Litigation: past and present

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We are often said to be witnessing a crisis in litigation, as increasing numbers of individuals (personal and corporate) turn to the courts to resolve disputes, law suits take up ever more time and money, and successful litigants receive ballooning damages awards. Litigiousness is usually viewed negatively, as problematic for political, social and legal institutions, and raising questions about access to justice. This two-day Academy workshop brought together 23 participants – historians, legal academics and practising judges and lawyers from Australia, New Zealand and the UK – to examine the construction and meaning of litigation from various comparative, historical and transdisciplinary perspectives.

Nine separate papers were presented under four thematic headings:

  • Litigation in early modern England
  • Colonial and comparative dimensions of litigation
  • Litigation in contemporary Australia
  • Litigation and Indigenous peoples

After a welcome from Fay Gale, the Academy’s Immediate Past President, Dr Christopher Brooks (University of Durham) drew on his pioneering analysis of English litigation from 1200 to 1996 to set the stage. Discussing ‘The longitudinal study of litigation’ Brooks raised many issues which would be addressed throughout the Workshop, while also dispelling any simplistic association between litigation and modernisation. He presented a profile of court usage based as far as possible on the initiation of actions, and emphasised that the threat of legal proceedings can be as important a feature of the role of law in society as trials or judicial determinations. Brooks also canvassed difficulties related to the comparability and meaning of the available court records, another recurring theme in our discussion.

English court usage over the past 800 years saw five secular waves, or booms – four of which have been followed by substantial drops in court business, most spectacularly in the early to mid-eighteenth century. An unprecedented expansion in legal business made the late sixteenth and early seventeenth centuries the most litigious age per capita in English history. The nature and causes of this phenomenon generated considerable discussion, touching on the role of the legal profession, the emergence of the corporation, and doctrinal changes affecting the circulation of promissory notes.

‘Going to law in early modern England: local and national perspectives’ by Christine Churches and Wilfrid Prest of the University of Adelaide (delivered by Wilfrid in his co-author’s absence) offered a qualitative analysis of the impact of law suits on the Cumbrian port community of Whitehaven during the century after 1660. They relied upon a variety of local sources as well as court records to suggest that litigation was usually begun only reluctantly, and after considerable attempts to negotiate a settlement, but nevertheless constituted an important resource for ordinary residents, who thereby gained some voice in aspects of the town’s development. The Whitehaven case study also illustrates the ways in which uncertainties of outcome, in part due to the law’s procedural formalism and in part to various external interventions, might encourage out-of-court settlements. The historical theme now shifted to colonial issues. Jeremy Finn (University of Canterbury) examined civil litigation in the early years of Christchurch’s settlement. Finn’s research, based on Supreme Court archives and contemporary newspaper reports, drew attention to the importance of definitions in determining the quantum of litigation (in this case account must be taken of large amounts of chambers’ work and the use of judgment orders). Supreme Court litigation was open to a wide cross-section of colonial society, although mercantile interests made most use of it; regular plaintiffs and frequent defendants could be identified and the enforcement of judgements was of central significance.

The impact of gender preoccupied ‘When married women litigate: issues from divorce and property disputes in colonial and contemporary Australia’ by Hilary Golder (Sydney) Rosemary Hunter (Griffith) and Diane Kirkby (La Trobe). This paper explored the various ways in which access to litigation formed one component of the story of married women’s quest for economic independence. From the origins and impact of the Married Women’s Property and divorce extension legislation enacted across Australia from 1870 to 1893, the paper went on to explore late 20th century family law proceedings against a background of legal aid cuts, increasing levels of self-representation in the Family Court and efforts to reduce the adversarialism of family law disputes. Divorce cases during the nineteenth century encouraged women to conform to a script of a long-suffering female passivity, as against male neglect and brutality.

The discussion clearly demonstrated that despite formal rules endowing women with rights in law, powerful cultural norms and informal expectations about women, marriage and paid work often act to undermine or dilute those formal rights.

Measurement of litigation rates was squarely the subject of ‘Hey, but who’s counting? The metrics and politics of trends in civil litigation’ by Ted Wright (University of Newcastle), but his concern was not solely with methodological or conceptual elucidation even despite the overall trend of decreasing rates of litigation over that period. Wright demonstrated carefully the ways in which increases in the numbers of legal proceedings commenced each year between 1984 and 2001 in NSW major courts of civil jurisdiction can and do drive legal policy, as claims of increasing litigation rates are picked up by policy makers and reflected in legislation. Moreover, legislative ‘reforms’ can trigger sudden troughs or peaks in the commencement of litigation and the perception of increasing litigiousness. Significant fluctuations are attributable to jurisdictional changes, specific issues (such as the breast implantation cases), changes to compensation for motor vehicle accidents, and other changes affecting legal rights. This lively presentation also raised numerous questions about the relationship between the numbers of court filings (either decrease or increase), perceived litigiousness and associated concerns with the alleged breakdown of social relations.

