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THE COST OF JUSTICE

Submission by N E Renton to the Senate Standing Committee on Legal and Constitutional Affairs

1. I understand that the Committee is interested in getting details of actual litigation which demonstrates features relevant to its Terms of Reference. A case in which I was the plaintiff was concluded recently and I am therefore making this Submission in the hope that it will assist the Committee.

2. The case arose out of a deliberate attempt by tenants of an office property owned by me to cheat me of some thousands of dollars in arrears of rent and outgoings and (in a complete lack of commercial morality) to breach an agreement freely entered into.

3. The tenants were professional people - architects and engineers - and the pattern of lies, broken promises to pay and dishonoured cheques was therefore completely unexpected. One of the principals was even a JP, a quite astonishing feature. I was most reluctant to litigate, but being nice had got me nowhere.

4. Eventually the case was settled at the door of the court for about $9,200, but my costs of getting there exceeded $3,600. The costs of the other side were no doubt similar, so the effect was that it would have cost them a gross $12,800 in order to get me a net $5,600. The absurdity of this speaks for itself.

5. The process took 14 months from my first instructing a leading firm of solicitors to institute action, so that the actual damage to me was increased by a considerable loss of interest, not to mention the frustration. I find the inefficiency of the entire legal system and the costs to innocent parties caught up in it quite appalling. In my case I had no option but to litigate, as otherwise I would have received absolutely nothing. I was faced with defendants who were intransigent as well as dishonest and who chose to ignore my warnings that I was serious in pursuing justice.

6. What I had not expected was that my losses would be compounded by

  • three separate sets of incorrect advice from an incompetent barrister, who then had the gall to charge $535 for his services

  • numerous delays caused by repeated failures in my own solicitor's office to show any sense of urgency.

    7. A persistent pattern of inactivity, unreturned telephone calls, delays and mistakes even caused me to write to a senior partner whom I knew socially - this led to no improvement and I was not even accorded the courtesy of a reply or a telephone call.

    8. Another disturbing feature was one which I understand is typical of many solicitors - the "leave it all to us" mentality, which treats the client as an idiot and keeps him in the dark as to developments in his case and discussions with the other side.

    9. I refused to accept this and insisted on seeing a draft Summons. This was just as well, as I found it included one sentence which was simultaneously

  • highly damaging to my case
  • completely contrary to my instructions
  • internally inconsistent with the rest of the document.

    How a barrister and a solicitor could both let it go out thus is beyond my understanding. Apart from its legal imperfections, the document showed great carelessness in its production (spelling mistakes, typing errors, and so on). Even the elementary precaution of adding up the figures would have shown that they had not been copy-typed accurately from my instructions. When I objected, the final document was produced, with a sentence which was complete nonsense (it talked of "receiving from the Leasee (sic)" instead of "giving to the Lessor") and another which for the reasons stated earlier in this paragraph should have been omitted.

    10. In advice dated 1988-10-11, the barrister asserted that I had to go to arbitration. On 1988-12-01 at a preliminary conference before the arbitrator it turned out that this was completely incorrect. Apparently the plain words of Section 21 of the Retail Tenancies Act 1986 (Victoria), to the effect that disputes between landlords and tenants must be referred to arbitration, do not mean what they say, so shoddy legal drafting by Parliamentary Counsel cost me about $2,000 in fees for the solicitor, barrister and arbitrator on the day and caused many months of further delay.

    11. To make matters worse, the arbitrator, in a surprising departure from accepted practice, refused to waive his fees despite not having entered the reference.

    12. The Summons issued in February 1989 and drafted by the same barrister omitted an essential paragraph dealing with the jurisdictional limit of the Magistrates' Court, despite the fact that I had specifically raised this matter with my solicitor on 1989-02-03. This caused a further two months' delay.

    13. In another disgraceful incident, I was not informed of this error until 1989-06-15 when, after numerous requests, a copy of the issued Summons was at last sent to me. My solicitor was unable to explain why I had not been told!

    14. The bureaucracy did not help at another level, when the case listed for 1989-08-24 had to be postponed to 1989-10-19 because the Magistrates' Court forgot to inform one of the defendants of the hearing date. More costly delays from the legal system, without its innocent victims having any chance of compensation.

    15. I can understand that solicitors are busy people and that small clients are given lower priority than large clients, but it is quite unacceptable that mechanical tasks such as supplying copies of documents in their possession should take up to four weeks and that these are not forthcoming without several reminder telephone calls.

    SUGGESTED SOLUTIONS

    16. Possible means of improving the system indicated by the above would include:

  • higher jurisdictional limits for the lower courts
  • increasing the number of judges and magistrates to whatever extent is necessary to completely eliminate delays in the court system
  • improving the drafting of statutes so as to increase the certainty as to what the law is
  • improving the training of lawyers by including units dealing with management techniques, public relations and commercial realities in their courses
  • putting people with administrative skills rather than legal skills into running courts and scheduling cases
  • providing appropriate compensation for people adversely affected by defects in the legal system
  • facilitating access to the courts by parties not wishing to be legally represented
  • completely barring legal representation in simple cases.

    17. To elaborate on the last two points, appropriate officials should be available to assist parties on procedural aspects, possibly on payment of a nominal fee. There should be manuals setting out in plain language the mechanical requirements for initiating and fighting a case. Barring lawyers on both sides in simple cases would greatly reduce both costs and delays and allow justice to be done in circumstances where the economics at present favour inaction - advantages which could more than offset any lack of skilled representation. In any event, as the above facts indicate, the alleged skills of the legal profession leave a lot to be desired.

    18. The criminal law should be more closely aligned to the civil law. It is absurd that the police regard stealing of goods as theft but "stealing" of rent (by deliberate non-payment while in occupation, as in the above case) as "a civil matter" of no concern to them.

    1989-12-22

    • © N E Renton 2006

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