Handbook for Judicial Officers — Non-adversarial justice

So, in Australia at least, the political and public policy environment in which non-adversarial justice practices have been developed in the criminal justice system has been antithetical to those practices. The tension between non-adversarial criminal justice and public sentiment, as perceived and reflected by politicians in the policies which they adopt, can be seen at both a philosophical and practical level. At a philosophical level, non-adversarial justice aims to protect the community by addressing, and hopefully resolving the causes of offending behaviour, or at least reducing the risk that identified underlying conditions will be criminogenic, in the sense that they will cause or contribute to offending behaviour. By contrast, “popular punitivism” focuses upon the consequences of crime, rather than its causes, and contends that the community is best protected by increasing levels of punishment which will deter future crimes by the offender and others.^[4] At a practical level, mandatory minimum sentences discourage offenders from acknowledging or admitting their guilt, and pre-determine the outcome of the sentencing process in the event of conviction — both of which are antithetical to any and all forms of non-adversarial justice. The question of whether legislative provisions which, in effect, remove any element of discretion from the sentencing process and pre-determine its outcome are compatible with more general notions of justice, whether adversarial or not, is beyond the scope of this paper.

Given the acidic nature of the soil in which the seeds of non-adversarial justice have been planted, it is remarkable that those seeds have germinated and developed into thriving plants bearing fruit for the benefit of the community. Perhaps the most prolific fruit-bearing trees in the non-adversarial orchard are drug courts and mental health courts, which are to be found, in varying forms, in many, if not most, jurisdictions. How have these courts flourished and borne fruit in the hostile environment which I have described? I believe the answer lies in the fact that, despite the methodological problems of analysing the outcomes of such courts, analysis has repeatedly shown that such courts produce better outcomes for a significantly reduced overall cost. Perhaps just as significantly, the philosophical and practical underpinnings for such courts are almost self-evident to a wide section of the community, and their elected representatives. The proposition that a person who is addicted to illicit drugs or who suffers a mental illness or disability will continue to offend, unless and until their drug addiction or mental health issue is resolved, is not difficult to accept.

The survival and development of non-adversarial practices in the environment which I have described is one of the sources of my cautious optimism. Nevertheless, it would be naive to underestimate the potential impact of popular punitivism in the future development of non-adversarial justice practices.

Following the First International Conference on Non-adversarial Justice in Melbourne in 2010, a report of the conference was published in Justinian — an Australian journal focused on legal issues and the legal profession. The author, using the nom de plume Portia, described the conference as launching a “jihad on adversarialism” and, in a generally facetious description of the conference, drew an analogy to:^[7]

The author described the character of the papers as referring to “naughty lawyers who failed to settle and undisciplined judges who audaciously allowed them to proceed to a trial”.^[8] The article concluded, consistently with its headline, by proposing that:^[9]

In 2017, an article was published in The Australian, a national newspaper, under the heading “Society expects justice from courts, not therapy”.^[10] The article was published adjacent to a cartoon depicting a tattooed patient on a couch attended by a robed “counsellor” sitting in a chair with a gavel resting on the arm of the chair.

The literature in this area^[31] recognises two recurrent deficiencies which have bedevilled initiatives and programs in this field. First, programs, including specialty courts, have often been launched and promoted by reference to objectives which are more aspirational than realistic. Family violence and Aboriginal offending are both issues of profound importance to the criminal justice system, and to the community of WA. No reasonable person would not aspire to significantly reduce the magnitude of offending in either category. However, both categories of offending behaviour present problems which are extremely complex and multi-faceted, and in the case of Aboriginal offending, intergenerational. However worthy our ambitions, it is unrealistic to suppose that significant inroads will be made with respect to either category of offending behaviour in the short term, and in particular, within any one electoral cycle. Nevertheless, the objective of significantly reducing offending behaviour has been at the forefront of the launch of specialty courts in these areas.

The second recurrent problem in this area arises from the frequent analysis of courts of this kind by reference to their longitudinal impact upon re-offending rates.^[32] The difficulty with that form of analysis could sustain a paper all on its own. For present purposes it will be sufficient if I mention just two of the problems.

Another generic difficulty often experienced by courts of this character concerns the provision of resources providing proper support to the non-adversarial approach, including accommodation, counselling and treatment. If specialty courts are not supported by the provision of adequate resources of that kind, and are constrained to the imposition of traditional penalties, it is unreasonable to expect any significant improvement in outcomes.

