546 A

PARRPJ~TTA & DISTRICT LAW SOCIETY

Am,UAL DINNER. PARRAMATTA. 14 AUGUST 1984

ECONOMISTS OF JUSTICE

August 1984

546 A

PARRAHATTA & DISTRICT LAW SOCIETY

Am,UAL DINNER, PARRAMATTA, 14 AUGUST 1984

ECONOMISTS OF JUSTICE

August 1984

P:\i\iL\ ··l.\TT\ :.:. IliSfttlC I' L\\\' SOCI:;:TY

~\:"'S"U.\L Dt~i':ER. P.-\it!tA"\t:\TT.\. 14 AUGUST i'3.Q

ECONO;lilSTS OF JUSTICE

Hen Justice ;'vID Kirby CMG

Chair:nan of the Australian Law Reform Commission

CENTURY OF THE PACIFIC

In teday's edition of the Australian newspapei", it is recorded that the Economist

has declared that tpe 21st century will be the Century of the Pacific. For the

'jurisprudential cousins'l around the Pacific rim, the problems of the future of our

profession are well ~del1tified. Chief Justice Brian Dickson, on taking' office as tile

fifteenth Chief Justice of Canada, in May 1984, declared that IThe two things that

concern me are, one, delays in the law and two, increasing cost, to the extent that you1re

pricing the legal profession and the service they perform out of the range of a large

number of Canadians •••12 President Bok of Harvard University, in his 1982 Cardozo

Lecture, drew a comparison between the United States legal system and the health care

system 20 years ago. 'Access to the courts may be ope~ in principle', he declared. But lin

practice ••• most people find their legal rights severely compromised by 'the cost of legal

services, the baffling complications of existing rules and procedures and the long,

frustrating delays involved in bringing proceedings to a conclusion. From afar, therefore,

the legnl system looks grossly inequitable and inefficient,•3 In his annual report to the

American Bar Association in February 1984, just six months ago, Chief Justice Burger

reminded the delegates of the address 78 years earlier by the young Roscoe Pound on 'The

Causes of Po'pular Dissatisfaction with the Administration of Justice,.4 At least

nowadays we do not run the risk that criticisms of the Bar will not be pUblished. Indeed,

some say tl18t we have become almost obsessively sclf-eritical.

The New Zeulund Law Conference held in Rotorua in April 1984 addressed much

of its attention to access to justice and the future of the legal profession. The lead paper

on lAcces~ to the Courts' was offered by Justice Tom Eichelbaum.5 He began his pa?cr

with the reminder:

I

P;\i\iL\ ',l.\Tl' \ :.:. IliSfi{!C I' L\\\' SOCI:;:TY

~\:"'S"U.\L Dt~i':ER. P.-\it!tA"\t:\TT.\. 14 AUGUST i'3.Q

ECONO;\ilSTS OF JUSTICE

Hen Justice ;OVID Kirby CMG

Chair:nan of the Australian Law Reform Commission

CENTURY OF THE PACIFIC

In teday's edition of the Australian newspapei"J it is recorded tha.t the Economist

has declared that tDe 21st century will be the Century of the Pacific. For the

'jurisprudential cousins'l around the Pacific rim, the problems of the future of our

profession are well ~dentified. Chief Justice Brian Dickson, on taking office as tile

fifteenth Chief Justice of Canada, in May 1984, declared that IThe two things that

concern me are, one, delays in the law and two, increasing cost, to the extent that you1re

pricing the legal profession and the service they perform out of the range of a large

number of Canadians ••• 12 President Sok of Harvard University, in his 1982 Cardozo

Lecture, drew a comparison between the United States legal system and the health care

system 20 years ago. 'Access to the courts may be ope~ in principle', he declared. But 'in

practice ••• most people find their legal rights severely compromised by 'the cost of legal

services, the baffling complications of existing rules and procedures and the long,

frustrating delays involved in bringing proceedings to a conclusion. From afar, therefore,

the legnl system looks grossly inequitable and inefficient,.3 In his annual report to the

American Bar Association in February 1984, just six months ago, Chief Justice Burger

reminded the delegates of the address 78 years earlier by the young Roscoe Pound on 'The

Causes of Po'pular Dissatisfaction with the Administration of Justice,.4 At least

nowadays we do not run the risk that criticisms of the Bar will not be published. Indeed,

some say tllst we have become almost obsessively sclf-critical.

The New Zeulund Law Conference held in Rotorua in April 1984 addressed much

of its attention to access to justice and the future of the legal profession. The lead paper

on lAcces~ to the Courts' was offered by Justice Tom Eichelbaum.5 He began his pa?cr

with the reminder:

I

- ~ -

~,Ill~(: t,lere ·...·ere courts ant! lawyer:;. Hamlet tllOught the l:l.'··.~ del3.)'

su[i:clIJ:ltly im;:)QrH:l.nt to mention it in his soliloquy..-\nd nothing hns clw.,,::;eJ.ii

t/latresourl1esscarce

The inescapable fact is that no sOl1iety is likely to provide a lawyer and a

formal jUdil1ial proceeding to anyone with a tenable legal claim, and it is even

less likely that a society will encourage lawyers to reach out affirmatively to

mobilise rights-enforcing litigation among all such individuuls. Even if that

were a desirable goal, it would be inconceivable to commit enough resources to

provide 'Rolls Royce justice' to everyone a.nd every legal claim.l 0

~ooks are now being written about the economics of jus~ice.ll Courts of the highest

authm'ity are considering frankly cost/ocnefit analysis of a rudimentary kind, in their

judgments.l 2 Law reform agencies, in recommending improvements to the legal system,

are I:l:pproaching their suggestions with a candid endeavour to itemise, or at ledst identify.

the majur costs and bcnefiu.I 3 All of this i:; thoroughly desirable, if somewhat belated.

It requires lH to address much more directly than in the past, the deployment of the

In AustrJ.lin, D..'; you !mow, there have been simIlar themes. The rederal

.\ttorn"y-Gencr:..ll, Sen~to, Gareth Evans QC, told 8 recent confer'=l1ce on 'The Challe:lge

of Legal Aid' that, unles3 radicu.l c:lange:; were introduced in the legnl aid system, it would

soon be lliluvailable to any but the very peor. In a financial sense, he declared, the system

was 'reaching b,e::rking point'.? He pointed out that in the previous three years Federal

expenditure on legal aid in Australia had risen by 52.2% in rea.l terms. However, the

number of people assisted had increased by only 20.3%.8 The common feature in these

and numerous other statements of self-critici.'5ffi in Australia and abro39 is 11 growing

recC'"gnition throughotlt the common law wol'1d of a need for increased concern about the'

efficiency with \...·hich lawyers deliver their product to the community. And that is the

essence of this address. Everyone agrees that times are changing. The problems

confronting the legal-profession in th~ 21st century will, in many ways, be different from

those that have been around for a long time. Technology, alone, will ensure this. 9 It is

healthy that there is an increasing concern about the efficiency of lega.l practice, the

business of la 'N- and the administra~ion of justice. There is much more candour in

acknowledging the limitations of the justice system. For a long time, we lived in t~e

dream world that the law and lawyers could prOVide solutions for all of society!s problems

end dis~utes. Now, witil increasing clarity, we are perceiving our limitations:

- :! -

~'Ill.::!(: t,lere · ... ·ere courts and lawyer.'), Hamlet thought the l:t.'··.~ Del3.)'

su[i:ci";:1t!y im;:)Qrt~nt to mention it in his soliloquy .. -\nd nothing hns c!w.,,:;eJ.ii

