Navigating Proceedings through the Multi-Door Court house: Moving beyond an ‘adversarial’ or ‘non-adversarial’ characterisation

Justice B J Preston, Chief Judge1Joanne Gray, Registrar2

1 Land and Environment Court of NSW, GPO Box 3565 Sydney, NSW, 2001

2 Land and Environment Court of NSW, GPO Box 3565 Sydney, NSW, 2001

The rise of non-adversarial justice has been achieved through the use of active and differential case management by courts to diagnose disputes, refer them to an appropriate dispute resolution process, and to ensure that the way in which that dispute resolution process is managed is effective and fair.

Historically, however, the traditional adversarial approach to the conduct of litigation has been characterised by the control of court proceedings by practitioners. The representatives decide for themselves how the case will be brought before the Court, the early mentions are simply ‘call-overs’ adjourned until fixed for hearing, and the parties arrive at the trial with their own battle lines drawn and every possible issue, however remote, prepared for ventilation.

The first step in moving away from this traditional adversarial approach has been to recognise that the nature of court proceedings does not inherently necessitate them being adversarial. Second, individual proceedings need not and should not be characterised as either ‘adversarial’ or ‘non-adversarial’ at any particular stage. To do so stigmatises those proceedings rather than recognising that at each stage of the proceedings steps can be taken by the court that are non-adversarial in nature.

Third, in moving away from the traditional approach, the modern court recognises that there are many different ways of resolving proceedings. The concept of a court offering a range of dispute resolution services has been described as there being a ‘multi-door’ courthouse. In navigating proceedings through a multi-door courthouse, the court uses active and differential case management to determine the best way that the proceedings ought to progress. In so determining, various approaches to non-adversarial dispute resolution can be explored. These include both alternate dispute resolution methods, such as conciliation and mediation, as well as non-adversarial approaches to the conduct of the hearing itself, including through the giving of concurrent evidence, conducting a hearing outside of a court room, hearing from persons who are not parties to the proceedings, and the court having a more active inquisitive role throughout the conduct of the hearing.

Fourth, the introduction of uniform civil procedure rules has allowed the courts to use increasingly active case management and to move toward a more inquisitorial approach to the conduct of hearings, including directions hearings, whilst also maintaining procedural fairness. To achieve non-adversarial justice, early mentions have moved away from being a ‘call-over’ to a hearing on the appropriate directions, enabling the court to determine what the issues are and to exercise control over what documents or evidence the parties seek to rely on. Further, all evidence is filed and served well in advance of the hearing, and various techniques can be used to ensure that the evidence is discussed between experts prior to the hearing.

The move away from the traditional adversarial approach toward non-adversarial techniques in a multi-door courthouse therefore increases efficiency and promotes fairness, ensuring that the dispute is met with the appropriate dispute resolution process and that the chosen process is managed in a way that avoids the ills of the adversarial approach. This paper will examine the role of active and differential case management in achieving this, the various non-adversarial processes that can result, and how this is used in the Land and Environment Court in environmental and planning disputes.

Biography

Ms Joanne Gray was appointed as the Registrar of the Land and Environment Court of NSW on 1 October 2010, having acted in the position since January 2009. Ms Gray has a Bachelor of Laws with first class honours and a Bachelor of Science (Psychology). Ms Gray is also a nationally accredited mediator. She has a background in registry and case management in NSW courts, commencing with her employment in Local Courts in 2005 and subsequent employment as a Deputy Registrar and Senior Deputy Registrar of the Supreme Court.

As the Director and Registrar, Ms Gray has the overall responsibility for the administration of the Land and Environment Court and also exercises judicial powers by delegation, including conducting directions hearings and hearing and disposing of motions and costs hearings. The Registrar also conducts mediations and conciliation conferences, and presents regularly on practice and procedure in the Land and Environment Court. Ms Gray has recently been appointed as a Commissioner of the Court, commencing on 18 April 2017.

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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