Denial of Justice
In recent years, there have been a number of strong and sustained criticisms of the civil justice system in Australia.
“Justice delayed is justice denied”
In civil litigation, delay is linked to the perceptions of fairness and relevance of courts. The principal driving force for case management was the acceptance and recognition that there was too much delay in the civil justice system. Unacceptable delay is the time beyond that which is reasonably required for the fair and just determination of the case
Delay will impede the proper disposition of any case that does not come to trial promptly. The case takes longer to prepare and to try ...view middle of the document...
However, this is not always the case for all the litigants . Often, this results in two area of dispute: the extent of legal aid funding available and the complexity of the legal system. Unfortunately, no great increases in legal aid have been forthcoming from government, nor is greater funding likely in the foreseeable future. The more common result is attempts to simply court procedures and provide informal tribunals.
Causes of denial to Justice
The issue of cost permeates the whole of the administration of civil justice. It affects access to justice because costs can place the courts beyond the reach of those who cannot afford. There has been increasingly need for a simpler, cheaper and more accessible legal system. Cost of litigation has been a major problem for poor people to gain access to litigation. Litigation in courts is so expensive that most people cannot afford it. Potential applicants may be unable to commence an action or proceed with a claim. Respondents may be unable to defend a claim with legal representation or defend the claim at all.
Furthermore, the costs incurred in litigation can be disproportionate the the amount at stake or the complexity of the issues involved. The uncertainty arising from the amount of cost will result in the parties having difficulty in predicting their ultimate financial position resulting many litigants in not being able to meet the security for costs imposed by courts. This leads in dismissal or stay of proceeding whereby justice cannot be upheld for these litigants.
The most common criticism of witness statements is their cost. While the court may save time and money, the additional cost of preparing witness statement falls on clients. The timing of costs is also altered because witness statements need to be drafted well before the trial. This front end loading of costs may have an impact on the willingness of litigants to pursue their cases in the civil litigation system.
Expert witnesses are used to give evidence in cases where a specialist opinion is required on an issue before the court. Criticism of the use of expert witness focuses on the costs of experts and the difficult in ensuring that expert evidence is independent given the tendency for parties to “shop” for the expert that will best support their case. The need to consult and obtain evidence from experts may also be a component of delay in litigation which is translated into denial of justice.
Complexity of interlocutory proceedings
The various level of technicality, formality and complexity of the interlocutory proceedings have create barriers to access to justice. For many litigants, subjective factors associated with the way they perceive or experience the justice system are key barriers to access to justice.
The degree of complexity in the adversarial litigation can result in denial of justice. The discovery process is...