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2001
Some desirable features of lower court systems to verify and enforce civil
Some desirable features of lower court systems to verify and enforce civil
obligations
obligations
Andrew James Cannon University of Wollongong
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Recommended Citation Recommended Citation
Cannon, Andrew James, Some desirable features of lower court systems to verify and enforce civil obligations, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, 2001.
https://ro.uow.edu.au/theses/1860
SOME DESIRABLE FEATURES OF LOWER COURT SYSTEMS
TO VERIFY AND ENFORCE CIVIL OBLIGATIONS
A thesis submitted in fulfillment of
the requirements for the award of the degree
DOCTOR OF PHILOSOPHY
from the
UNIVERSITY OF WOLLONGONG
by
ANDREW JAMES CANNON BA LL.M (Honours)
Faculty of Law
CONTENTS
Page No.
TABLE OF TABLES, PICTURES AND FIGURES viii
ACKNOWLEDGMENTS xi
SUMMARY AND CERTIFICATE xiii
CHAPTER 1: INTRODUCTION 1
CHAPTER 2: THE MAGISTRATES COURT IN SOUTH AUSTRALIA
AND COMPARATIVE DATA 6
The South Australian Magistrates Court 8 Policy issues for the Magistrates Court 13
Uncontested debt 13 Management of contested cases 14
The German court system 16 The role of the judge 17 Judicial appointment 20
The cost scale and insurance 20 The jurisdiction of courts 20 Collection proceedings (mahnverfahren) ^. 23
The procedure for contested claims 24 Management of the progress of proceedings 25
11
CHAPTER 3: THE ROLE OF LOWER COURTS 33
Classification of ADR 36
Negotiation 36 Third party interventions 36
ADR organisations 37 Australian Banking Industry Ombudsman 38
Complaints Resolution Scheme of the Financial Planning Association
of Australia Limited 39 Insurance Brokers Dispute Facility (General Insurance) 39
Life Insurance Complaints Service Limited 39 Insurance Brokers Dispute Facility (Life Insurance) 39
Credit Union Dispute Reference Centre 39
Energy Ombudsman 39 Credit Union Electronic Funds Transfer Arbitrator 39
Domestic Building 40 Motor Traders Association 40
The Private Health Insurance Complaints Commissioner 40
The Travel Compensation Fund 40 General Insurance Inquiries and Complaints Scheme/Claims Review Panel 40
The Superannuation Complaints Tribunal 40 The Telecommunications Industry Ombudsman 41
The extent of use of ADR 41 The Commonwealth Banking Ombudsman (endnote 4) 44
Administrative Establishment 45
Procedure 45 Nature of Hearing 46
Security of Tenure 47
Fees 48 The Housing Industry Association Arbitration Scheme (endnote 5) 48
Contrasts between courts and ADR schemes using adjudication 49
Ill
The defining features of a lower court 53 The relationship between courts and ADR outside the courts 54
Summary of conclusions 59 ENDNOTES (1) 61 (2) 61 (3) 61 (4) 63 (5) 63 (6) 64 (7) 65 (8) 65 BIBLIOGRAPHY 68
CHAPTER 4: VERIFYING DEBT AND ENFORCING JUDGMENTS 70
Introduction 70 The needs of creditors and debtors 76
Verifying debt 78 Enforcing judgments 86
Methods of enforcement 86 Imprisonment of debtors 88 Enforcement against chronic debtors 90
The Enforcement of Judgments Office 92
Priority 96 Creditworthiness as a sanction 99
Issues to assist debtors 102 Summary of conclusions 103
IV
CHAPTER 5: EFFECTIVE FACT FINDING 110
Fact finding in the South Australian Magistrates Court 111 Procedure and fact finding under the German Civil code 115
Pleadings 116 Case management and pretrial discovery 119
The trial 122
Similarities and differences between the common law and German civil
code methods 127 Examples of the use and abuse of the common law factfinding method 130
The abuse of interrogatories 137 Court management of fact finding 145
Court use of experts 154 Precedents in Australia 154 The practice in Germany 159 Court appointed experts in the South Australian Magistrates Court 161
Issues in the Court use of Experts 163
Choice of Experts 163 Training and instruction of experts 165
The role of the expert at the commencement of the proceedings 165
Expert conferences 168 Experts sitting with the court 169
Court experts' reports as evidence 170
Savings of judicial time 172 The resource implications of the exercise of judicial control over the
gathering and presentation of evidence 174
Summary of Conclusions 181 ENDNOTES
CHAPTER 6: THE USE OF ADR BY THE LOWER COURTS 189
What are the dangers of courts using ADR? 189 Types of court ADR in the South Australian Magistrates Court 201
Prelodgement notice of personal injury claims 204
Court expert appraisal 206 Party involvement and mediation 207
Party interviews 211 Mediation by magistrates 214 Discussion 219 Summary of conclusions 221 ENDNOTES (1) 223 (2) 228 (3) 228 BIBLIOGRAPHY 231
CHAPTER 7: DESIGNING COST POLICIES TO PROVIDE
SUFFICIENT ACCESS TO LOWER COURTS 233
Introduction 233 An economic analysis of the effect of costs on court usage 234
The effect of full cost shifting 236 The effect of partial cost shifting 238 The effects of different methods of calculating cost shifting 241
Whether it is desirable to have cost shifting 241
The effect of activity based scales 243 The German cost scale (the BRAGO) 247
Northern Ireland 252 The South Australian Magistrates Court 254
Conclusions 255 Sharing cost risks by insurance 256
Legal cost insurance effects on access to courts 260
VI
European type legal cost insurance 262 The effect of contingency and conditional fees and A EI insurance 265