In AustrJ.!in, D..'; you !,:now, there have been simIlar themes. The rederai

.\ttorn"y-Genc:':.li, Sen~to, Gnreth Evans QC, told 8 recent confer.:nce on 'The Challe:lge

of Lesal Aid! thut, unles3 radicul c!lange:; were introduced in the legnl aid system, it would

soon be lliluvailable to any but the very peor. In a financial sense, he declared, the system

was 'reaching b,e::rking pOint',7 He pointed out that in the previous three years Federal

expenditure on legal aid in Australia had risen by 52.2% in real terms. However, the

number of people assisted had increased by only 20.3%.8 The common feature in these

and numerous other statements of seli'-critici.'5m in Australia and abro39 is 11 growing

recognition throughollt the common law wol'ld of a need for increaSed concern about the'

efficiency with \ ... ·hich lawyers deliver their product to the community. And that is the

essence of this address. Everyone a:;;r-ees that times are changing. The problems

confronting the legal-profession in th~ 21st century will, in many ways, be different from

those that have been around for a long time. Technology, alone, will ensure this. 9 It is

healthy that there is an increasing concern about the effiCiency of legal practice, the

business of la 'N- and the administra~ion of justice. There is much more candour in

acknowledging the limitations of the justice system. For a long time, we lived in t!-le

dream world that the law and lawyers could provide solutions for all of society!s problems

end dis~utes. Now, witil increasing clarity, we are perceiving our limitations:

The inescapable fact is that no sOC!iety is likely to provide a 19.wyer and a

formal judiC!ial proceeding to anyone with a tenable legal C!lairn, and it is even

less likely that a SOCiety will encourage lawyers to reach out aifirmatively to

mobilise rights-enforcing litigation among all such individuals. Even if that

were a desirable goal, it would be inconceivable to commit enough resources to

provide 'Rolls Royce justice' to everyone a.nd every legal claim.l 0

~ooks are now being written about the economics of jus~ice.ll Courts of the highest

authm'ity are conSidering frankly cost/ocnefit analysis of a rudimentary kind, in their

judgments. 12 Law reform agencies, in recommending improvements to the legal system,

are I:l:pproaching their suggestions with a candid endeavour to itemise, or at IC;:lst identify,

the majur costs and bcnefiu.l 3 All of tl1i::; i:; thoroughly desirable, if somewhat belated.

It requires lH to address much more dil"cctly than in the past, the deployment of the

scarce resourC!es t/lat

" -..>";':':lC~Y ,:UlI ;1:i.;'~<.! al;:ti:.-;,;:,l~ i\) U1C 1.1 ..... an\.J i.l·.... ye: fJ, .!lel::" r ..,;lc :n 5u~u:ty. Uclll:!I"lh" h·;I~~

U1.lt r ...ll~ l::; a;r:J. then C:13urinb th~ ~Te;lt~S[ e:'(icicilcy ill th~ [).::rfor':nun~e u{ C(o,lsequc::u-.JI

NEW l:-l!TIATIVSS

In response :0 the eMly perceptions of the above sim;>lc truths, importai1t

reiorms ha.... e bC6'un to ap~ear in the legal systems of the common law world. Time and

space ?ermit only a sum:nnry oi some of these. But the catalo:;-ue includes the following:

(1) Prevention of legal problems. Just as in medicine where more attention is now

bei;l& addressed to preventative measures, so in the law. Using the law, or

redeiining ti,e law, to keep people out of legal trouble, is a major thrust of 1a\'l

reform tOday. In the Australian Law Reform Commission's (ALRe) first report

on ins31ve:lcy law reform 14 attention was paid to the underlying problem of

peo?le who get into debt, rather than dealing exclusively with the late:;!

sym~tom, such as _the failure to [Jay a debt in due time. The Commission

recommended legal· machinery to facilitate credit c~)Unselling in certain

circumstances. The basic scheme proposed by the Commission has recc=ttly been

accepted by the Government)5

(2) Communi!\' legal education. Another way to make the legal system work better

may be to educate Our citizens more sys~ematicany in its rules. Legal studies is

now one of the mest popular secondary courses in Australian high schools, led

by Victoria.16 In the past, law reformers have traditionally focused on

pro~esals for change in substantive rules of law, the creation of new tribunllls

and changes L'l legal procedures. Much less attention has been paid to education,

i::cluding community legal education. Yet alerting people to the existence and

purpose of e.t least be.sic rules may be the beginning of the prevention of legal

conqicts or of their orderly resolution. Community legal education may

promote a &reater measure of assertiveness in the enforcement of jl:st legal

claims. It may help overcome the cbstilcle race which the poor, the

ina.ticul~te, the igno!'ant and the disadvantaged have to run in securing and

i.1ssel'"ting legal ,right~. R.cform~ in Austrllliu have la.tely paid more attention to

this issue. Legislation nowadays commonly requires tile notification of riglHs

llnd the p.ntitlcmel1t~ to reasons fa.. administrntive l 7 and even private sector

decision~.lB The suggestion by the ALRe that insure!.... should have to givc

reusons for the cancellation of insurllJlcc pvlicies und for the {'cfusal to wi"ite

insurance h;!S now been accepted by the Au:,tl'lllial1 Parlin rTlcnt. 19

" -->";':':lC~y ,:UlI ;l:i.l.~o.! al;:ti:.-;,;:.l~ i\) U1C 1.1 ..... an\.J i.l· .... ye: fJ, tnel::- r . .,;lc :n 5u~u:ty. Uclll:lI"lh" h·;I~~

U1.lt r ... lh.! l!:) a;rj then C:13urinb th~ Jre.lt~S[ .;:'(icicilcy ill thi..! [j.:!rfor-muni!e vi" c .. ·,lsequc::u-l;

NEW l:-lJT!ATIVSS

In r-:sponse :0 the eMly perceptions of the above sim;>lc truths, important

reforms ha .... e oC6'un to ap~ear in the legal systems of the common law world. Tlme and

space ?ermit only a sum:nnry oi some of these. But the catalo:;-ue includes the following:

(1) Prevention of legal problems. Just as in medicine where more attention is now

bei;l& addressed to preventative measures, so in the law. Using the law, or

redeiining tl,e law, to keep people out of legal trouble, is a major thrust of 1a\'l

reform tOday. In the Australian Law Reform Commission's (ALRe) first report

on ins31ve:lcy law reform 14 attention was paid to the underlying problem of

peo?le who ~et into debt, rather than dealing exclusively with the late:;t

sym~tom, such as _ the failure to pay a debt in due time. The Commission

recommended legal· machinery to facilitate credit c~)Unselling in certain

eireumstanees. The basic scheme proposed by the Commission has reeeJt1y been accepted by the Government)5

(2) Communit\' le2;al education. Another way to make the legal system work better

may be to educate Our citizens more sys~ematicany in its rules. Legal studies is

now one of the mest popular secondary courses in Australian high schools, led

by Victoria.l 6 In the past, law reformers have traditionally focused on

pro~osals for change in substantive rules of law, the creation of new tribun1l1s

and changes L"l legal procedures. Much less attention has been paid to education,

i::cluding community legal education. Yet alerting people to the existence and

purpose of e.t least be.sic rules may be the beginning of the prevention of legal

conqicts or of their orderly resolution. Community legal education may

promote a &reater measure of assertiveness in the enforcement of jl:st legal

claims. It may help overcome the c!Jstacle race which the poor, the

ina.ticul~te, the ig'no!'ant and the disadvantaged have to run in securing and

i.1ssel'"ting le~al ,right~, R.cform~ in Austrlllia have lntely paid more attention to

this issue. Legislation nowadays commonly requires tile notification of riglHs

ilnd the p.ntitlcmel1t~ to reasons fo .. administrntive17 and even private sector

decision~.lS The suggestion by the ALRe that insure! .... should have to give

reusons for the cancelllltion of insurllJlcc pvlicies und for the {"cfusal to wi-ite

insurance h;!S now been accepted by the Au:;tl'slial1 PnrlillrTIcnt. 19

,.)) i':-·.Ae:):':'~'".:.b.~i 10..:";<.11 e.jul~IHI()a. i...er-;tll ~u.lI.:l1;lun rH.!~,j~ i~n:JrO\'l...'::lC:lt 1:\ L'1e

p:"0fe:>SI01I as wet~ as in thl2" COr!lI:ii.iill'i.::. Til!"; i'vint ,vtj"; ·~Hl.,je ef.-"':~~~j·,·.,:;y ;-~y

