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Barry Lane
20 July, 2005  
Access to justice and loaded litigants

Barry Lane loves discipline and he wants it applied to the use of the courts. Well-heeled litigants should pay market rates for access to the judicial edifice. That might shake out some of the indulgent cases that just run and run and run.


imageCitizens of Yarraside are familiar with the well-worn sound of Attorney General Rob Hulls banging on about access to justice.

All thoroughly laudable, of course, but it strikes me that the system could do with a firm dose of market discipline in the form of “user pays”.

Take education and health, for instance. These days no one would sensibly suggest that users who can afford to pay for those services should not do so. It’s arguable that perpetual ignorance, with its adverse consequences for a happy and fruitful life, or death after being left on a hospital trolley for too long, are just as important issues for the average battler as access to the courts.

Why is the legal system still wrapped in cotton wool so far as the general taxpayer is concerned? According to well-placed fiscal authorities it costs the State of Victoria about $10,000 a day to put a judge in a court for the convenience of the litigants. So the true cost of running the justice system’s infrastructure would be around $3 million per judge, per year. Multiplied by a hundred or so judges in Victoria plus another 100 magistrates and you can see the dimension of the cost.

Court fees paid by the parties bear no relationship to the actual cost of the services made available by the State.

Also, bear in mind that government and business litigants dominate the civil lists of our courts.

If rigorous public interest criteria were applied it would be difficult to see a justification for Gunns to be able to chew up the public resources of our Supreme Court in pursuit of a few Tasmanian tree huggers.

Is the Tasmanian logger and chipper after fair compensation or is this more a case of using the courts to bludgeon the defendants into silence and inactivity?

Whatever the motive, why should Gunns be able to extract such largesse from Victorian taxpayers? The company is not even a Victorian operation for God’s sake and most, if not all, of the 20 defendants reside in Tasmania.

imageThis week Justice Bernard Bongiorno (seen here) struck out the 360 page amended statement of claim because it was “embarrassing” to the defendants within the meaning of the court’s rules. His Honour urged Gunns to give “serious reconsideration” to the way its case was being put.

After the pleadings get sorted out, there will be the inevitable battles over discovery, interrogatories, experts’ reports, etc, etc. The case will take years before it gets to trial.

One can see the benefit of a reserved seat on the gravy trial for hard-pressed local attorneys and barristers, but at the risk of sounding awfully parochial about this, where is the benefit for the Victorian taxpayer?

Other instances show that the problem is far from just a local one.

The libel case brought by McDonalds, a fat American corporation and one of the wealthiest in the world, against Dave Morris, a postman and union activist, and Helen Steel, an unemployed gardener, took up 313 days in the English High Court.

The self-represented defendants had the gall to claim in pamphlets they distributed underneath the golden arches at a London outlet that Maccas’ burgers were not up to snuff from a nutritional point of view. There were also claims that rainforests and animals being tortured and kiddies underpaid.

There was an appeal in the UK (another 23 court days) followed by a mercifully briefer appeal in the European Court.

imageThe case is said to have cost McDonalds £10 million, a fair bit of it winding its way into the trousers of lead barrister for the hamburger, Richard Rampton QC (pictured). I have seen no estimate of what it cost the British taxpayer but it would have to exceed several Big Macs and “freedom” fries.

There must be something about hamburgers because in NSW there was the marathon action in the Supreme Court between Burger King, another large American corporation, and the local Hungry Jacks over a franchise fight. The proceedings started on November 26, 1996, came to trial in fits and starts during 1999 and ended with judgment in favour of Hungry for about $70 million on November 5, 1999.

Burger King appealed but Hungry was successful there as well. The Court of Appeal gave judgment on June 21, 2001. Burger King then obtained leave to appeal to the High Court after which, it appears, the litigation ended.

The case is said to have cast light upon the duty of “good faith” in the franchise agreement but in truth the private benefit of that outcome far outweighed any benefit the public got from funding the court system to deliver a result.

imageAnd what of the epic battles between the ladies Lang Hancock left behind, Gina and Rose (right)?

That trench warfare went for over a decade in Perth and when a truce was announced in September 2003, like their predecessors on the Western front in World War 1, neither party had actually gained a strategic advantage over the other, but millions of dollars in legal costs had been run up.

WA Attorney General Jim McGinty was heard to say: “I think the public will be glad the circus is over.”

It is not over. According to The Age, law shop Slater & Gordon is off to the Victorian Supreme Court seeking $14 million from Rose in legal fees. So Victorian taxpayers are going to have to chip in as well.

Justice these days is just as commodified as health, education, water, electricity and even roads. Yet the justice infrastructure is still provided at public expense to private users. The vast preponderance of civil actions does not involve any improvement to the well being of society as a whole – only a result for the squabbling parties.

Yet the community has to pay endlessly for what essentially is a private outcome. If the users paid their way then conceivably there could be more investment in the capital – such as additional judges and legal aid. Thereby access could be improved.

Also, it might be another magnificent opportunity for Macquarie Infrastructure to put its paws into the machinery of civil justice.

Now that Gunns, with its defective case (so far), is wanting to chew up an inordinate amount of the public’s resources maybe it should be made to pay for the privilege – not only the defendants’ costs for the cock-up, but the State as well.