Judicial flat earthers clinging to the edge

There is more litigant satisfaction in Baden-Württemberg than in New South Wales ... Cases are conducted more quickly and at less cost ... The Marfording report on civil litigation picks-up where the ALRC failed to take off ... Tulkinghorn reports

According to John Ralston Saul in his book Voltaire's Bastards: The Dictatorship of Reason in the West:

"Ten geographers who think the world is flat will tend to reinforce each others' errors. If they have a private dialect in which to do this, it becomes impossible for outsiders to disagree with them. Only a sailor can set them straight. The last person they want to meet is someone who, freed from the constraints of expertise, has sailed around the world."

Australian lawyer and senior law lecturer Annette Marfording is the last person that the "flat earthers" who dominate Australia's civil justice system want to meet - although superficial welcomes would be turned on as necessary.

She has, figuratively, sailed around the legal world many times. She, assisted by Ann Eyland, has recently produced a fantastically well researched report entitled Civil Litigation In New South Wales: Empirical And Analytical Comparisons With Germany.

A flat earther at workWhile not suggesting a conspiracy to suppress the existence of this new study, it is astounding that there has been zero coverage of it in the mainstream media, and I have found but one reference to it in the blogosphere.

"[The study] included in-depth interviews with 52 trial judges and solicitors in New South Wales and 56 judges and legal practitioners in Baden-Württemberg; and observation of civil proceedings at the NSW District and Supreme Courts and the Regional Court Stuttgart.

The comparative analysis has identified key factors that tend to enhance complexity, delay, and litigation costs in New South Wales, and key factors that are conducive to reducing complexity, delay and litigation costs in Germany."

This research project became necessary after the "flat earthers" at the Australian Law Reform Commission refused to do their job in the 1990s. 

Ms Marfording notes:

"[The] third major reason for this research project was the dismissal by the Australian Law Reform Commission of the Federal Government's interest in the experience of continental European civil justice systems."

Annette Marfording: sailed around the legal worldIn 1995 the federal Attorney General asked the Australian Law Reform Commission to conduct a (massively expensive) Review of the adversarial system of litigation, which would inquire into and report on: "(a)  the advantages and disadvantages of the present adversarial system." 

The commission came back four years later with a 500 page "discussion paper" which said (at para 2.30):

"In the commission's view there is limited utility in simply elaborating and comparing the advantages and disadvantages of the present adversarial system."

The ALRC even dumped the title of the review, changing its name to Managing Justice, which is most misleading, because if there is one thing most of our judges do NOT do, it is to properly manage litigation.

All of which was noted by this column four years ago.

While judges may well claim to be hands-on managers of litigation, Marfording's report attributes NSW litigation delay as being partly caused by "ineffective pre-trial case management" (page 21).

Her Chapter 8 ("Pre Trial Case Management") follows that up:

"One key element that is common to many of the factors found to facilitate delay and expense in New South Wales is a continuing deference to party autonomy over the pace of the proceedings in actual civil litigation practice, despite the recent introduction of the overriding purpose rule and judicial case management powers."

Marfording writes that "senior Australian judges have expressed ... resistance to the possibility of learning from the German system" and she identifies some illustrious flat earthers in that respect: Chief Justices Mason, Gleeson, and Spigelman and Justice Sackville. 

On the other hand there are bouquets for Justices Rogers (NSW) and Davies (Qld) and Deputy Chief Magistrate Cannon (SA).

The main findings of the 599 page study are:

• Litigation costs appear to be considerably higher in NSW than in Germany.
• Civil litigation appears to produce considerably more delay at the District and Supreme Courts in NSW than at the Regional Courts in Baden-Württemberg and Stuttgart. 
• Furthermore, the interview data suggest that satisfaction levels with the civil litigation system, the court system, and the quality of judges were considerably lower amongst interview participants in NSW than in Baden-Württemberg. For instance, interview participants in NSW mentioned one hundred aspects of the civil litigation process as in need of reform, while those in Baden-Württemberg mentioned only 16.

What more needs to be said?

The German civil litigation system beats the NSW one hands down from the public's point of view (not from our lawyers point of view, of course).

The study is so detailed that it is impossible to do justice to it in a short article, but some things stand out.

For example, most German lawyers charge on the basis of fee scales, not on the basis of time (as used to be the case in Australia but not now).

If a lawyer charges on the basis of the statutory fee scale, there is no difference between party/party and solicitor/client costs in Germany.

German lawyers don't end up telling litigants (as ours do) that courts only award two-thirds (or thereabouts) of the winner's legal fees, so that our lawyers can inflate their bills.

If a claim is, for example, $100,000, but wins only to the extent of $10,000, then 90 percent of the claim was lost, so costs awarded to the plaintiff are only 10 percent of the scale.

That discourages extravagant claims. Marfording tells us that ... 

"a lawyer who acts in a matter that has no reasonable prospects of success and did not advise the client expressly to that effect, is liable to the client under tort law, if the lawsuit is lost."

This is a much better way to handle "no prospects of success" cases than the complex "disciplinary" procedures of sections 345 to 349 of the Legal Profession Act 2004, NSW.

She also says that:

"Unlike in New South Wales ... fee review is conducted by the court which presided over the original dispute in which the lawyer represented the litigant in question.

The court must obtain an expert opinion on the appropriateness of the fee charged from the chairperson of the law society.

The court has power to lower the fee to what it regards as appropriate, even down to half of the statutory fee...

Fees can be charged only for one and not several lawyers working on a case... Lawyers professional autonomy in combination with this legal principle lead to the practice that in most litigation cases only one lawyer rather than a team will work on a particular case."

And so on.

A NSW litigantIt is sometimes said (by adversarial lawyers) that our adversarial system is the Rolls Royce of legal systems.

True, our judges and lawyers are driving around in Rolls Royces, but our litigants are driving around in Trabants, which cost as much as Rolls Royces, while it seems that the German litigants are in Mercedes Benzes, which cost what Trabants used to.