In Common Law countries, such as Australia, there are two primary systems of law that govern how litigation is conducted. These include the adversarial system of law and the inquisitorial system of law.
In today's overly litigious society, the common view remains that litigation is one of the most effective means of addressing and settling a dispute amongst parties. By taking unresolved or unresolvable matters to court, the court by its powers in accordance with the law could make a determination on behalf of the parties. However, in recent years, society has become more aware of and increasingly utilised alternatives or non-adversarial procedures to settle the diverse range of matters that might otherwise had to have been resolved through litigation. Avenues such as alternative dispute resolutions (ADR), which most notably encompass methods such as arbitration, conciliation and mediation, are a swifter and cheaper viable alternative to litigation, used by tribunals and other organisations including court. This observation report seeks to provide an insight into the differences of the adversarial nature of litigation and other non-adversarial justice alternatives.
In Common Law countries, such as Australia, there are two primary systems of law that govern how litigation is conducted. These include the adversarial system of law and the inquisitorial system of law. The commonly applied adversarial system of law is one in which relies on the skill of each advocate representing their party's best interests, in addition to a neutral person, most notably the judge, who seeks to determine the truth of a case, and hence derive an outcome. The role of the judge in such a system is to act as an arbiter of justice, by ensuring that fair process is followed rather than illicit facts and evidence from either party. It is the responsibility of the parties for defining issues in dispute and for investigating and advancing the disputes.1 On the other hand, some courts feature the inquisitorial system, where the court seeks to be actively involved in determining the facts of the case. Under this system, the judge plays a more active role both prior to and during the trial phase, and may even participate in the fact-finding inquiry.2 In contrast to the adversarial system, the advocates for the respective parties play more of a passive role, allowing the presiding judge to conduct his or her own enquiries into the presented facts, rather than depending on the parties being able to identify their own interests and fight their own battles.
However, whilst the two aforementioned systems of law are successful in their own right, they are usually confined to large commercial disputes, or criminal proceedings. As a result, such systems are not suitable in all areas of dispute resolution. Arenas of law such as family law, or civil disputes on a smaller scale can't readily be resolved through an adversarial or inquisitorial court, particularly due to the uneconomical nature of doing so, or the fact that the parties have no, or little access either to information or to adequate representation. Alternatives to litigation are necessary for those seeking ...
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However, whilst the two aforementioned systems of law are successful in their own right, they are usually confined to large commercial disputes, or criminal proceedings. As a result, such systems are not suitable in all areas of dispute resolution. Arenas of law such as family law, or civil disputes on a smaller scale can't readily be resolved through an adversarial or inquisitorial court, particularly due to the uneconomical nature of doing so, or the fact that the parties have no, or little access either to information or to adequate representation. Alternatives to litigation are necessary for those seeking to settle small disputes by taking them outside the court arena, with an emphasis on resolving the dispute and orchestrating settlement. Alternative dispute resolution is a means of achieving non-litigious resolutions of disputes. Glasser,3 in his article Dispute resolution: Civil Justice and its Alternatives, suggest that even before lawyers were showing an interest in alternative dispute resolution, there were indications of increasing self-consciousness about their role in settlement-seeking activity and negotiations generally.
For the purposes of this observation report, the Victorian Civil and Administrative Tribunal (VCAT) was chosen as the place to observe non-adversarial practices within the Victorian justice system. VCAT's User Service Charter states VCAT's purpose is: to provide Victorians with a Tribunal that delivers a modern, accessible, informal, efficient and cost -effective civil justice service". The establishment of VCAT served as a one stop shop, that dealt with a range of disputes ranging from the purchase and supply of goods, to discrimination to residential and retail tenancies. VCAT deals with such disputes via mediations, hearings or compulsory conferences, which effectively takes such disputes out of the court arena, making it more economical for those parties who can neither afford legal costs or time in seeking a resolution to their disputes.
In the various cases that were observed at VCAT, some disputes were resolved using the adversarial approach, and some via the inquisitorial approach, however it was also noted that some actively engaged in a mixture of the two. A prime example of an adversarial orientated dispute was witnessed in the civil hearing of John Margins v Alex Ferzano Furniture & Fittings. The case involved a civil dispute regarding the outstanding monies owed on a delivery of furniture by the applicant Alex Ferzano against the respondent John Margins, both of whom were representing themselves. The member in charge of the hearing, specified that he wanted both parties to give their individual accounts of the dispute at hand, and what they wanted to gain out of it. At the same time, the presiding member also expressed that there would be an opportunity for either party to address any inconsistencies in either's recount of the facts. This approach was essentially an adversarial approach, as it allowed the individual parties to argue the issues in dispute, in front of some form of authority, who only intervened if fair process was not being followed, i.e. when the parties started interrupting each other on several occasions. Following the parties' arguments, the member, in consideration of what he had heard, gave a decision on the spot in favour of the applicant for the outstanding monies.