The first two sessions of the second day examined issues of procedure and identified changes internal to courts and their structures. In ‘Litigation and the Federal civil justice system’ a paper jointly written by David Weisbrot and Ian Davis (Australian Law Reform Commission) and presented by the latter, discussed the Commission’s major report Managing Justice (2000), which canvassed such issues as legal education, alternative dispute resolution, judicial education, legal aid and case management in the Federal justice system. In his own supplementary paper Davis emphasised that the Federal Courts are not experiencing a litigation explosion and that the kinds of cases and citizens confronting this court are distinctive; for example, the Federal Court is the major business court in the Australian federal system. Davis also discussed the emergence of the Federal Magistrates Service, the bulk of its work being family law issues. This presentation also tackled issues directly related to the legal profession, especially recent developments in legal practice, including contingency fees, representative or class actions and advertising. These reforms underline what he called the new entrepreneurial style of legal practice which is counterpoised to the notion of law as a profession rather than a business.

Recent major restructuring of the civil justice system was the focus of ‘Procedural reform and civil justice’ by David Bamford (Flinders). Structural changes have arisen from a sense of crisis about lack of access to justice, and litigiousness, to which policy makers have responded. A second crucial force is ‘legal consumerism’, with consequent increasing attention paid to the claims and needs of users of the courts, and the development of judicial case management procedures, with the aim of reducing delay and the promotion of pre-judgement settlements between contending parties. Public sector managerialism has also affected court administration, with the avowed aim of promoting greater efficiency and overall performance. Meanwhile the influence of globalism encourages sharing ideas and the adoption of reforms from other legal systems. Recent procedural reforms raise fundamental questions about the role of the courts, and of adjudication, in what is still formally an adversarial legal system, issues which received considerable attention in discussion after this paper.

The courts as a site for legal action in the cause of social justice was the subject of the final two papers. In ‘Challenging the status quo: Indigenous activism and the rule of law’ Larissa Behrendt (University of Technology, Sydney) argued that litigation which seeks to advance Indigenous interests needs to be undertaken in a more strategic manner than has occurred to date, while also cautioning that politically motivated litigation not so undertaken can be detrimental to progressive jurisprudence. Behrendt depicted the decision in Mabo v Queensland as a high point in Indigenous land rights and politics in Australia, underlining the general point that the courts have often shown an ability to deal more sympathetically and sensitively with these issues than hostile legislatures. Her paper further explored the potential to exploit the notion of fiduciary obligation in the native title context; judgments in Mabo suggested that even though a fiduciary obligation is not inherent in the relationships between Indigenous people and the Crown, there may be special circumstances that will give rise to a fiduciary obligation in the Crown’s dealings with native title. Lastly Shirley Scott (NSW) discussed ‘Terra nullius and genocide: international law as litigation strategy for Indigenous Australians’. Scott suggested that while formal rejection of the doctrine of terra nullius permitted the High Court to acknowledge past wrongs and change the law, it did not fundamentally challenge the self-perceptions of non-indigenous Australians, since past injustices could be blamed on the British authorities and racist international law. Genocide is a far more confronting concept, and even if policies of child removal pursued as recently as the 1970s might conceivably come within the ambit of Article 2 of the 1948 Genocide Convention, there seem to be insuperable legal and psychological barriers to pursuing a campaign in the courts based on this claim. Where litigation is sought to be used as a means of bringing about major social change, attention must be paid not only to legal mechanisms, but also to their symbolic role and resonance.

A final panel discussion led by the convenors provide an opportunity to revisit many themes raised during the workshop, including the problems of defining and measuring the incidence of litigation, the varying cultural, social and political roles of law courts, the judiciary and the legal profession, and the importance of history as a means of obtaining perspective and insights on contemporary issues, including purported litigation crises. After canvassing future avenues of publication, and another possible workshop on lawyers now and then, proceedings closed with a vote of thanks to the Academy, the Law Foundation of South Australia (whose generous support facilitated Christopher Brooks’ visit), the Barr Smith Library, and Robyn Green, Julie McMahon and Julie Thorpe of the History Department, University of Adelaide.

Dr Sharyn Roach Anleu is from the, Department of Sociology, Flinders University of South Australia.

Professor Wilfrid Prest is in the Department of History, University of Adelaide.

A copy of this report appeared in Dialogue Vol. 20, No. 3, 2001.

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