Keeping the lid on legal costs

Earlier this year, NSW Chief Justice, Jim Spigelman questioned the justification of lawyers' 'time billing' in matters and noted that it was "difficult to justify a system in which inefficiency is rewarded with higher remuneration". Indeed, following His Honour's comments, the NSW Law Society announced an inquiry into the practice, while a NSW Court of Appeal Judge referred to a matter before him as a "grossly overblown piece of litigation" and criticised the way many matters were conducted in NSW.

The case on appeal involved a worker successfully suing her employer for damages as a result of injuries arising out of a workplace accident. The trial involved eleven days of evidence with a further two days for the judge's summing up and both parties' submissions. There were 10 witnesses including the plaintiff and six doctors giving opinions about a relatively minor injury. The employer successfully appealed the trial judge's decision.

Two of the Appeal Judges expressed amazement that such a straightforward workplace injury case could have taken up so much of the court's time. Justice Palmer questioned whether this particular case, and the way it was conducted at trial, was representative of how litigation was being conducted in NSW. If it was, he said, "that culture cannot be allowed to continue; justice does not require it, litigants do not want it, and the community can not afford it."

Justice Palmer went on to say that the entire legal profession bore the responsibility of "changing the way litigation was conducted". He reminded the parties that the legal profession had a duty to conduct cases "efficiently, expeditiously and economically".

His Honour also recognised the need for judges to become more involved in the conduct of cases, citing the example of judges intervening when counsel dwelt too long on what the judge described as irrelevances and needless repetition.

Other ideas suggested by His Honour mirrored Part 34 of Rule 6AA of the NSW Supreme Court Rules. That rule is a good example of the 'stop watch' rule as it bestows upon judges of the Supreme Court the power to limit a variety of matters. These include how long a trial will take, the taking of evidence from witnesses, the number of witnesses, the time for submissions and the time for each party to present its case.

It is clear that neither the NSW Chief Justice nor the Court of Appeal want parties to rush trials with 'one eye on the clock', as it were. How long a trial should run should reflect the complexity of the matter, the issues involved and overall ensuring a fair trial for the parties. According to the Court of Appeal, this particular workplace injury case was a straightforward damages claim and certainly did not warrant a thirteen-day trial. Justice Palmer acknowledged that the District Court Rules did not contain a provision similar to the one contained in the Supreme Court Rules and therefore, not surprisingly, he went on to recommend that all court and tribunals have their rules amended to include such a provision.

What can be seen by the NSW Court of Appeal's comments is that they want all members of the legal fraternity to avoid situations where, as one judge described, "an extraordinary simple case has blown up into a monster". Not only do legal practitioners need to rethink their approach to litigation, but they will also need to re-educate their clients to accept that shorter trials do not necessarily lead ultimately to unfair verdicts.