;,\'c kno\',l that a poorly trained, po"rly ;>r,~pC1rcd lawye:f Of~C:1 tu:..:c:; ;1 .... -=ck

to try a onc- or two-day case.20

Chief Jl.1stice Burger has repeatedly essertcd that 25 to 3q',~ of lawyers

presenting cases L, UnitBd States courts are 'incompetent' and that this is not a.

tolerable figure. 21 Ten years ago he suggested that up to n third or one-h3.1f

of the lawyers coming into United St':ltes .courts were not really qualified to

render fUlly lldequnte representation and that this contributed to the large cost

and delays in the courts. If this figure is even partly accurate. and if it ap;>lles

to Australia (as it ;>ertly does) it suggests that something is going wrong in the

selection of lawyers and in their preparation and training for professior:al life.

Nor do I exempt the jUdiciary from the need for training and retraining. In the

Boyer Lectures I called a ttention to the well established system of judicial

training in the United States. 22 In Australia it was suggested that formal

training of this kir.d was not necessary because of the appointment of juct;;es

from the separate Bar: But, though our problems may be less acute, tile rapid

chan6'es in the law and the new tasks daily t>eing imposed ui?on judges for wl1ich

their training and experience co not lVell equip them, all suggest the need for

more systematic institutions, procedures and obligations of judicial education,

if only in the name of efficiency.

(4) Specialist tribunals. In that name, most legal jurisdictions have set about the

creation of specialist tribunals to deal expeditiously and, cheaply with routine or

specialist legal problems. We have seen the creation in the lest decade of a

number of Federal Courts, inclUding the Federal Court of l\.ustralia23 and the

Fami.ly Court of Australia.24 The Family Court was established only after

negotiations with the States made it plain that the State Supreme Courts (which

could ho.ve been vested with Federal jurisdiction) Vlould not wholeheartedly

embr.l1cc thl3 innovative reforms of procedures insisted upon by the Federal

Parlia:nent. The interaction between Fedel'Hl Courts and State Courts and

courts lind tribunals promises inefr'icicncie::: in the overlap of jllrisdiction which

may become n major source of concern about discconomy and inefficiency in

t!le low in Australia in the decades aha'ld. 25

,.)) i':-·.Ae::;:':'~'".:.b.~i 1o..:..;<.1! e.jUl~IH1()a. i...er.;tll ~u.lI.:l1;lUn rH.!l!,j~ i~n:JrOI.t...'::IC:lt 1:1 L'1e

p:-0fe:>S\o1I as wet~ as in thl2- Ci.HIlI:ii.iill'i.::. Til!" i'v;nt ,vtJ"; "w"je ef.-":_~~j"'':;Y ;-~y

'.\'c kno\'J that a poorly trained, po"rly ;>r,~pC1rcd lawYC:f O:~C:1 tu:..:c:; ;1 .... -=ck

to try a onc- or two-day case,20

Chief Jl.1stice Burger has repeatedly essertcd that 25 to 3q',~ of lawyers

presenting cases L, UniiBd States courts are 'incompetent' and that this is not a

tolerable figure. 2l Ten years ago he suggested that up to n third or one-h3lf

of the lawyers coming into United St>ltes .courts were not really qualified to

render fully lldequn.te representation and that this contributed to the large cost

and delays in the courtS. If this figure is even partly accurate, and if it ap;>lles

to Australia (as it ~ertly does) it suggests that something is going wrong in the

selection of lawyers and in their preparation and training for professior:al life.

Nor do I exempt the judiciary from the need for training and retraining. In the

Boyer Lectures I called a ttention to the well established system of judicial

training in the United States. 22 In Australia it was suggested that formal

training of this kir.d was not necessary because of the apPointment of jud;;es

from the separate Bar: But, though our problems may be less acute, tile rapid

chan6'es in the law and the new tasks daily being imposed ui?on judges for Wl1ich

their training and experience co not lVell equip them, all suggest the need for

more systematic institutions, procedures and obligations of judicial education,

if only in the name of efficiency.

(4) Specialist tribunals. In that name, most legal jurisdictions have set about the

creation of specialist tribunals to deal expeditiously and- cheaply with routine or

speCialist legal problems. We have seen the creation in the lest decade of a

number of Federal Courts, including the Federnl Court of Australia23 and the

Fami,1y Court of Australia.24 The Family Court was established only after

negotiations with the States made it plain that the State Supreme Courts (which

could ho.ve been vested with Federal jurisdiction) Vlould not wholeheartedly

embr.acc thl3 innovative reforms of procedures insisted upon by the Federal

Parlia:nent. The interaction between Fedel'Hl Courts and State Courts and

courts and tribunals promises inefr'ieiencie::: in the overlap of jllrisdiction which

may become n major source of concern nbout discconomy and inefficiency in

t!le low in Australia in the decades ahe..'ld. 25

- 5 -

,,;J';.iiltn~,~S in til.;' aivi.. ioll oi court :JUSin..:!.;;; ill H S~C~I ...dI';l~j w.qy. The

...;..'?otntm<::nt of s~e~!aU:;t jUQJe" to .:ir~a! Wi:',l cooniTIercinl di3~utes IS now well

e::;tat)li':iiH.:d i:1 :\t.:.:;t:"J.lin.2G !t hils ,c.::ently been prcposeu for !-:ew

ZC::I.lanJ.27

Although tlH~:"e is a yroblem in uvur-cl:iteg-ori3uti,Jn and over-specialisation, the

fect hU:::i n:)w to b~ fMced that s(.le~itilist bodl~S se;vcd by speciu1ist lawyers can

procc.3s routine problems in 11 much more cost-effective and speedy ·.V3.y. \'Ie

will see more of it.

(5) InQuisitorial technigues. Another suggestion heard with increasing insistence is

that jUdges should pay a .more active part in the trial to move things along and

to get lawyers quickly to the essential issues. Summing uj? the recent ~ew

Zealand conference, Chief Justice Sir Ronuld Dl:1vison acknowledged that, at

least in commercial adjudication, the judge must 'take control of the

proceedings almost from the outset' and direct the course of the interlocutory

steps up to the trial.2B Within the legal profession, views differ about the

desirabi,lity of the activist jUdge. But the growing concern with efficiency end

the realisation of the very large pUblic invest.ment that is involved in the use of

jUdge time, are now forcing the reconsideration of the conception of our judges

as 'neutral umpires'. Sir Richard Eggleston has even suggested that by the turn

of the cent1.lry judges will afford lawyers a given time within Which to refine

their evidence and argument. The skill of the lawyer will then be maximisation

of the available time for oral evidence dnd argument.

