A fundamental duty of our judicial system is to administer justice. It is currently failing abysmally in that regard.
Due to the exorbitant costs of having disputes determined by the courts, most of us Australians have realised that we cannot afford access to justice, and so just accept injustice. There is no point in having courts of law to determine disputes when most of us cannot afford the costs and risks of getting a decision. It is imperative that all of us have access to efficient and cost-effective dispute determination. If our legal fraternity is either unwilling or unable to make the necessary changes, a Classic Liberals government will remove their authority to determine such matters and set up another system.
Government and large corporations know most of us are unable to afford the costs and risks of legal proceedings and so fail to make any effort to resolve the dispute. Some even just ignore claims, expecting the complainant to come to the realisation that legal proceedings are cost prohibitive, and so ‘walk away’ from their complaint and forgo their claim of reimbursement of loss. So, the ‘big guy’ wins, regardless of the merits of the case. That is unacceptable and should not be tolerated. A Classic Liberals government will make the necessary changes. This may include ensuring that any of these big guys who do not use reasonable endeavours to resolve disputes, will be liable for the other side’s full legal costs, no matter the outcome of the dispute.
In the case of testamentary matters – will disputes – our judicial system is not just incompetent, it is causing significant damage in society by fracturing families and the cost of getting a decision is so outrageous that most people are unable to afford access to a dispute determination process and so just accept grossly unfair outcomes. And that’s not the least of it. Some of the law benefits only one group, the lawyers, not the testator, not the executor and not even beneficiaries. This field of law needs radical change – to the law, to court rules and to the process for determining the validity of wills. If our legal fraternity is either unwilling or unable to make the necessary changes, a Classic Liberals government will remove their authority to determine wills.
Then we have situations where in matters involving a government body, publicly funded by ratepayers and taxpayers, involved in a matter against an individual and the government body is represented by a firm of solicitors and court by two solicitors, a senior counsel barrister, and another barrister, while the individual is self-represented. That is not a fair fight, that is decidedly unfair. It is bewildering that our civil justice system, our Supreme Courts, are quite happy with that situation, even after it has been specifically pointed out to the judges. A Classic Liberal government will ensure that in relation to disputes with government, government pay the costs of equal representation for the other party.
It has become apparent that our civil courts have lost sight of their fundamental duty – to administer justice, to resolve matters fairly. Very few judgements even comment on the fairness of a decision or of the determination being the most just or fair outcome in the circumstances. That is frankly bewildering. Our civil justice system has become so obsessed with rule compliance that they completely ignore the role society expects them to perform and ignore the intention of the legislature. A Classic Liberals government will ensure that every judgement includes an explanation of how the determination was the fairest, most just, outcome, and it will ensure that court decisions reflect the intention of the legislation, not merely a strict interpretation of the relevant provision.
Our civil justice system does not merely need some change; it needs to be radically changed. A Classic Liberals government will bring about the biggest change to our judicial system in our history. Our legal fraternity can either co-operate in making this change or have its jurisdiction, the ambit of its role, severely cut.