Another generic problem for courts of this kind is one I have already mentioned — namely, mandatory minimum sentencing. As I have already indicated, if an offender is subject to a mandatory minimum sentence, there is little role or scope for non-adversarial justice.

The latter point emerges strongly from a very interesting recent survey of Aboriginal mothers incarcerated in WA.^[39] The article noted that between 2004–2014 women were the fastest growing cohort in the Australian prison system — and that the imprisonment rate for Aboriginal women increased at a faster rate than for non-Aboriginal women. The article also noted that most violence involving Aboriginal people in Australia is committed by Aboriginal men, with Aboriginal women overwhelmingly the victims — Aboriginal women are 34 times more likely than non-Aboriginal women to have been hospitalised as a result of injuries caused by assault and nine times more likely to die from their injuries.

In that context the authors surveyed a number of Aboriginal women imprisoned in WA. The survey revealed that most of the women in the study who reported using violence had themselves been victims of violence. In many cases, offences were committed in circumstances in which women were retaliating to sustained and prolonged victimisation — often not reported because of the normalisation of violence within some families or communities. In that context, it seems to me to be very likely that the application of non-adversarial justice principles to victims, effectively and adequately addressing the consequences of the offence to which they were subject, is not only just and fair, but would also better protect the community by reducing the risk of the victim becoming an offender.

The common law system of civil justice which the colonists brought to Australia from England had historically incorporated a system which is about as adversarial as any system could ever be — namely, the system of trial by battle.^[40] Under that system, disputes with respect to the ownership of land were resolved by a court ordering the disputing parties to require their representatives to bludgeon each other before an arena of spectating citizens — the victor taking the spoils for his principal. In his paper on the subject,^[41] Professor Leeson points out that very few would defend such a process today, and that Baron Montesquieu described the process as “monstrous” as long ago as 1748. However, perhaps in an attempt to show that there is a little good in everything, Leeson engages economic analysis to conclude that trial by battle was an efficient and effective way of resolving disputes with respect to the ownership of land — essentially because it provided a mechanism by which the party who attached greatest value to the land in dispute could be identified, because that was the party who would spend the most money to obtain the most successful gladiator.^[42] Parallels with our current system of civil justice are obvious, as is the prospect that cases determined on an adversarial basis are more likely to be won by the party who spends the greatest amount of money on their legal representatives.^[43]

These observations underscore the vital importance of applying principles of non-adversarial justice in the civil justice system. There is a tendency to see those principles given expression predominantly, if not exclusively, through the application of ADR^[44] such as mediation. I do not mean to diminish the significance of those processes — indeed, I am a fervent advocate of those processes and regularly conduct mediations myself.^[45] However, I believe that there is much that could be done, over and above ADR, to make the fundamentally adversarial civil justice system less adversarial. I will try to develop my point by reference to some practices we have adopted in the Supreme Court of WA.

It should first be noted that these practices have been introduced in the context of a system of docket case management which is applied to all contentious cases.^[46] That context, in itself, assists to generate a non-adversarial culture in which the parties and the case manager collectively address, hopefully in a less adversarial and more collegiate way, the common objective of identifying the matters truly in issue, preparing those issues for mediation and, if necessary, trial as quickly, inexpensively and efficiently as possible.

The less adversarial, more collegiate, approach to which I have referred is encouraged by the hearing room spaces we have designed and provided in our new civil court premises. Because of the significance of the case management work undertaken by the court, hearing rooms suitable for case management are the most numerous category of hearing room provided in our new building. They are furnished with modular furniture which can be flexibly arranged and rearranged. Although the furniture can be configured in such a way as to emulate a more traditional courtroom, with a separate table for the judicial officer and bar tables for counsel, there is no elevated platform upon which a bench can be placed, and in fact the majority of these spaces are configured as conference rooms, rather than courtrooms. Perhaps unsurprisingly, my colleagues and I have discovered that the configuration of the space in which a hearing is conducted has a profound impact upon the character and culture of the hearing. Parties sitting around a round conference table are much more likely to confer, whereas parties sitting in a courtroom are much more likely to argue. Spaces do matter.

During my time in practice, civil work was characterised by an almost never-ending sequence of interlocutory disputes with respect to almost every step in the pre-trial process — pleadings, particulars of pleadings, interrogatories, discovery and so on. Those disputes consumed quantities of time and money which were entirely disproportionate to their contribution to the just and efficient resolution of the dispute. We have actively discouraged those disputes in a number of ways. First, we have copied our colleagues in the Federal Court and introduced a provision into our rules which enables a case manager to direct that an interlocutory dispute will not be heard or determined. That power will be exercised when, consistently with the overarching principle of proportionality, the time and expense involved in the determination of the interlocutory dispute is disproportionate to its contribution to the just and efficient disposition of the case.