(6) Arbitration. The growing use of arbitration is likely to continue, as one response

to the delays and costs of courts and tribunal>'>. Arbitration has been.uround for

a long ·time, though now new attention is being pa~dJ at least in Australia, to

improving its proeedures. 29 Sometimes commercial arbitration is infinitely

preferable to determination by the courts 1 as a means of achieving speedy ~nd

commonsense resolution of commerci~ and other disputes. By and large

businessCls: at least in Australia, regard the courts as a place of last resort.

They look elsewhere for extra-judicial mechanisms which nrequicker, cheaper,

less technical, less stressful und less time-l.!onsuming for the business people

inVOlved. In Ne ..... South Wales, an innoviltive Use of expert arbitrators to denl

with partiCUlarly technical questions that arise in commercial cases has now

been introduced by Justice Roger~; of the State Supreme Court. He made it

plain that arbitration and the use of court-appointed experts had to be 'moulded

tl') the requirements of the moment'.3D

- 5 -

"'.h;.iiltn~,~S in til';> ai"Vi .. joll oi court :JUSin'.!!.;..; ill H s~c~lt!ll';l!j w.qy. The

... ;..'?otntm<::nt .Jf s;=lcC!!ai;:;t jUQJe .. to ,:ir.!a! Wi:',l cooniTlercinl di3~utes IS now well

e::;tat)lio.;iH.:d i:1 :\t.:.:;t:,ulin.2G !t hils ,c.::ently been prcposetJ for !-:ew

ZC::I.lanJ.27

Although tlH!:-e is a j?roblem in uv<.!r-ce.teg-ori3uti.)n and over-specialisation, the

fect ha.;i n:)w to b':! fMced that s(.le~itilist bodl~S se;vcd by speciu1ist lawyers can

procc.3s routine problems in il much more cost-effective and speedy ·.V3.y. \'Ie

will see more of it.

(5) InQuisitorial technigues. Another suggestion heard with increasing insistence is

tilat judges should pay a .more active part in the trial to move thing3 along and

to get lawyers quickly to the essential issues. Summing uj? the recent ~ew

Zealand conference, Chief Justice Sir Ronuld Dc1.vison acknowledged that, at

least in commercial adjudication, the judge must 'take control of the

proceedings almost from the outset' and direct the course of the interlocutory

steps up to the trial.2B Within the legal profession, views differ about the

desirabi.1ity of the activist judge. But the growing concern with efficiency end

the realisation of the very large public invest.ment that is involved in the use of

judge time, are now for-cing the reconsideration of the conception of our judges

as 'neutral umpires'. Sir" Richard Eggleston has even suggested that by the turn

of the cent'.lry judges will afford lawyers d given time within Which to refine

their evidence a.nd argument. The skill of the lawyer will then be maximisation

of the llvailable time for oral evidence dnd argument.

(6) Arbitration. The growing use of arbitration is likely to continue, as one response

to the delays and costs of courts and tribunal>'>_ Arbitration has been .uround for

a long ·time, though now new attention is being pa~dJ at least in Australia, to

improving its proeedul'es. 29 Sometimes commercial arbitration is infinitely

preferable to determination by the courts 1 as a means of achieving speedy ~nd

commonsense resolution of commerci~ and other disputes. By and large

businesses: at least in Australia, regard the courts as a place of last resort.

They look elsewhere for extra-judicial mechanisms whiCh nre quicker, cheaper,

less technical, less stressful und less time-I!onsuming for the business people

inVOlved. In Ne ..... South Wale;;, an innoviltive use of expert arbitrators to denl

with particularly technical questions that arise in commercial cases has now

been introduced by Justice Roger~; of the State Supreme Court. He filllde it

plain that arbitration and the use of court-appointed experts had to be 'moulded

tl') the requirements of the momcnt,.30

- 5 -

:.;, t,;~-l.:,~ ;;,";;;""; ;~tL::''':"'~,;I.s USl.! of arbilt',iti0,-1 nus ::>eea Ijltr0,lucl~d 'uY,~"!li"::h I:lU

L',l;·;·j.>ter::. ,II"I,J :,.)~i..:\t;)r::; hCl'.'l.! t>ccn ap~olnte,J nr;'ltrators. They itr...· n,,;o:ninilled ;)y

tJ~e Law Soc:ety and tile Bar ,\5:::ociation. \lo,:;t m<.:.tte:·;j ar~ dCflil with in t;l.cir

,y.·.·:l offices or chu,nbers. O~ 1 450 CO:1t\.lstcd CtlSCS referred .,Jut to o!"~)itrut.,Jr~; i:1

t~~c fi:-st six mc;,t:-Js of t:,o oj)cration of tile scheme, nbaut 830 were C:~tcrmincd.

Tilcre were reqLl8sts far ['ellcUl'jng in caurt in 35 cases. The Past Pr~5ident of"

the NSW Law Society considered tlla[ tile results were 'excellcnt'. The cost of

disposing of the cases referred to arbitration in this informal way was a

'fraction' of what it would have been jf the matters had been dealt with in

court. Experience has also sho~n that bet-''leen a half and two-thirds of the

eases referred out to arbitration under this scheme are scheme 'in fact settled

before the he.:'1ring of the arbitration or on the day of the heuringl• 31 ! believe

this idea will spread throughout Au.stra.lia and will involve more and more of our'

lawyers in a cost-effective way. But it will cellon new skills and ti:l.lents.

(7) Legal aid. -Legal aid has existed in various forms in common law countries for

centuries. However, the 19705 saw the birth and growth in Australia of a large

network of private and public legal aid faeilities. 32 Side by side with the

Federal initiatives came the f1oil~ering of numerous 'lc5'31 centres'. They

included the initiatives of priva.te lawyers in the suburbs of the major cities,

such as the Fitzroy and Redfern Legal Centres, and later the establishment of

the Aboriginal Legal Service to provide direct azsistance to the dfsadvantaged

Aboriginal population of Australia.33 In the priv,ate legal profession,

suggestions have been made for the introduction of contingency fees as the

'free enterprise answer to legal aid'. In connection with the ALRC project on

class actions in Australia, it has been said that, without such contingency fees,

the class action would not be effective.34 Indeed, that is a criticism of the

recent Victorian legislation on repl'esentative actions for damages, namely that

it will not work without contingency "fees.

(8) Reform of legal profession. Another suggested means of identifying unmet

needs for legal services and getting people across the threshold of the 1a wyer's

office has been the reform of the rules governing the legal profession. A

number~of the States of Australia have now permitted informative ad\'erti~ing,

including fce advertisinG'. In Australia, professional advertising by lEl~~yers is

now permitted, under certain conditions, in Western Austrnlia, South Australia,

Victoria, New South Wales and, most recently, the Australian C"'lpital Territory.

- 5 -

.'.;, t,;~-i,..:.~ .;;..;; .. ...: ;~tL.::''':.'~';I.s us!.! of arbilt',iti u ,-, nus ::>eea Ijltr0,lucl~.j tly ,~·lli..:!h I;:;U

L',l;·;·i.>ter::. ,I/"I,j : . .)~i..:\t,Jr::; ~Ci'''l.! t>ccn ap~olnte,J nr;'ltrato;-s. They itr ... · n,,;o:ninilled ;)y

tl1e Lnw Soc:ety and tile Bar ,\5:>:ociation. \lo.:;t mc.:.tte:'.j ar~ dCflil with in t;l.cir

,y,'.':l offices or chu.nbers. O~ 1 450 co:-ot(.!stcd CtlSCS referred .,Jut to o!'~)itrut,Jr~; i:1

t:~c fi:'st six mc;.t!1s of t:)O oj)cftltion of tile scheme, nba:.!t 830 were C:~tcrmincd.