Rationing access to courts by costs 270
Summary of conclusions 276 ENDNOTES (1) 279 (2) 279 (3) 283 (4) 283 (5) 284 (6) 285 (7) 286 BIBLIOGRAPHY 287
CHAPTER 8: SOME DESIRABLE FEATURES OF LOWER COURT
SYSTEMS TO VERIFY AND ENFORCE CIVIL OBLIGATIONS 289
The role of lower courts 289 Verifying debt and enforcing judgments 290
Verifying debt 290 Enforcement 291 Effective fact finding 293
The use of ADR by lower courts 295 Designing cost policies to provide sufficient access to lower courts 296
TABLE OF APPENDICES 300
APPENDIX 2.A: Stuttgart statistics 1997-Amtsgericht 301 APPENDIX 3.A: Mediation: an outlook on the conduct of mediation within
VI1
APPENDIX 4.B: Evaluation of the effectiveness of the debt recovery
process in the Magistrates Court 319 APPENDIX 4.C: The Enforcement of Judgments Office 332 APPENDIX 4.D: Enforceable Payment Agreement 335
APPENDIX 5.A: German claim form 336 APPENDIX 5.B: CASE STUDY: Amtsgericht, Stuttgart, Germany,
Aprill999 338 APPENDIX 5.C: Interrogatories and answers 344
APPENDIX 5.D: Form No 22 352 APPENDIX 6.A:. CASE STUDY 2: Landgericht, Stuttgart, Germany,
April 1999 358 APPENDIX 6.B: An evaluation of a mediation trial in the Adelaide
Magistrates Court 362 APPENDIX 7.A: German court fees and the BRAGO 413
APPENDIX 7.B: Northern Ireland cost scales 415 APPENDIX 7.C: Cost scales and cost rules Magistrates
Civil Rules 1992 420 APPENDIX 7.D: French legal cost insurance contract 437
V l l l
TABLE OF TABLES, PICTURES AND FIGURES
Page No.
Table 2.1: Courts and Tribunals in South Australia, December 1998 7 Table 2.2: Magistrates Court civil jurisdiction and average annual earnings 9
Table 2.3: Personal Injury claims in courts in South Australia 12
Table 2.4: Case loads of state courts in South Australia 13
Table 2.5: Jurisdiction of German courts 21 Table 2.6: Revenue, claims handled and external costs of legal cost
insurance schemes 1989 29 Table 2.7: Judges, lawyers and claims filed per 100,000 population
in The Netherlands, West Germany and South Australia 29 Table 3.1: Case loads of state courts in South Australia, variation on Table 2.4 35
Table 3.2: Mediations conducted outside the court system in SA 42 Table 3.3: Dispute resolution- ADR compared to Magistrates Court SA 1998 43
Table 3.4: Contrasts between advisory ADR and court adjudication 43 Table 3.5: Contrasts between the Banking Ombudsman and court adjudication ....50
Table 4.1: Uncontested claims compared to contested claims 79 Table 4.2: Debtors summonsed to the Adelaide Magistrates Court civil
registry on 8 August 1999 analysed by age and reduction of debt 90
Table 4.3: Lawyer costs and court fees in enforcing a claim 91 Photo 5.1: Richter Utz with expert in the Amtsgericht, Stuttgart 123 Photo 5.2: Einzel Richter Barth with plaintiff and defence lawyers
in the Landgericht Stuttgart 123 Table 5.3: Use of Building Expert 1/98- 2/99 Adelaide Magistrates Court Civil 162
Table 5.4: Use of Accounting Expert 7/97-12/98 Adelaide Magistrates
Court Civil 163 Table 5.5: Courts and Tribunals in SA December 1998, repeat of 2.1 176
Table 5.6: Judges, Lawyers and Claims filed per 100,000 population in The Netherlands, West Germany and South Australia,
IX
Table 6.2: Users of court trials in 3 months- Adelaide Registry, small claims 202
Table 6.3:Casualty accidents and claims against SGIC 1987-1995 205 Table 6.4: Use of Building Experts 1/98- 2/99 Adelaide Magistrates
Court Civil (repeat of table 5.3) 206 Table 6.5: Use of Accounting Expert 1/98- 2/99 Adelaide Magistrates
Court Civil (repeat of table 5.4) 206 Table 6.6: Point of case disposal and delay, general claims, Adelaide Civil
Registry 1992 and 1996 209 Table 6.7: Delay between filing defence and finalisation 209
Table 6.8: Litigants' level of satisfaction with case outcome according
to the mode of finalisation 212 Table 6.9: Litigants' level of satisfaction with the time taken to settle
their matter according to the mode of finalisation 212 Table 6:10: Whether or not respondents believed that they saved
money by settling at the directions hearing or by mediation 212 Table 6.11: Litigants' level of satisfaction with the opportunity provided
to present their side of the dispute according to settlement method 213 Figure 7.1: Expected result according to quality of evidence, costs ignored 235 Figure 7.2: Expected result according to quality of evidence with 1/3
cost shifting which equals actual costs 236 Figure 7.3: Expected result according to quality of evidence with
1/10 cost shifting which equals actual costs 237 Figure 7.4: Expected result according to quality of evidence with improved
fact finding- still 1/3 cost shifting which equals actual costs 238 Figure 7.5: Expected result according to quality of evidence with
partial cost shifting (1/3 shifting, Vi actual costs) 239 Figure 7.6: Expected result according to quality of evidence with
1/3 cost shifting which equals actual costs for D- no cost risk for P 240
Table 7.7: BRAGO cost and court fee calculation 248 Table 7.8: Judges, Lawyers and Claims filed per 100,000 population
in The Netherlands, West Germany and South Australia
Table 7.9: Revenue, claims handled and external costs of legal
cost insurance schemes (1989) (repeat of table 2.6) 250 Table 7.10: Delay in weeks between issue and disposal in
XI
ACKNOWLEDGMENTS
1 thank my wife Jan and our two daughters Alissa and Eleanor for their patient
support throughout this endeavour.