Second, for some time now there has been a provision in our rules which requires the legal representatives for parties to “confer” prior to initiating any interlocutory dispute. Shortly after my appointment I construed that rule as requiring discussion of the issues, preferably face to face but at least by telephone, between representatives of the parties with authority to settle the dispute. The rule thus construed has been applied in such a way that any lawyer commencing an interlocutory dispute without conferring, in the sense I have described, is at great risk of being ordered to pay the costs of that dispute personally. This approach to the construction and application of the rule has reduced interlocutory disputes by at least one-third.

Third, instead of setting aside significant amounts of time to hear interlocutory disputes, they are generally programmed in such a way that only a relatively short amount of time is allowed, and there is an expectation that, in the vast majority of cases, an ex tempore decision will be given immediately following the conclusion of argument.

In order to further facilitate the achievement of the fundamental objectives of docket case management to which I have already referred, some years ago we introduced a procedure which we describe as a “strategic conference”, which occurs relatively early in the life of a case — sometimes before pleading — for example, if there is a question as to whether the time and cost involved in the pleading process is justified — but more commonly after defences have been served. The conference is conducted in the presence of the parties in a conference room environment and involves a wide-ranging discussion aimed at identifying the real issues in the case and charting a strategic course particular to those issues, which will facilitate mediation, and if necessary, trial as quickly and efficiently as possible. During the procedure the judge will encourage the lawyers and the parties to think laterally, and to chart a procedural course which best suits the particular circumstances of the case, rather than simply adopting the traditional processes of pleadings, followed by particulars, followed by discovery, followed by expert evidence and witness statements, etc. Once that course has been charted, the lawyers and, at least as importantly, the parties will be aware of the direction in which the case is going, and can plan accordingly.

In complex civil litigation, expert evidence and discovery can consume very substantial amounts of time and money if not properly supervised by the court. In such cases, we commonly apply to these processes a similar approach to that taken in the strategic conference to which I have just referred. So, in a complex civil case a discovery conference will be ordered, attended by the lawyers and, if appropriate, the IT consultants to the parties, where the possible alternative approaches to discovery will be discussed in a conference environment and, ideally, in a collegiate way. The same general approach will be taken where substantial issues arise with respect to expert evidence. The topics ordinarily addressed in a conference relating to expert evidence will include the fields of expertise in which opinion evidence is to be given, the facts which the experts can assume for the purposes of their advice, the facts which are contentious and which might affect the opinions given and the questions to be posed to the experts, with a view to reaching agreement on these issues and avoiding the all too common phenomenon of the expert opinions being like ships passing in the night, and therefore of limited assistance to the court but involving great expense to the parties.

The increasing age profile of the Australian population, the increasing complexity and diversity of family configurations, and the increasing value of deceased estates is creating a burgeoning field of claims to the effect that a testator has made inadequate provision for a beneficiary in his or her estate. Although those cases turn almost exclusively upon the financial needs of the various parties who might have expected to receive the testator’s benefaction, and the size of the estate, it was all too common for parties to seize upon the claim as an opportunity for the ventilation of long-simmering family grievances, and affidavits were commonly filed giving vent to those grievances. Although the vast majority of these cases settle, usually at or after mediation, the exchange of insulting and offensive affidavits was often an impediment to early resolution. We responded to this problem by promulgating a Practice Direction^[47] limiting the topics which could be addressed by affidavit evidence prior to mediation to the essential issues in the case — namely, the value of the estate, and the financial position and needs of the prospective beneficiaries. Not only has that Practice Direction saved costs and time, it has greatly facilitated the ADR process.

During the last 11 years I have managed and tried a number of very significant cases which, at first sight, appear to be cases between commercial entities but which are, in fact, disputes between family members. Although I have not done a detailed analysis of the cases I have managed and tried over that period, I would estimate that at least half of the most significant and complex cases with which I have dealt have been of that character. I have gained the distinct impression that although those cases are, ostensibly, about money, like the testator’s provision cases, these are very often influenced, perhaps profoundly, by a significant underlying family dispute or grievance. Good ADR practitioners will identify and endeavour to resolve that underlying grievance. But it will assist the proper management of the case if the case manager is also attentive to the likelihood that the case may be about more than just the money. That appreciation will be facilitated through the more flexible and informal processes associated with what I would describe, in the civil justice system, as less adversarial justice.