Evaluation of providing a judge with more inquisitorial powers
1. In 2014 the chief justice of the Victorian Supreme Court recommended that the judge’s case management powers under the Civil Procedure Act 2010 (Vic) be expanded to introduce a less adversarial procedure for civil trials and to give the judge a more inquisitorial fact-finding role.
2. The judge could exercise this additional control in all civil matters by, for instance, reviewing a written summary of legal arguments before trial, and directing the parties on which arguments to make in it; putting strict time limits on arguments to keep the trial flowing efficiently; asking their own questions of witnesses if parties are missing important information or are deliberately structuring their questions to hide unfavourable information; or giving advice to parties on what arguments to make and how to use evidence
3. Fairness could be achieved in the trial by using the judge’s experience to reach a verdict that was based more on the probable truth of the matter than on the variable quality of the parties’ arguments.The judge often has more legal experience than the lawyers arguing before the court, and more than the parties, so giving them inquisitorial powers would fully utilise this legal experience. The former chief justice of the Supreme Court, Marilyn Warren, has years of experience on the bench, and was able to see the impact of the case management powers given in the Civil Procedure Act 2010. She does not make the recommendation from the position of either the plaintiff or the defendant, but instead believes that an increased fact-finding role for the judge would achieve natural justice and still maintain judicial independence.
4. Giving the judge heightened fact-finding powers could increase equality between the parties, if they begin on uneven footing, but it could also increase inequality if the judge uses their discretion to assist one side more than the other. An initial inequality across parties could have a reduced impact on the outcome of the case, if the judge is able to ask questions of witnesses that ought to have been asked, or request that evidence be led that they feel is missing from the trial. This could result in equity in the verdict, because both sides of the case would be looked at more comprehensively. It could also give equality to parties with fewer resources and less experience with the justice system, as they would benefit from judicial expertise. On the other hand, procedural equality is about giving parties equal choices and equal power to decide the best way to present their own cases; taking this away will not necessarily achieve ‘better’ equality. Also, the judge may make decisions that seem to favour one side over the other, and the perception of equal treatment before the law could be lost. Equality is at risk depending on how the judge exercises the power.
5. Giving the judge a more inquisitorial role could increase access and the fairness of the verdict, basing it more on a complete view of both cases and an efficient trial process, but it could decrease the reality or perception of equality before the law. Fairness could be achieved in the trial by using the judge’s experience to reach a verdict that was based more on the probable truth of the matter than on the variable quality of the parties’ arguments.The judge often has more legal experience than the lawyers arguing before the court, and more than the parties, so giving them inquisitorial powers would fully utilise this legal experience. Allowing the judge to intervene during the hearing of the case, however, suggests that they begin the trial with some idea of the truth of the claims and the proper outcome – they are making decisions about the evidence before they have heard all the evidence. This is encouraging bias more than utilising experience.
6. Also, the judge may make decisions that seem to favour one side over the other, and the perception of equal treatment before the law could be lost. Equality is at risk depending on how the judge exercises the power. If used carefully, any initial inequality across parties could have a reduced impact on the outcome of the case, if the judge is able to ask questions of witnesses that ought to have been asked, or request that evidence be led that they feel is missing from the trial. This could result in equity in the verdict, because both sides of the case would be looked at more comprehensively. It could also give more effective access to parties with fewer resources and less experience with the justice system, as they would benefit from judicial expertise in presenting their case properly. This relies on the judge ‘entering the fray’, though, and stepping down from their position of neutral umpire. Each decision made could be judged, and appealed, based on the extent it seemed to favour one side over the other.