Tilcre were reqLl8sts far ['elleal'jng in caurt in 35 cases. The Past Pr~5ident of·

the NSW Law SOCiety considered tl18t tJH~ results were 'excellcnt'. The cost of

disposing of the cases referred to arbitration in this informal way was a

'fraction' of what it would have been jf the matters had been dealt with in

court. Experience has also sho~n that bet-.l/een a half and two-thircs of the

eases referred out to arbitration under this scheme are scheme 'in fact settled

before the he.:'1ring of the arbitration or on the day of the heuring'.3l ! believe

this idea will spiead throughout Austra.lia and will involve more and more of our'

lawyers in a cost-effective way. But it will cellon new skills and ti:l.lents.

(7) Legal aid. -Legal aid has existed in various forms in common law countries for

centuries. However, the 19705 saw the birth and growth in Australia of a large

network of private and public legal aid faeilities. 32 Side by side with the

Federal initiatives came the f1oil~ering of numerous '1e5'31 centres'. They

included the initiatives of private lawyers in the suburbs of the major cities,

such as the Fitzroy and Redfern Legal Centres, and later the establishment of

the Aboriginal Legal Service to provide direct azsistance to the dfs:ldvantaged

Aboriginal population of Australia.33 In the priv.ate legal profession,

suggestions have been made for the introduction of contingency fees as the

'free enterpL"ise answer to legal aid'. In connection with the ALRC project on

class actions in Australia, it has been said that, without such contingency fees,

the class action would not be effective.34 Indeed, that is a criticism of the

recent Victorian legislation on repl'esentative actions for damages, namely that

it will not work without contingency.fces.

(S) Reform of legal profession. Another suggested means of identifying unmel

needs for legal services and getting people across the threshold of the la wyer's

office has been the reform of the rules governing the legal profession. A

numbcr~of the States of Australia have now permitted informative ad\'erti~ing,

including fee advertisinG'. In Australia, professional ndvertising by la~~yers is

now permitted, under certain conditions, in Western Austrnlia, South Australia,

Victoria, New South Woles and, most recently, the AUstralian C"lpital Territory.

uS u rl'''iult of a SUtJr~.ne (;o,Jrt aecisiol1, in c"'':''}' ::iiute of th-.: ;';nion. In the :'::lit·:,.-::

t\i!l6'dum it WU$ ttnilOW1(·"C i~l .June 198-i t;l[lt t;~E: en:: oa nJvert:.5ir:.:; by s01icito!'s in

Ell~11Hld und ivules ;...·ili ~nd on 1 October i934.

Ho'.... evel·. mJ.;cll Clore radical rcfo:orns are proposed in tile reports of the New

South \Vales Law Reform Co:n mission on rcfor:n of the leg-al profession in thnt

State.35

The proposals include the abolition or modification of mono[)olistic practices

Hnd land title conveyllncing, change in the t".'lo-eounsel rule, fusion of the Ba!"

and solicitors' branches of the profession, changes in the handling of complaints

Bnd changes in the organisation and government of the legal profession. The

reforms in. New South Wales, upon which legislation has been promised, are seen

as setting the pace for the rest of Australia a.nd, commendably, some of them

have been welcomed by the legal profession.

(9) Technolog'V and efficiency. The concern about efficiency has led to new

attention to the use of technology and the improvement of dispute resolution

p·rocedures. The use of the telephone for taking evidence is now common in a

number of Federal tribunals: in Australia, notably in social security claims.36

The· satellite has been used in Canada to beam oral a.rgument across the

continent to the highest court. 37 Such a facility has been talked about in

Australia. The use of computers to· monitor court world'lows llnd the

introduction of word processors is now common in the courts. Speci::l.l attention

is being pntd to the use of-written argu:nentation to reduce oral advocacy. When

I put them forward in my Boyer Lectures38 in Australia on the jUdiciary, it

was roundly criticised by members of the jUdIciary and the legal profcssion.39

But a number of judges of our tradition are now maldng this same point. Sir

Anthc:my :\lason recently predicted an end to the availability of unlimited time

for argument, especially in courts of appeal. He pointed out that lthe d~livery

of a written case or $uomission is a more effective and helpful means of putting

a court in possession of the issue and of the basic contentions, even if it is to be

follo\'?cd by oral elaboration'. I do not e:'qect that the IC&"l1l profession in

Australia. will cmbr.9.ce the idea of written argumentation with cnth:.rsinsm.

Howevel' its mllflifcst efficiency Ilnd the pressure all the courts will certltinly

produce moves in this direction in the not too distAnt future.

llS U rl'..,;ult of a Su~r~.ne (;o,Jrt aecisiol1, in c"''::-}' ::iiute of thL! ;';nion. In the :'::lit·:,.-::

t\i!l6'dum it WU$ ttnilou:l("'C i~l .June 198-i t;l[1t t;~E: b~:;: oa nJvert:.5ir:.:; by S01:~it0!'S in

E!l~11Hld und iV-oles ;,,.ili ~nd on 1 October i934.

Ho' .... evel·. mJ.;cll Clore radical rcfo;orns are ;:>roposed in tile reports of the New

South \vales Law Reform Co:n mission on rcfor:n of the leg-al profession in thnt

State.35

The proposals include the abolition or modification of mono[lolistic practices

Hnd land title conveYllncing, chnnge in the tNo-counsel rule, fusion of the Ba!'

and solicitors' branches of the profession, changes in the handling of complaints

Bnd changes in the organisation and government of the legal profession. Tile

reforms in. New South Wales, upon which legislation has been promised, are seen

as setting the pace for the rest of Australia a.nd, commendably, some of them

have been welcomed by the legal profession.

(9) Technologv and efficiencv. The concern about efficiency has led to new

attention to the use of technology and the improvement of dispute resolution

p·rocedures. The use of the telephone for taking evidence is now common in a

number of Federal tribunals. in Australia, notably in social security claims.36

The' satellite has been used in Canada to beam oral a.rgument across the

continent to the highest court. 37 Such a facility has been talked about in

Australia. T!1e use of computers to· monitor court world'lows llnd the

introduction of word processors is now common in the courts. Speci::tl attention

is being patd to the use of-written argu:nentation to reduce oral advocacy. When

I put them forward in my Boyer Lectures38 in Australia on the judiciary, it

was roundly criticised by members of the judIciary and the legal profcssion.39

But a number of judges of our tradition are now maldng this same point. Sir

Anthc:my :\lason recently predicted an end to the availability of unlimited time

for argument, especially in courts of appeal. He pointed out that lthe d~livery

of a written case or $uomission is a more effective and helpful means of putting

a court in possession of the issue and of the basic contentions, even if it is to be

follo\,?cd by oral elaboration'. I do not e:·qcct that the IC&"111 profession in

Australia. will cmbrsce the idea of written argumentation with cnth'J."sinslTI.

HoweveJ' its mllflifcst efficiency Ilnd the pressure 011 the courts will certltinly

produce moves in this direction in the not too distAnt future.

.' -

,,~).,)ut tile role of the legel profc:."Sio;l to lust. Our :5elf-coil~E!;Jtion ht1~ been.

