Dimensions of justice
• The justness of a system of procedure depends on whether we can be reasonably confident in its ability to produce “correct” results in which the truth is ascertained. A system of procedure should also not compromise legal equality by imposing higher risks of error on one class of litigants. • Excessive delay and excessive haste may both compromise the rectitude of a decision. Delay in the execution of justice carries the additional harm of eroding the utility of a judgment. • The allocation of resources to the legal system should be determined by balancing the need for a reasonable measure of protection of rights against consideration of the scarcity of resources that the community has its disposal. • Costs of litigation affect access to justice, potentially in ways that discriminate against those of fewer means. • The systems of procedure that each country adopts, with their various strengths and weaknesses, reflect values, preferences and priorities over the different dimensions of justice. • Across the UK, US and Australia, the costs associated with litigation tend to be exceedingly high, fuelled by procedural incentives; often, the costs are disproportionate to the amount at stake in a particular case and beyond the financial means of most citizens.
• An adversarial system is one in which “the parties, and not the judge, have the primary responsibility for defining the issues in dispute and carrying the dispute forward” (ALRC). • The adversarial system can be criticised on several grounds, including that: (a) it is essentially confrontational and antagonistic; (b) it promotes the interests of the parties over the desire to find the truth; (c) party control means that trials are prolonged without regard to public resources; (d) it exaggerates resource imbalances between parties by favouring “repeat players”; (e) it encourages a narrow focus on the parties to the dispute instead of...
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