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16 June, 2008  
Victoria's civil justice review - same old stuff

Trust Tulkinghorn not to be enthusiastic about Dr Cashman’s review of civil justice in Victoria. The report draws extensively on the UK Woolf “reforms” ... and what good have they produced?

imageIn 2005 the NSW Chief Justice James Spigelman said that the word “reform” has …

“acquired a positive connotation of ‘improvement’, which puts anyone opposed to the relevant change on the defensive… I am reminded of the blistering attack on reformers by Senator Roscoe Conkling (pic), a Republican machine party boss in New York City who said in 1880: ‘Some of these worthies masquerade as reformers… Their real object is office and plunder. When Dr Johnson defined patriotism as the last refuge of a scoundrel, he was unconscious of the then undeveloped possibilities of the word ‘reform’.”

On May 28, 2008 the Victorian Law Reform Commission launched its report resulting from its Civil Justice Review.

Neil Rees, the chairman of the commission, said in the preface:

“My final debt of gratitude is due to Dr Peter Cashman whose vision and energy lie at the centre of this report.”

imageDr Cashman (pic) was a private sector solicitor who specialised in, inter alia, class action litigation. He’s now at the Sydney bar.

On July 6, 2005, in the South Australian House of Assembly, Premier Mike Rann said (in a criminal law context, but equally applicable to civil) that:

“A law reform commission is code for taking the reform agenda away from the people and putting it in the hands of lawyers.”

The VLRC did not begin its review by systematically surveying the “people” and asking what they wanted.

There are references to “stakeholders” in the report but it largely focusses on court and lawyer stakeholders.

The word “consumers” is used even more, but not in a context of “tell us what you want and we’ll try to deliver it”. All that consumers can do now is enter the “expert’s box”.

imageIn his book Voltaire’s Bastards, the Dictatorship of Reason in the West, the philosopher John Ralston Saul (pic) discussed the “expert’s box” problem.

Experts, having created areas of expertise (legitimate or not – for example no one has ever defined what lawyering is) must defend their territory against “outsiders”.

Saul outlines the various tricks that experts use to prevent questioning, ending up with:

“And if the questioner must be answered … the expert may release a flood of incomprehensible data, thus drowning out debate while pretending to be co-operative. And even if someone does manage to penetrate the confusion of material, he will be obliged to argue against the expert in a context of such complexity that the public, to whom he is supposed to be communicating understanding, will quickly lose interest. In other words, by drawing the persistent outsider into his box, the expert will have rendered him powerless.”

The VLRC report draws extensively on the UK Woolf reforms, which followed the Woolf civil justice report of 1996.

imageDr Cashman last year excellently explained Lord Woolf’s (pic) reforms here.

The Times (UK) reported on May 22, 2007:

“As most practitioners agree, the Woolf reforms have done little to improve things and in some cases made the costs burden worse.”

On May 2, 2000 The Times set out some interesting figures in an article, “Verdict on Woolf shake-up: it’s a qualified success”:

“Eversheds, the corporate law firm, has conducted an ‘access to justice’ survey for four years, so its results are telling… Some 52 per cent of respondents believed that litigation was quicker, but only 22 per cent thought costs were lower… Only 24 per cent believed that litigants were now getting better justice; 44 per cent said they were not. Views were also split on costs. Nearly half did not believe costs to have been affected. Arguably more worrying, 19 per cent said costs had risen, particularly in the regions.

“Wragge & Co obtained similar findings.”

The VLRC report refers to the Woolf reform process 145 times.

imageIn July last year, at an earlier stage of the review process, but after the general thrust of Dr Cashman’s tentative “class action” proposals had become known, Janet Albrechtsen (pic), a newspaper commentator, wrote:

“Had Dr Cashman simply proposed that the Victorian government mainline money into the veins of Maurice Blackburn Cashman, the law firm he co-founded, or fellow plaintiff firms such as Slater & Gordon, the effect would have been pretty much the same as the VLRC proposals.”

When the Cashman Report was released on May 28 the Victorian Attorney General Rob Hulls said:

“I believe the report will contribute to an ongoing process of meaningful and lasting reform, and I congratulate the Victorian Law Reform Commission on its excellent work.”

imageHowever, Hulls (pic) is a politician as well as a lawyer (assuming there is a difference).

The Age reported:

“Asking whether the court system was aimed at resolving disputes or increasing costs for those involved, Mr Hulls also suggested that the state’s adversarial justice system might be past its use-by date.”

On June 11 The Age added:

“Mr Hulls said that for civil matters, the adversarial court system needed overhauling in favour of mediation.”

Needless to say, there are lashings of suggestions in the Cashman report about improving and expanding the use of alternate dispute resolution.

The problem there is that lawyers try to turn ADR solutions, such as mediation, back into adversarial exercises.

According to a study in the USA:

“The majority of court oriented, non-family civil mediations employ the same narrow problem definition that typically prevails in lawyers’ negotiations of ordinary cases.

“The lawyers, not the clients, dominate the discussions … settlement focussed caucuses dominate most mediations, rather than joint sessions designed to promote parties’ mutual understanding.”

Who knows, eventually, Hullsy might settle back on the real issue.

Instead of adversarial justice we need inquisitorial truth-seeking justice, where lawyers aren’t running the show.

In other words, tribunal style justice across the board instead of being it being limited to cases and situations that generally can’t support high lawyers’ fees.

imageNon-lawyers are going to have to push for this reform, because, as Albert Einstein said, and Marcus Einfeld (pic) endorsed:

“We cannot expect to solve today’s problems with the same thinking that created them.”

The Law and Justice Foundation of NSW, and two Australian universities, have been working for years on a project comparing German and Australian civil justice.

Several deadlines for the report have come and gone, but it is still “In Progress” and likely to appear later this year.

That report will be worth reading.