,:l'o;erwheLi1:ilgly, t~dt of mcrt:~nildes in tile bus;:lcs~ of confiict. The nc'·v

De?uty P:-ime :Ainistcr of New Zealand, and iormer Law Professor. Dr Gevifre:,r

Palmer, told an audience at the Faculty of Law in the University of Windsor in

Canada in ~arch 1084, of thB difiicalty he had, as a law teacher, in introducing

to the University of Iow!l in 1969, an lanti-torts! coursc,.tO

To concentrate upon disputes and their resolution it is not llccessa.y to

concentrate upon the law and courts. The task of resolving conflicts may

not be served best or most efficiency by dealing with legal rules llnd

courts. There are other ways. If negotiatio:l is 11 better way then

litigation, how does one negotiate? La"'; students should be taugllt how to

negotiate. '''"hat sort of disputes could be dealt with by medintion? Who

can mediate? How do they do it? How does arbitration work? ... It was 11

great deal easier to state the ccnce9tion of the courses than to execute

theiTI in a manner which kept up the level of student interest and provided

scope for reasonable examination. Both these courses were unpopul9.r and

ultimately they were abandoned at iowa. 1 often wonder, if an empirical

survey were taken of practitioners who were subjected to those courses,

what they wowd think of them after ten years of practising It! w..t 1

In like vein, and prObably with a similar reaction, Chief Justice Burger's recent

address called on lawyers to be healers:

Our distant forebears moved slowly from trial by battle and other

bUL'baric means of resolving conflicts and disputes, and we must rno"'e

away from total relian~e on tile adversary contcst for resolving an

disputcs. For some disputes, trials will be. the only melIns, but fo!" many,

'trials by the advcrsury contest must in time go the wny of the nncicnt

trial by battle and blood. Our ~ystem is too costly, too painflll, too

destructive, too inefficient ior 8 truly civilised people. To rely on the

advcl'sary process 8S the princip~l rnean~ of resolving conflicting claims is

u mistake th!lt must be corrected.

.' -

,,~).,)ut tlle role of the legel pr-ofc:."Sio;1 to lust. Our :5elf-c0i1~E!iJtion ht1~ been.

,:l'o;erwheLi1:ilgly, t~dt of mcr<.!'~nildes in tile bus;:lcs~ of confiict. The nc'·v

De?uty P:-ime :v1inistcr of New Zealand, and iormer Law Professor. Dr Gevi~re: ..

Palmer, told an audience at the Faculty of Law in the University of Windsor in

Canada in ~arch 1084, of thB difiicalty he had, as a law teacher, in introducing

to the University of Iow!l in 1969, an 'anti-torts' coursc. 40

To concentrate upon disputes and their resolution it is not llccessa.y to

concentrate upon the law and courts. The task of resolving conflicts may

not be served best or most efficiency by dealing with legal rules Ilnd

courts. There are other ways. If negotiatio:"] is 11 better way then

litigation, how does one negotiate? La"'; students should be taugllt how to

negotiate. '''"hat sort of disputes could be dealt with by medintion? Who

can mediate? How do they do it? How does arbitration work? ... It was 11

great deal easier to state the ccnce9tion of the courses than to execute

theiTI in a manner which kept up the level of student interest and provided

scope for reasonable examination. Both these courses were unpopul9.r and

ultimately they were abandoned at iowa. 1 often wonder, if an empirical

survey were taken of practitioners who were subjected to those courses,

what they wowd think of them after ten years of practising It! w . .t 1

In like vein, and prObably with a similar reaction, Chief Justice Burger's recent

address called on lawyers to be healers:

OUt' distant forebears moved slowly from trial by battle and other

bm'baric means of resolving conflicts and disputes, and we must rno,,'e

away from total relianc:e on the adversary contest for resolving an disputcs. For some disputes, trials will be. the only mellns, but fo!" many,

'trials by the advcrsury contest must in time go the wny of the nncicr.t

trial by battle and blood. Our ~ystem is too costly, too painflll. too

destructive, too inefficient ior 8 truly civilised people. To rely on the

advcl'sary process 8S the princip~l rnean~ of resolving conflicting claims is

u mistake th!lt must be corrected.

COl:" ,iJc:-;ct,;, re::;uirin;; :;.";";·C anJ mor~ j;;c;c.". :'.':;;~~;",:=-:.; ,:; "':~.:,;:;. \\·~.0.~

·,·'e ;;(~-.: ',:,,::,t.5 Qt ji..i5ti~e risi:1;;...... hen we .'ice UU:' sran.:;=-:; in ~;:';:J:';.:::: c:>te~::1

falling, .'i,)inething i::> "Nr·ong. If we usk the que.-;tion 1\.,.·h0 is ,-?.::.;tonsL)ie?'

th~ dli.5Wer m~st be : \-:e lire. I 11m. Yoa are.

The entire ieg:a.l ~rofession - lawyers, jUd;5es, law tC.1chers - has bi!come

so mesmirised with the stimulation of the courtroo.i1 contest that we tend

to forget that we ought to be healers - healer's of co::ftcts. Doctors. in

spite of astronomical medicl;ll costs, still retain ::l. h:gh degr.-ee of pUblic

confidence because they arc perceived as healers. Should lawyers not ba

j"lealers? Healers, not warriors? Healers, not procurers? Healers, not hired

guns?42

In Australia appropriate initiatives are now being taken. Community justice

centres are being established to pro\'~de !l1ediation.43 They are still to be

evaluated. But they pick up the theme constantly urged by Geoffrey Palmer,

and with increasing insistence by lea,ders of the legal profession in our own

country. ;'ie should not be iocked by legal history into the wnys of the past. We

should loa!, to our role in society and then set about refcr'ming our institutions,

Im·...s and procedures in order to fulfil tha t role.

Above all ;... e should be more concerned in our professional activities: in our

courts, in chambers, in offices and as citizens, with the greater efficiency of

the law, with costs and benefits of legal rules and procedures. We must all

become economists of justice. It is for that reason that I warmly welcomed this

seminar on the business of law. If we are to bring justice marc economically to

more people, \'Ie must be more concerned about the business of law as a

business. This does not just mean law for business people. It means law for as

m::my of our fellow citizens as have a serious problem and as turned to lawyers

and to the Rule of Law for help and protection. We should test the papers

presented in this seminar by these cl"iterin. Do advertising. amnlg8iTIlltion of

firms, chnngcs of professional style. more ng-:;ressive nttl'Uction of clients,

pouching of other people'S partner~ and so on enhance efficiency in Ii way

cOlTI9atibic with the professional idc.'ll?

COl:" ,iJc:-;ct,;, re:::;uirin;; :;.";";·C 3nj mer..! j;;c;c,;. :'.':;;(!~:.,:=-:.; ,:; '.':~.:,;:;. \\·~,0,~

·,'it! ;;(~-.: ,,:,,::,t.5 Qt ji..i5ti~e risi:1;;. when we .'ice 0U:' srar..:;=-:; in ~;:';:J:';':::: c:>te~::1

falling, .'i,)jnething i::, "N!'ong. If we usk the que~tion !\\'h0 is ,'?.::.;tonsL)ie?'

th~ dii.5Wer m;,Jst be : \-:e lire. I Hm. Yoa are.

The entire ieg:a.l ~rofessio:l - lawyers, jud;5es, law tC.1chers - has bi!come

so mesmirised with the stimulation of the courtroo.i1 contest that we tend

to forget that we ought to be healers - healer's of co::fEcts. Doctors, in

spite of astronomical medicl;ll costs, still retain :i h:gh degr.-ee of public

confidence because they arc perceived as healers. Should lawyers not ba

l·,ealers? Healers, not warriors? Healers, not procurers? Healers, not hired

guns?42

In Australia appropriate initiatives are now being taken. Community justice

centres are being established to pro\'~de !llediation.43 They are still to be

evaluated. But they pick up the theme constantly urged by Geoffrey Palmer,

and with increasing insistence by lea,ders of the legal profession in our own

country. ;'ie should not be iocked by legal history into the W3YS of the past. We

should loa!.;: to our role in society and then set about refcr'ming our institutions,

Im· ... s and procedures in order to fulfil tha t role.

