Suggestions to facilitate more effective participation
Court processes and procedures
3.146 While most submissions recognised the need for courts and tribunals to reduce delays and, where possible, to simplify procedures, Justice Sackville sounded a note of caution about the capacity of the legal system to embrace wide-ranging changes:
It is no answer to suggest that the courts should sacrifice procedural safeguards and thorough scrutiny of the evidence and the law in the interests of speed and economy.
While efforts should continue to be made to reduce unnecessary delays or expense and to promote alternative dispute resolution, it is unrealistic to expect that the fundamental character of litigation will change. Strategies for promoting access to justice must recognise this constraint.175
3.147 The Law Society of NSW Access to Justice
Report recommended that a docket case management system be introduced into superior courts in NSW, in which each judge has responsibility for the management of a specified list of cases (assigned by the Chief Justice, list judge or head of division), from when the process is initiated through to the determination of the matter, including the supervision of divergence of each case into ADR or other dispute resolution techniques.176
3.148 Mr. Tony Abbott of the Law Council of Australia has suggested that the development of case management schemes should also consider the implications for the litigants themselves:
It may also be ventured that proper case management would require an appreciation of matters such as the level of legal costs, and stress and time implications for the parties, which are occasioned by various case management alternatives. These are just as relevant measures of the desirability of a particular case management order as Court time and the rate of progress through the Court System.177
3.149 The Law Society of NSW Access to Justice Report made a number of additional recommendations in relation to court jurisdictions and processes, with a view to enhancing efficiency and accessibility. These included:
- The creation of a single superior trial court by unifying the Supreme and District Courts. This would create a more efficient and effective superior trial court that would deliver increased flexibility in the way the court manages its caseload, reduce the public’s confusion about the current two-tier system, rationalise administration and generate cost savings by streamlining procedures and practices.
- Increasing the jurisdiction of the Local Court from $40 000 to $100 000 (with appropriate allocation of resources to support the court’s additional workload and education and training of judicial staff), to capitalise on the features of the Local Court, namely its accessibility and its relative simplicity.
- Using the administrative divisions of the Local Courts to carry out its current judicial responsibilities, in addition to delivering a range of other public services, such as registry and shop front services for government agencies.
- Providing access to simplified ADR procedures in the Local Court, and extending the mediation/arbitration function of the Local Court to provide basic procedural advice to unrepresented litigants.
- Making greater use of Intranet and Internet links between the courts/tribunals and between the courts/tribunals and legal practitioners, to reduce litigation costs, eliminate unnecessary (and expensive) formal appearances and save time through electronic lodgement of case materials. Greater use of other telecommunications vehicles such as telephone, video conferencing, teleconferencing and email for direct communication between parties and the Courts would simplify procedures such as callovers which can be handled without the need for parties to attend the Court.178
3.150 Some submissions recommended additional resources for court support schemes. The NSW Court Support Scheme indicated that it needed more resources and support so that it could expand its services into rural and regional areas. It also indicated that it needed financial support for its volunteers, so that they would not be out of pocket for their travel expenses.179
3.151 The Court Support Scheme suggested that changes to the physical layout of courts would assist in making them less intimidating environments.180
3.152 NSW Chamber Magistrates indicated that Local Courts needed more resources so that sufficient time and attention could be given to all disputes coming before them, without leading to delays in court lists.
One of the main things sought by parties in the local court was a fair hearing of their dispute. For many, this amounted to a feeling that sufficient time is spent on their matter for justice to be done. The disparity between court resources spent on high profile cases and on an individual’s Local Court matter led to a perception that their treatment was unfair. The bottom line was that to remove delays and improve public confidence in the legal system, more money needed to be invested, both in the courts themselves and in the legal aid budget.181
3.153 Community roundtable participants expressed a need for re-education programs for judges.182
3.154 Both the Law Council of Australia and the Law Society of NSW strongly asserted the need for increased funding for legal aid for legal representation to address the problem of increased numbers of unrepresented litigants in court.183
Costs of litigation
3.155 The Law Society of NSW recommended that in jurisdictions where the rules preclude the award of costs, there should be provision for fees to be remitted in appropriate circumstances (e.g. where the applicant is the recipient of legal aid or pro bono, or the resulting order demonstrates unfair or inappropriate conduct by the government).184
3.156 Some participants in the National Pro Bono Workshop recommended the establishment of disbursement funds and the expansion of court fee waiver schemes, which would assist in removing some of the financial barriers to initiating litigation.185
3.157 APLA recommended that limitations periods for civil claims relating to injury and death should be lengthened to at least six years.186
Restorative Justice processes
3.158 Several roundtable participants recommended that restorative justice options also be available for adult offenders, particularly young adult offenders.187
3.159 Several participants stated that restorative justice principles have a place in civil claims, where monetary damages may not be the desired outcome.
Individuals or groups of people may desire an apology or some form of public acknowledgment of wrongs done to them in place of or supplementary to monetary compensation - a clear example is the situation of the Stolen Generation.188
3.160 Roundtable participants cautiously advocated greater use of alternative processes using restorative justice principles, but indicated that such schemes needed adequate reliable funding, to allow for expansion and incentives for success.189
3.161 The Inner West Tenancy Advice Service recommended increased funding for Tenants’ Advocates to attend Residential Tenancy Tribunal hearings, to facilitate participation in tribunal hearings by tenants.190
3.162 Roundtable participants recommended the establishment of an independent advocacy service to take a proactive stance on human rights/discrimination issues, and initiate complaints to HREOC on behalf of disadvantaged people.191