In the absence of alternatives to litigation such as VCAT, the applicant in such a scenario would be very limited in his options to seek recourse to the outstanding monies owed to him. Litigation would not be a viable option, particularly as the costs of doing so would outweigh the outstanding amount. Alternatively, seeking to bankrupt the respondent would not be overly beneficial to the applicant either, particularly given that the amount outstanding was minute. Whilst this VCAT civil hearing was not a court per se, it functioned in much the same way and was very adversarial in nature, where the member essentially took a passive role and allowed the two parties to 'battle it out'.
In the case of Fred & Vicki Karalis v Brian Jackson, a retail tenancy hearing, it was observed first hand how a hearing could be carried out via a combination of both an adversarial and inquisitorial approach. This case involved a series of complex facts regarding the non-payment of rent, in which the applicant Brian Jackson and his representative sought to evict and claim rent monies owning. However, the respondent's and their representative alleged that the applicant landlord did not fulfil various duties and hence withheld rent payments. The presiding member allowed for an adversarial approach to begin proceedings, by allowing each party to state their case against each other.
However, when the facts and evidence became increasingly complex, such that both parties began to confuse themselves, the member would intervene and adopt an inquisitorial approach, and seek to actively be involved in helping determining the facts. The member would ask questions of individual parties, in order to clarify the facts, not only for herself, but also for the other party. She would also seek to rephrase certain facts to the opposing party in order to assist their understanding of the nature of the issue at hand, particularly as the respondent party were migrants. Clearly the overriding object of the tribunal was to facilitate a settlement, which ultimately revolved around negotiation between the parties. This was particularly evident at one stage, when on a particular issue, the member even suggested whether mediation would be a likely avenue that they would explore as a form of alternative dispute resolution. However, in this case, the parties agreed that that would not be an option they would like to explore.
In the end, the member did facilitate a resolution, in which looked to ideally satisfy both parties. In a sense, not only did the case involve elements of an adversarial nature and an inquisitorial nature, but also elements of mediation where the member actively sought to facilitate settlement by suggesting other options and alternatives in accordance with the facts. Such a process can clearly be contrasted from that of adversarial litigation, where the main aim of such proceedings would be to seek judgement, rather than develop a settlement that is beneficial to all parties involved.
One further observation from attending several hearings, is that whether or not a hearing within VCAT is adversarial or inquisitorial in nature, entirely depends on the member and the dispute at hand rather than the individual facts being argued. In some hearings, the members took on a hard non-adversarial approach to resolving disputes, sometimes taking control of the proceedings when trivial issues were being argued amongst the parties. In one instance, in a civil claims case, whilst the applicant read out a list of costs they wished to be reimbursed for by the respondent, the member gave a 'yes, no, yes, no etc..' approach, without any justification as to why he denied the claim for particular costs. On the other hand, in a case that involved a dispute amongst parties to a will, a soft- adversarial approach was taken by the member to ensure that emphasis was on compromise, to allow all parties to benefit in resolving the dispute.
It should be therefore concluded that VCAT's establishment and purpose within the Victorian Justice System, that is, to provide Victorians with access to a civil justice system, which is modern, accessible, efficient and cost effective, is successfully achieved. In the absence of alternatives to litigation, applicants in small disputes would be severely limited in their options to seek justice or settle disputes with binding authority. Litigation, however common, is not always a viable option, particularly when the costs and efforts of doing so would outweigh the benefits derived from a successful judgement. VCAT provides the most appropriate alternative to litigation in such disputes in both an adversarial and non-adversarial manner, in conjunction with other ADR means.
Bibliography
A Sidney, 'Discussion Paper 62: Review of the Federal Civil Justice System' (1999) Australian Law Reform Commission
Glasser, C. 'Dispute Resolution: Civil Justice and its Alternatives' (1993) The Modern Law Review, Vol. 56, No. 3, p. 281
T. Thawley, 'Adversarial and inquisitorial procedures in the Administrative Appeals Tribunal' (1997) 4 Australian Journal of Administrative Law 61
A Sidney, 'Discussion Paper 62: Review of the Federal Civil Justice System' (1999) Australian Law Reform Commission
2 T. Thawley, 'Adversarial and inquisitorial procedures in the Administrative Appeals Tribunal' (1997) 4 Australian Journal of Administrative Law 61
3 Glasser, C. 'Dispute Resolution: Civil Justice and its Alternatives' (1993) The Modern Law Review, Vol. 56, No. 3, p. 281
LAW4225 Assignment 1 Robert Zhuang
18156428