Above all ; ... e should be more concerned in our professional activities: in our

courts, in chambers, in offices and as citizens, with the greater efficiency of

the law, with costs and benefits of legal rules and procedures. We must all

become economists of justice. It is for that reason that I warmly welcomed tllis

seminar on the business of law. If we are to bring justice marc economically to

more people, we must be more concerned about the business of law as a

business. This does not just mean law for business people. It means law for as

m::my of our fellow citizens as have a serious problem and as turned to lawyers

and to the Rule of Law for help and protection. We should test the papers

presented in this seminal' by these cl"iterin. Do advertising. amnlG'8iTIlltion of

firms, chnnges of professional style. more ng-:;ressive attraction of clients,

pouching of other people's partner~ and so on enhance efficiency in Ii way

cOlTI 9atiblc with the professional idC.'lI?

FOOTNOTES

1. JL:stice Estey, 'Who Needs Courts?' (I981) 1 The Wine]soi Yearbook of Access to

JU5tiee,"263,264.

2. Chief Justice Dicv.son, Interview with W Monopoli, in CBA Nation:'..l, May 1984,

47.

3. D Sak, 37th Annual"Cardozo Lecture, November 1983, New Yotk Bar.

4. Chief Justice Burger, 'The State of Justice', in Amedcan Bar Association

Journal (April 198-1), 63. Cf similar comments in American Bar Asscciat:on

Journal, October 1983, 1356.

5. Justice T Eichclbaum, 'Access to the Courts', Paper for the New Zealand Law

Conference in Papers, 3.

6. ibid.

7. GJ Evans, cited Svdnev :\1ornim; Herald, 28 May 1984, 11.

8. The figures were quoted by Senator Evans and are cited Australian Financial

Review, 20 May t 984, 4.

9. For a·few predictions, See the paper by .Justice A Roger:>, 'Dispute Resolution in

Australin in the Year 2000', u paper delivered at~the AustraH!m Gar Association

Conference, Surfers' Paradise, Queensland. July 1984, mimeo.

10. ',1 Cllp~elletti lInd B Gnrth. 'Access to ,Justice ns a Focus of Research',

ForewOl'd to (981) 1 Windsor ¥c::trbook of ;\Cl'es~ to Ju~ticc, xxii.

FOOTNOTES

1. JL!stice Estey, 'Who Needs Courts?' (I981) 1 The WineJsor Yearbock of Access to

JU5tiee,"263,264.

2. Chief Justice Dicv.son, Interview with W Monopoli, in CBA Nation;'..l, May 1984,

47.

3. D Sok, 37th Annual"Cardozo Lecture, November 1983, New YOr'k Bar.

4. Chiei'" Justice Burger, tThc State of Justice', in American Bar Association

Journal (April 198-1), 63. Cf similar comments in American Bar Asscciat:on

Journal, October 1983, 1356.

5. Justice T Eichclbaum, 'Access to the Courts', Paper for the New Zealand Law

Conference in Papers, 3.

6. ibid.

7. GJ Evans, cited Svdnev :Ylornim; Herald, 28 May 1984, 11.

8. The figures were quoted by Senator Evans and are cited Australian Financial

Review, 20 May t 984, 4.

9. For a'few predictions, See the paper by .Justice A Roger:>, 'Dispute Resolution in

Australin in the ¥cflr 2000', u paper delivered at~the Austra1i!m Gar Association

Conference, Surfers' Paradise, Queensland. July 1984, mimeo.

10. ',1 Cllp~elletti IJnd B Gnrth, 'Access to ,Ju5tice ns a Focus of Research',

ForewO!'d to (981) 1 Windsor ¥c:lrbook of ;\Cl'es~ to Ju~ticc, xxii.

21. ibid.

20. Burger, 64.

L"::.,.•,~:· .. ;ty _cf .~.~ ~_~:_w i~('v. :::,,"1 ,19,,-'j,; ');~ ~';l;i;Ll::1S. 'tlc:ne:l: "_~(l.~l i:--:

~~dl,-:r:ll ;~,: ..:;~ .. :..;_, .:;.J :H~'::Ji(;n-ll~;,j-;;.~ : L.~ i..,~0i:Or:1;...l H:Vj Lc;d ~Y,;c:\·.:;·::·.

Australian La Vi' Refarm Com rn ission, "l"n5",0",1"v"e"n"c:.ly,-,,--T,,h,,,e=-:.:R,,e,,~,,u,,l,,ur,--,-p,,a,,,v.::m,-e::;n.::t=-"o:.f

Debts (ALRe 6), 1977.

"j"he leading case is J1uthews v Eldridg-e, ·124 US 319 (1976).

l.,t.

2'1 MD .Kirby, 'The Judges' , Australinn Br~adcasti:lg Corporation Boye!" Lectures,

1983; 24. Cf England, Home Office and Lord Chancellorfs Office, Judicial

Stuc:c::; and Infor:nation. R('port of Workin,:; Party (Lord Justice Bridge), .1978.

32.

24. Family Court of Australia Act 1975 (-\u<;t).

i3. Australian Law Reform Commission, Annual Report, 1981 (ALRC 19) 1-5;

Australian Law Reform Commission, Annual Report 1982 (ALRC 21) 1--~;

Australian Law Reform Commission, Insurance Contracts (ALRC 20), 20£f.

23. Federal Court of AU5tl'ulia Act 1976 (Aust):.

18. See eg Insurance Contracts Act 1934.

19. ibid, s 75.

15. See announceiTIe:1t by Senator GJ Evans, Federal Attorney-General, 3 June

1984, reported [l9B4] Reform 90.

11. Administrative Decisions {Judicial Review} Act 1977 (Aust) s 13.

16. .\1D Kirby. n.-efor:n the Law, Oxfo:-d, 1983,70.

I "..I " ..

L::.,."'l!:· .. ;ty _cf .~.~ ~_~!_W i~('v" :::',"1 ,[9"-'j·; .);~ ~';l;i;u::1s. '\1c:ne:l: ;_'(l.~l i:--:

:~dl,:r:ll ;! ... : . .;~::..;_, ,:;.J :)c.::,i(;n- !l~;,i";;.-:;- : L.~ i...~0i:O;-:1;..! H:Vj Lc;d ~y,;c:\· . .:;·::·"

-j-hl.! leading case is :\luthews v Eldridg-e, ·124 US 319 (1976).

i3. Austrllliun Law Reform Commission, Annual Report, 1981 (ALRC 19) i-5;

Australian Law Reform Commission, Annual Report 1982 (ALRC 21) l--~;

Australian Law Reform Commission, Insurance Contracts (ALRC 20), 20f['

l~. A ustralian La Vi' Ref arm Com rn issi on, !1!!ns",o",l"v"e"n"c"Y,-,,-T,,h,,,e=-.,,R,,e,,g,,u,,l,,ur,--,-P,,a,,,V.::ffi,-e::;n,-t,--"o:.f

Debts (ALRe 6), 1977.

15. See announceiTIe:1t by Senator GJ Evans, Federal Attorney-General, 3 June

1984, reported [l9B4] Reform 90.

16. .\1D Kirby. n.-efor:n the Law, Oxfo:od, 1983,70.

11. Administrative Decisions {Judicial Review} Act 1977 (Aust) s 13.

18. See eg Insurance Contracts Act 1934.

19. ibid, s 75.

20. Burger, 64.

21. ibid.

2<) MD .Kirby, !The Judges' , Australinn Br~adcasting Corporation Boye!" Lectures,

1983; 24. Cf England, Home Office and Lord Chancellor!s Office. Judicial

Stuc:c::; and Infor:nation. R('port of Working- Party (Lord Justice Bridge), .1978.

n.

