Activity 5v

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of judicial case management to achieve the principles of justice requires students to write about relevant strengths and weaknesses of aspects of judicial case management. Responses will vary according to the arguments selected.

Arguments in support of judicial case management (in relation to control over parties) achieving the principles of justice include:

• The power of the judge to direct parties in a civil case limits the ability of a stronger party to unfairly manipulate the rules of court to delay resolution, reduce the access of the opposition to justice, or misrepresent the facts of the case – this promotes a more substantial equality between the parties.
• Case management powers are directed towards facilitating the most effective, efficient and prompt resolution possible. This is why the judge can take multiple opportunities to order mediation or rule on preliminary matters that do not require a contested hearing. Access is increased for both parties if the resolution process is shorter, cheaper and more efficient.
• Compelling at least attempted mediation reminds parties to a civil dispute that their matter is a private one between individuals, and that the state is only providing them with a framework to resolve their problem. Usually, however, living in a community and working with others requires the individuals involved to take responsibility and compromise – this leads to longer-term resolution and better access to meaningful and permanent justice than the state stepping in and enforcing its own decisions.

  Arguments against judicial case management (in relation to control over parties) achieving the principles of justice include:

• Some parties may feel that the case management powers strip them of access to justice by taking too much of their decision-making ability away.
• Judges can only use case management to encourage parties to resolve the dispute more efficiently, and to facilitate opportunities for negotiation – they cannot force parties to compromise or to approach resolution with the goal of reaching an efficient and fair outcome.
• Judges cannot ensure that the resolution agreed upon in mediation is fair and appropriate to the evidence in the case – this means that one party may agree to an unfair outcome if they lack knowledge or are less assertive or aggressive.
• Parties may engage in faster dispute resolution as a result of case management, but the evidence suggests that it is more time-consuming and expensive dispute resolution because of the increased solicitor preparation time required early on in the dispute.

 Arguments in support of judicial case management (in relation to control over evidence) achieving the principles of justice include:

• Case management over evidence can reduce the ability of parties to overwhelm the court with immaterial or contradictory evidence – evidence can be limited to only that which is strictly necessary to prove or disprove the key issues in dispute, making the task of the opposing party and the judicial officer much clearer.
• The ability of the judge to limit the number of witnesses that can be called, or limit the questions they can be asked, makes the process a better one for the witnesses, the judge and the potential jury – not just the parties. It increases access for all stakeholders, and reduces the waiting time for other disputes needing court time.
• Judges have the power to clamp down on the common practice of calling expert witnesses who have been selected and paid on the basis of their willingness to give a version of the facts that favours the party paying them – which can lead to multiple experts all arguing entirely different versions of the material. The court can appoint a single common expert, ensuring that fairness is maintained while efficiency is achieved.

Arguments against judicial case management (in relation to control over evidence) achieving the principles of justice include:

• Giving the judge powers over what evidence can be brought and elicited at trial aims to make resolution more efficient, but it also seems to be based on the idea that this control can help to better discover the ‘truth’.
• Allowing the judge to control what evidence can be brought out at trial, and what questions can be asked of the witnesses, suggests that the judge can somehow see the way to the truth before the trial has even been held. How can the judge know what evidence is necessary and probative before that evidence has been tendered at trial and cross-examined? This could result in an unfair outcome, based on the judge pre-judging the evidence.

Arguments in support of judicial case management (in relation to control over trial) achieving the principles of justice include:

• Judicial case management aims in part to make the eventual trial as efficient as possible: limits can be put on addresses, on the questioning of witnesses, and even the evidence that is allowed to be brought – this increases access to justice for parties because time and money is not spent on trial material and processes that are not necessary for the resolution of key issues.
• Mediation has an average demonstrated success rate of around 30-60% depending on the court in which it is used – including for cases on appeal. In every single one of these resolved cases, days to years of time has been saved, and potentially hundreds of thousands of dollars. This form of resolution increases access by decreasing the cost and time barriers to justice.
• Section 66 of the Civil Procedure Act 2010 permits the court to order mediation at any time during the dispute, including midway through trial. Courts can therefore encourage immediate settlement and closure whenever they see an opening in the attitude of the parties – they are not limited to pre-trial directions in relation to appropriate dispute resolution orders.

Arguments against judicial case management (in relation to control over trial) achieving the principles of justice include:

• The fact that case management powers extend into trial conduct arguably diminishes the adversarial nature of civil trials – if the judge has too much of an interventionist role in deciding what trial conduct is and what material is presented, it interferes with the judge’s status as an independent umpire. The right of parties to an independent adjudicator is protected in the fair trial provisions of the Victorian Charter, in s24.
• The timelines established for trial can be estimates only – it is not uncommon for witness questioning to take either more or less time than anticipated, after which the trial may need to be adjourned to allow the party to bring their next witness to court at a time that was not predicted; legal issues or new allegations can also arise during trial that were not on the pleadings because neither party foresaw them. In these cases, the timetable either must be discarded, or fairness must be compromised by refusing to admit the new material.
• Equality can be impaired if one party understands pre-trial better than the other. A more experienced party might, for instance, make their statement of issues broader, or write it in more ambiguous language.
• Judges can only order parties to attempt mediation – they cannot order parties to agree to a resolution. If one party is determined to frustrate the proceedings, the time and money spent in mediation will delay trial, without any materials discussed during the mediation being admissible at trial. The increase in costs and time decreases access, because the ordered mediation would be incurred on top of the complete trial.

Arguments in support of judicial case management (in relation to enforcement powers) achieving the principles of justice include:

• The judge would be nothing more than a ‘toothless tiger’ if given case management powers but not given the ability to enforce those orders or punish parties for not following them – the enforcement powers given to Victorian courts are the greatest of any jurisdiction in the country, and give judges significant flexibility in tailoring the consequences of poor party behaviour to the circumstances of the dispute, achieving fairness.

Arguments against judicial case management (in relation to enforcement powers) achieving the principles of justice include:

• It could be argued that the enforcement powers of judges go too far – even if parties act in bad faith, it is reasonable to consider it inappropriate or unfair to, for instance, award judgment against that party even though they won on the evidence and law.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against judicial case management, that it does achieve one principle of justice. Responses will vary according to the arguments selected.