SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 12 SEPTEMBER 1995
|(1995) 7 SAcLJ 253
|01 December 1995
|01 December 1995
I count it as a privilege to have been invited to deliver the second in this series of annual lectures organized by the Singapore Academy of Law. The invitation recognizes the bonds that exist between Singapore and Australia, not least of which is the common law heritage that both countries have acquired from the United Kingdom. That heritage is a vital element in the framework of government in our societies. It is an important link between us that is overlooked sometimes when so much emphasis is given to trading relationships.
As the title to this lecture implies, though perhaps with no great clarity, I shall speak of developments both procedural and substantive that have taken place in the courts in Australia in the last decade. The outline which I shall give is by way of provision of information. I do not put forward what we have done as a model for others to follow. Conditions and circumstances vary from country to country and result in differentiation in the characteristics of particular legal and court systems. What is appropriate for Australia, with its large continental land mass and thinly spread predominantly Anglo-Celtic population clustered around coastal cities, is not necessarily appropriate for the City-State of Singapore, the south-eastern gateway to Asia. It is with that preliminary averment that I turn to the topic.
As we all know, the common law adversarial system is a time-consuming and expensive model. It is labour intensive and expensive, not only to the users, but also to the government that funds it by providing the judges, court staff, premises and other facilities. The emergence of the litigious society in the United States, with its high expectations of redress through resort to litigation, has been mirrored in Australia on a smaller scale. The consequence has been an enlarged court system at great cost to government. But the enlarged court system has not eliminated delays, and the cost of the system to its users has continued to rise.
It was about ten years ago that initial efforts were made to identify and meet the problems. The initiative came partly from the judges themselves
but, more importantly, from governments. It was influenced by the belief, founded on economic rationalism, that you can cut public outlays by enhancing efficiency. So you can. And, so long as you are not compromising the integrity of the relevant function — in this case the administration of justice — there are strong reasons for insisting on enhanced efficiency. In the court system there was certainly a need for it.
At the same time, in the early stages of the move towards greater efficiency, there was justifiable judicial concern that the interests of justice would be sacrificed on the altar of efficiency and cost cutting. Some proposals relating to the courts smacked of the way in which economists would deal with a production plant. There were proposals that salaries and funding should be related to productivity, apparently measured by the number of cases processed. Happily these suggestions did not take root.
Coupled with the demand for greater efficiency were the demands for increased accessibility and judicial accountability. These demands had their parallel in the United Kingdom and elsewhere. Increased accessibility and accountability and greater efficiency do not necessarily go hand in hand. Accessibility and accountability require the provision of additional resources which might otherwise be devoted to a court’s judicial work.
One outcome which was related indirectly to the efficiency reforms was the decision of the Federal government to grant administrative autonomy to each of the Federal Courts. The High Court of Australia had enjoyed such autonomy since 1979. That autonomy has been extended also to the Federal Court and the Family Court. Each court is given an annual budget designed to cover its operations for the year. Within that budget, it provides its own administration, instead of having its administration provided and financed by the Attorney-General’s Department from its general budget. The Federal Courts therefore have their own administration. Their officers are responsible to the Chief Justice or the judges generally. The new system works well. It eliminated a source of friction that existed between the courts and the executive and it has enabled the federal judges to institute case management and procedural reforms which might have been viewed less enthusiastically had they been introduced by the executive itself.
Although the devolution of administrative responsibility to the courts themselves was linked indirectly to efficiency, the principal purpose of the reforms was to reinforce judicial independence. It was felt that the dependence of the courts on the executive government for the provision of administrative services compromised the independence of the courts.
The advent of new technology has enabled the courts to gather, assemble and process a wide range of data relevant to court operations. The
information embraces the budget, financial planning, up-to-date financial situation, library services, research (including legal research for use by the judges), training as well as the caseload, case flow management, including caseload disposition in the light of the resources available at any time and the need, if any, for additional resources. There is no question that the new technology has enabled the courts to devise and achieve more efficient administration of their resources so as to meet the caseload and the needs of consumers. Without the new technology, that would not have been possible.
Various procedures have been adopted with a view to expediting the trial and the appellate processes as well as the hearing itself. In addition, specific measures have been devised to clear up delay and congestion in court lists of cases awaiting hearing. Case management, largely based on the United States model, is now an established procedure. I was about to say an “accepted procedure” but that would be a mistake, because there has been some professional criticism of case management on the ground that it involves additional preliminary hearings and call-overs and thus increases the legal costs of litigants. It is difficult to gauge whether this criticism has any substance.1 Perhaps the true cause of extra costs is delay by the parties’ legal representatives. In any event, case management results in expedition of the litigious process and that, on balance, is likely to improve the quality of the administration of justice.
Case management is a comprehensive regime for the management of a legal proceeding, in which attention is given to time and the steps to be taken from the commencement to the disposal of the proceeding. It involves the setting of a timetable and supervision of progress through that timetable. Case management includes differential case management. In other words, the management requirement is related to the requirements of the particular case or class of case.
Of course, case flow management does impose a greater burden on judges and court officers. The responsibility of ensuring that cases move forward entails monitoring and continuous communication with the representatives and the parties. Consequently, case management consumes more time than the old laissez-faire approach.
In civil litigation, especially without a jury, the courts are now applying the time-saving procedures developed by judges in commercial cases. In directions hearings, efforts are made to reduce contested issues of fact to the fundamentals of the dispute. Specific issues are often formulated by
the judge, sometimes by agreement, and, where possible, matters are left to proof by affidavit. Listing and exchange of relevant documents, instead of discovery, are provided for and the evidence in chief of witnesses is given by way of verification of a written statement of evidence. That practice has been criticised on various grounds, including the ground that, particularly in protracted cases, the statement suffers on occasions from complexity due to too much input on the part of the legal representatives. But, on balance, the new practice is thought to be efficient and fair. If possible, submissions are put in writing, particularly on appeal, where the growing trend is to require written argument to be presented in advance of the hearing.
Simplification of the rules of evidence would reduce time taken in the trial. A new evidence statute2 has been prepared with a view to achieving this object and making provision for the admissibility of materials generated by the new technology.
The evidence of expert witnesses is often given in the form of reports, subject, of course, to cross-examination. Efforts are made to limit the number of experts called in order to reduce the time taken in receiving their evidence. One of the reform proposals under consideration is for the court itself to appoint expert witnesses.3
The initiative in, and the control of, the litigation is, as a result of these procedures, passing from the parties to the judge. The judge is becoming a manager of the litigation process before the case comes to trial. More than that, the judge is becoming, to some extent, a manager of the trial. The judge is now expected, more so than in the past, to take steps to prevent unnecessary waste of time as, for example, in unduly protracted and unprofitable cross-examination. For my part, I consider that a judge should be entitled to set reasonable limits to the cross-examination of a witness. And, likewise, a judge should be entitled to limit the number of witnesses to be called if it emerges that nothing is to be gained by the calling of additional witnesses. Although a much-talking judge is like an ill-tuned cymbal, we should recognize that a more...
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