23. Federal Court of AU5tl"ulia Act 1976 (Aust):-

24. Family Court of Australia Act 1975 (-\u<;t).

26. J!' L SeHly, .'The \J.;sincss C':;:li,;lU,:ity : h It 8~in;; Se!'vc.j'~' ill .!::H :;: ..:,; ..... ~:'~~LIL;.~

Law Conicrer:c0, PD.~el"';, :21. 2·1.

27. Zlchelbuum,8.

28. Chief Justice Daviso,n, Closing Address to the Triennial Law Conference,

Rotoru-a, New Zealund, mimeo, 4.

29. Almost every law reform agency in Australia has delivered a report on

arbitration law and practice. For summaries sec Australil~n Law Reform

Commis$ior., Tile Law Reform Digest, AGPS, Canberru, 1983, 7L The

Australian Standing Committee of Attorneys-General is expected shortly to

~ropose D. model Uniform Arbitration Bill.

30. ;'.1ascllinenf3.brik AUjsberg-~-:urnberg Aktiengesellschaft \! Altikar Pty Limited!

unreported, Rogers J, 4 August 1983. For discussion see ~"1D Kirby, fLaw,

Business and CER', Paper for the New Zealand Law Conference, mimeo.

31. D .\lcLachlan, Comments at the NZ Law G:mference, reported Triennial Ttmes

(NZ Law Society), 26 April 1984,4.

32. For a summary of eerlier state systems i.n Austr<l1ia see J Bnste~, R Gr2.~ct!.r

and D Neal, lLegal C~ntres in Australia', (983) 6 Uni of i'iSWLJ 163, 164. cr'Legal Centres in Australia 1972-82', Special issue of the Lega.l Service Bulletin

(On Tap, Not on Top), editor D Neal, 1984.

33. See Basten, et alj l\1 Chapman, IAboriginal Legal Service :D A Diack

Perspective', in Neil (ed) 35.

34. See tlU1 discussion of this issue in Au:;tl'ali.9.n Law Reform Commission,

Discussion Paper II, 'Access to the Courts - n, Cla~s Actions', ::!6, 28. -l0.

35. New Soutll Wales Low Reform Commi~~ion. Fit-st, ScconJ nnd Thil"d Reports on

the Legul PrQr~ssi(ln, Sydney, 1982.

1

26. J!' L SeHly, .'The \J...;sincss C':;:li,;lUl:ity : h It 8~in; Se!'vc.j'~' ill .,::H :;: . .:., ..... ~:':!~HL .. ~

Law Conicrer:c0, PD.~el"';, ::!l, 2·1.

27. Zlchelbuum,8.

28. Chief Justice Daviso.n, Closing Address to the Triennial Law Cenference,

Rotorua, New Zealund, mimeo, 4.

29. Almost every law reform agency in Australia has de!ivered a report on

arbitration law and practice. For summaries sec Australil~n Law Reform

Commis:o;ior., Tile Law Reform Digest, AGPS, Canberru, 1983, 7L The

Australian Standing Committee of Attorneys-General is expected shortly to

~ropose D.. model Uniform Arbitration Bill.

30. ~1ascllinenf3.brik AUjsberg-~':urnberg Aktiengesellschaft v Altikar Pty Limited!

unreported, Rogers J, 4 August 1983. For discussion see ~,·rD Kirby. 'Law,

Business and CER', Paper fer the New Zealand Law Conference, mimeo.

31. D .\lcLachlan, Comments at the NZ Law G:mference. reported Triennjal Ttmes

(NZ Law Society), 26 April 1984,4.

32. For a summary of eerlier state systems i.n Austr<l1ia see J Bnste~, R Gr2.~ct!.r

and D Neal, 'Legal C~ntres in Australia', (1983) 6 Uni of i'iSWLJ 163, 164. cr 'Legal Centres in Australia 1972-82', Special issue of the Lega.l Service Bulletin

(On Tap, Not on Top), editor D Neal, 1984.

33. See Basten, et al; 1\1 Chapman, 'Aboriginal Legal Service :D A Diack

Perspective', in Neil (ed) 35.

34. See tlU1 discussion of this issue in Au:;tl'ali.9.n Law Reform Commission,

Discussion Paper II, 'Access to the Courts - n, Cla~s Actions'. ::!6, 28. -l0.

35. New Soutll Wales Lnw Reform Commi!'~ion. Fit-st, ScconJ nnd Thil"d Reports 011

the Legul PrQr~ssi(ln, Sydney. 1982.

1

803. i

.,' , ..

..J< ......

43. Community Justice Centres (Pilot Project) Act 1982 (NSi"l") ???j Ccmmuni~y

.\leci:nion Scrvice (Pilot Project) Act 1983 (NZ). .;\ like schc:nc has now bce:l

[Jropo3ed for Victoria. See Palmer, '~ivil Courts', 39.

42. Burger, 66.

t\U:"it:'.:L~. ~..:,,: :\. .,,,;;;1:'.';'.:. 'Tia: .\oJ,ldil;:>l;'.ltl\~ .·\,;".·••L,i".;Ul •.-:i: I Pr..:.:i.;.:..:· ,,",

Ll~~' : :5Ut;.:..: ~~; ·;".:to"'H, !.:~.~.?':.J.ll:'[1t~'-tJ_.:J~~~·:.nCtl..; "y UO';. \"j; j'j :·i(J 7, :-:;9.

41. Palmer, Civil Gourts, 6.

33. .\1D Kirby, The JUG2:CS, 75.

40. G Palmer 'The Gro .....ing i~rclc\'al1co of the Civil Courts', Ann~[ll Lecture,

University <)f i','indsof, Ctinl1dlJ., mimeo, 12 :'1areh 1984, 4 (hereafter 'P~l.lmer.

Civil Courtsl)~

:.>9. Sir Anthony :\1 <:'30n, 'Juri::idietionll! IlfiU ProccJuil:l.l Constraints on the Evolution

of Austr:llian Law' (984) 10 SI,'c!nev Law Hev, 253, 258.

.. ' ...

...J' ••• '-

t\U:"it:'.:L[!. ::)..:..: :\. ., .• ;;:1:',':',:, 'Tia: ,\oJ.ldil.:>l;',ltL\~ ".,; •• : •• !:, (',.;Ul •. -:i! I ;')I'..:.:i. • ..:..:' ,,",

Ll~~' : :5Ut;,:..: ~~; ',", . .:to,',H, !:~.~.?':.J.II:';[1t~~tJ_.:J~~~-:.n:tl. .; "y UO';, \".j; j'j :';:J 7. -;-:;9.

803,

33. .\1D Kirby, The JUG2:CS, 75.

:.>9. Sir Anthony :'.1 f!30n, 'Jurisdietionlll Ilnu ProccJuil:l.l Constraints on the Evolution

of AU5tr:llian Law' 098-1) 10 SI,'clnev Law Hev, 253, 258.

40. G Palmer 'The Grov:ing i~rclc\'aL1co of the Civil Courts', Ann~[ll Lecture,

University <If i','indsor, Ct!nlldll, mimeo, 12 :'1areh 1984, 4 (hereafter IP~tlmer.

Civil Courts').

·11. Palmer, Civil Gourts, 6.

42. Burger. 66.

43. Community Justice Centres (Pilot Project) Act 1982 (NSi-;) ???j Ccmmuni~y

.\leci:nion Sc:-vice (Pilot Project) Act 1983 (NZ) . .;\ like schc:nc has now bce:l

[Jropo3ed for Victoria. See Palmer, '~ivil Courts', 39.

i