Reissues of Charles Dickens’ Bleak House carry an editor's note at the end of the text. The note is to the effect that by the time Dickens wrote his satire of the Victorian legal system between 1852 and 1853, Chancery, a division of England’s High Court, had been reformed. The reforms meant that all the failings of the system Dickens had exposed had been done away with.
Dickens' theme was that the Chancery system was a labyrinth that would consume litigants. Chancery and its processes were so torturous that any attempt to extract a judicial decision from it was futile and would exhaust an otherwise wealthy estate in legal costs. The result was nothing left for the heirs and in particular Richard Carstone, Dickens’ symbolic victim who enters the labyrinth and dies as a result.
Modern Equity in Australia
Australia’s legal system and particularly modern Equity, was a direct import of the Chancery Division of the English High Court. It operates under the same principles and unlike Dickens’ Chancery will determine disputes within a reasonable time. The issue in modern Equity is the costs of litigation can exhaust what the parties are litigating about. Litigation can also have a negative impact upon personal relationships resulting in even more litigation of the Family Law variety.
Recently the present Chief Justice of New South Wales expressed concern about excessive legal costs in his court and in particular the consumption of disputed estates by legal costs in Probate and Family Provision cases. This is litigation of the Bleak House variety – cases where the lawyers appear to be the only winners and estates are being exhausted in legal costs.
The Chief Justice’s concern has been expressed in a number of practice notes issued the Supreme Court and in changes to legislation requiring all parties approaching the court to be bona fide in conducting their litigation to ensure its just, cheap and quick resolution.
New Legislation Introduced by the Commonwealth Attorney General
The Chief Justice’s concerns about the costs of litigation appear to be shared by the Australian Attorney General. In a second reading speech introducing the Access to Justice (Civil Litigation Reforms) Amendment Bill to Parliament the Attorney General said, We all hope that litigation of the type Charles Dickens documents in Bleak House would be the stuff of fiction. If it were the Attorney General would have no need for new legislation.
The Attorney General also said that in large corporate litigation the Crown is spending millions of dollars dealing with what has become known as mega litigation but the corporate parties litigating aren't paying enough in hearing fees.
This raft of proposed legislation is intended to reform the legal system at the Federal level by specifying a new overarching purpose...to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
There are already provisions to he same effect in the Federal system so the utility of the Commonwealth Attorney General’s new legislation is questionable. What the new legislation does not address and cannot control is the compulsion of human beings to litigate, which has never changed.
New and Higher Fees May be the Answer
One answer to the courts’ resources being monopolised and exhausted by large legal consumers is perhaps to impose higher daily hearing fees upon litigants of the mega variety.
The principle of user pays and the more you use the more you pay may help in part to answer the Attorney General’s concerns but will not remove mega litigation and litigation of the Bleak house variety from the Courts. It will only generate more fees because the courts are open to all and will never lack parties willing to enter the modern labyrinth.
Sources:
Hansard, Second Reading Speech Access to Justice (Civil Litigation Reforms) Amendment Bill 2009
Supreme Court of New South Wales Practice Notes
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Toni Bartush - Toni Bartush was a Barrister at the New South Wales Bar and a Solicitor in private practice, specialising in civil litigation. She was a ...
