Lawyers can “maximise” contribution to society by improving access to justice, says Spigelman

by Azadeh Khalilizadeh

The legal profession has not sought to articulate with “sufficient force” the scope and significance of its social, economic and political contribution, according to NSW Supreme Court Chief Justice Spigelman.

In a paper delivered to the 35th Australian Legal Convention in Sydney on 24 March 2007, the Chief Justice outlined the need for the legal profession to make law and legal decision-making more accessible and called for lawyers to address the costs involved.

“I am concerned with the overall costs imposed by the system upon parties, not simply legal costs,” he said.

Does the public know what lawyers do and why?

Spigelman CJ recognised the widespread “lack of understanding” of the functions performed by lawyers, despite assumptions by the legal profession that the public at large understand what lawyers do and why.

“There has been no systematic effort by the profession to articulare for the benefit of the public, in a comprehensive form, the positive contribution made by the legal profession to our economic, social and political life,” he said. “Remedying the situation should be a major, indeed a central, task of the institutions that present the profession, both at a State and national level.”

Lawyers should help individuals and corporations achieve a sense of security

According to the Chief Justice, individuals and corporations need a sense of security and lawyers play an essential in helping members of society know they can pursue their lives with a “reasonable degree of security”.

“Lawyers perform a critical role in the promotion of social order by the administration of the law in a manner which answers the fundamental requirements of justice, namely fair outcomes arrived by fair procedures,” he added.

Spigelman concerned delays and costs hinder access to justice

Spigelman CJ said the two principal issues hindering access to justice have been delay and costs. However, while the problem of delays of cases for five or more years is no longer common, costs of the legal process are still a concern.

“We must be concerned with the entire range of what is required or permitted to be done, by whom and when, over the course of civil dispute resolution,” he said. “We must continually re-engineer the process of dispute resolution because the pressures on the process are in a continual state of flux.”

Why commercial litigation is a “drag” on the economy

The Chief Justice said despite the transformations made by management techniques, technology and micro-economic reform on commercial litigation, the costs have not diminished.

“The costs and delay of commercial litigation and corporate insolvency should be regarded as a drag on the economy,” he said.

The Chief Justice described amounts disputed in commercial matters as “dead capital”.

“Neither party to a commercial dispute can treat the amount in dispute with confidence, as either working capital or for purposes of investment or for distribution to investors,” he said. “The longer a commercial dispute continues…the greater the loss to the community in terms of dead capital."

In this regard, Spigelman CJ called for the profession as a whole to restrict delays and costs in the commercial litigation process so lawyers can make an even greater contribution to society.

“If we wish to maximise the positive social contribution of the legal profession, we must seek to resolve commercial disputes and liquidations expeditiously,” he said. “It is a worthy objective.”


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