incapable of measurement.
In its report Managing Justice: A Review of the Federal Civil Justice System, the Australian Law Reform Commission agreed with Justice Ronald Sackville’s (Chair of the Access to Justice Advisory Committee) analysis that the perception that the justice system is in ‘crisis’ and requires urgent and extensive reform overlooks the strengths of the current system.[3] As alluded to at the beginning of this comment, calls for reform often ignore the work that has already been successfully undertaken in improving access to the justice system and, perhaps more relevantly, the enormous number of variables that impact on the time taken to dispose of a particular case. The current emphasis on alternative dispute resolution (ADR) means that matters go to trial only after all possibilities of settlement have been exhausted. Courts encourage ADR for the benefit of the parties involved and also to ensure that proper use is made of limited resources. To add a further tier of private courts to the current court hierarchy would complicate the legal process by creating a variation of arbitration. Moreover, a parallel system of private courts would be an unnecessary duplication of existing procedures.
As Professor Parker acknowledges, solutions imported from other jurisdictions may not have had the benefit of a full analysis of the cultural context in which they have been developed, as well as of the difficulties involved in applying them in a different environment. By the creation of a perception of urgency, proponents of solutions such as the use of private courts may appear to respond to a particular difficulty but fail to address other aspects of the delay problem.
The Supreme Court of Western Australia has itself adopted a series of time standards for civil and criminal cases as well as appeals, including time standards for case readiness, listing intervals and delivery of judgments. These standards were adopted following comprehensive consultation with the profession. However, a degree of flexibility in the application of these standards remains necessary. This is reflected in the establishment of an Expedited List for urgent civil cases and a Long Causes List for major cases in which assigned judicial officers individually manage cases. External initiatives that attempt to measure the compliance of a court with externally fixed time or cost standards have the potential to impinge on the independence of the judiciary, as such measures often do not reflect the complexity or urgency of an individual case.
Professor Parker argues that parallel private courts will not compromise judicial independence. In my view, a private court would operate without the same safeguards of judicial independence that exist in the current system. Members of a private court may be vulnerable to interference or other action from any number of sources which may directly impact on their impartiality. Professor Parker counters that private courts will fail if there is reason to doubt their impartiality and litigants will make a choice to take the risk of bias. To my mind, this is not a satisfactory answer. There is also a further risk that private courts may be subject to a greater level of litigant dissatisfaction by unsuccessful parties. A party could make the observation that it is not a ‘real court’ and that they did not receive ‘real justice’. The flow-on effect may be an increase in appellate work or the transfer of matters to public courts, which would displace any benefit of providing greater access to justice by diverting litigants from the current system.
At present, the court fees that litigants in civil jurisdictions generally pay represent only a very small proportion of the total cost of the justice system. Although the subject is not fully explored in the preceding article, it may be presumed that a private court would be expected to both pay its own way and operate on a commercial basis for profit. Consequently, parties appearing in a private court would be expected to meet a much larger proportion of the court’s expenses in addition to the professional fees of practitioners. If a party objects to the jurisdiction of the private court or, if an interim injunction is required, the matter would need to be transferred to the public system. The parties would then incur costs in both systems. If, as I assume to be the case, submission to the jurisdiction of a private court rested on a contract between the parties and the private court operator, the spectre of litigation in the public system pursuant to such a contract may nevertheless be raised.
In reality, the private court system would appear to be no more than a venue for a variant of private arbitration. Costs in arbitration proceedings have been shown to match, if not exceed, the costs of court proceedings. In these circumstances, it is difficult to make an argument for private courts based on cost advantages to litigants.
It is unclear why new procedures cannot be trialed in the present system. The Supreme Court of Western Australia has experimented with a range of new procedures on a trial basis. Many have been adapted and adopted.
It is also unclear how the establishment of a private court would result in further movement towards the inquisitorial system. It is more likely that justice will be done if the parties are free to pursue their own enquiries rather then having an official inquisitor. There are very real limits on the extent to which managerial judging can be undertaken.[4] To advocate such measures denies the potential to adversely affect foundation values of the justice system, including principles of open justice.
Professor Parker’s article fails to evidence how the establishment of private courts would improve access to justice. It is not clear, for instance, that costs would decrease significantly, if at all. Indeed, delays may occur in private courts due to the potential of hyperlexis, or increasingly litigious behaviour. Further delays may plague the public system with transfer of matters in certain circumstances or appeal from private court decisions.
It should also be noted that no evidence has been advanced to establish any public demand for private courts. Confidence in the justice system and the judiciary form the bedrock on which the authority of the courts is built. The courts work through the voluntary acceptance by the community of their authority to interpret and apply the law.[5] The courts do not provide a publicly funded dispute resolution service to litigants as consumers. They perform a core function of government: the administration of justice according to law. It is conceivable that this function could be performed more economically in private, but it cannot be denied that open and impartial justice best serves the public interest.[6]
[*] The Hon David K Malcolm, AC is Chief Justice of Western Australia.
© 2001 David Malcolm
[1] Mohr R., Gamble H., Wright T. and Condie B., ‘Performance Measurement for Australian Courts’, (1996) 6 Journal of Judicial Administration 156 at 157.
[2] Spigelman, The Hon JJ, ‘Seen to be Done: The Principle of Open Justice — Part II’, (2000) 74 ALJ 378 at 380.
[3] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report Number 89, January 2000 at <http://www.austlii.edu.au/au/other/alrc/publications/reports/89/ch1.html> , 8 June 2001.
[4] Spigelman, above, p.380.
[5] See McGarvie R., ‘Equality, Justice and Confidence’, (1996) 5 Journal of Judicial Administration 141 at 142.
[6] Spigelman, above, p.381.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2001/64.html