At the court policy unit within the law school at Wollongong University, the late Lindsay Curtis, Professor Helen Gamble and Dr. Rick Mohr have been unfailingly rigorous and helpful.
I thank Professor Erhard Blankenburg, Vrije University, Amsterdam, for the notion, that is so confronting to a common law lawyer, that courts can be too efficient. This led me to ponder the relationship of courts to other means of resolving disputes and of how to achieve the desirable balance between the two. It also led my family and 1 on a wonderful study tour in Europe for me to personally investigate these matters. 1 thank Annette Marfording, University of NSW, Adrian Zuckerman, Oxford University, Andrew Ligertwood, Adelaide University and Professor Dr Jochen Taupitz, University of Mannheim for giving me the names of people to contact.
In Miinchen Professor Dr. Peter Schlosser, University of Miinchen gave me his time and arranged an interview with Richter Dr. Heinz Viller. In Stuttgart, Richter Dieter Czerny gave me his time and arranged for me to watch court hearings conducted by Richter Utz and Richter Julius Barth. Richters Hagedom and Nietzer interpreted. Ulrich Marfording gave me the perspective of a private practitioner.
Professor Dr. Peter Gottwald, University of Regensburg gave me much of his time and has been very helpful in continuing correspondence.
Xll
Thanks to Professor Erhard Blankenburg again for giving his time and showing me examples of kort geding, other court proceedings and the legal aid office in Amsterdam.
In Belfast District Judge Andrew Wells was most hospitable and organised a full round of meetings, in order of occurrence, with Audrey King, Status Listing Manager, Justice Tony Hart, the Recorder, Justice Richie, Master Napier, judicial head of the Enforcement of Judgments Office, Chris Heatley CEO and his deputy Harry Stewart, of the Enforcement of Judgments Office, D. Capper and Professor Desmond Greer of Queens University and the Right Honourable Lord Justice Campbell, chairman of the Civil Justice Reform Group.
In Paris Antoine Garapon, Secretaire General, Institut des Hautes Etudes sur la Justice, Ecole nationale de la magistrature first invited me to a conference he had organised for a group of American judges, and also arranged interviews with Agnes Lalardrin, Court of Human Rights at Strasbourg, Pierre Kramer, Substitut General,
th
Mme. Madeleine Huberty, Magistrate 17 Arrondissement and Messieur Aymar Alloy, retired Advocat General for Paris, who allowed me to watch him mediating minor criminal cases.
Each of these gave me access to a considerable fund of knowledge and wisdom.
Thanks to Rosemary Hocking and the staff at the Sir Samuel Way library for tracking down obscure texts for me. Jan my wife assisted for many hours typing, proof reading and collating. Thanks to Daphne King and more recently Lesley Giles for typing and other assistance.
My colleague Garry Hiskey SM has been a great support and sounding board. The retired Chief Magistrate of South Australia, James Cramond and his successor Alan Moss have been very supportive.
xiu
SUMMARY AND CERTIFICATE
Lower court systems to enforce civil obligations are complex and their operation is intertwined with other dispute resolution systems in the community. This inter-relationship must be understood to ascertain the role of lower courts. In this thesis I start with that and from that base I deduce desirable features to properly perform the role. This includes systems for debt collecting, fact finding and assisting settlements. The cost of access to lower courts is a primary factor in determining the level of use of them and how they are used. I conclude what are appropriate cost policies to ensure the system operates in a desirable way.
I have used the court in which I work as a primary place of research but I have also used comparative studies of the Dutch, German and Northern Irish courts to inform this topic. The civil code approach to fact finding and assisting settlements has much to offer common law countries. Readers from those countries may find the explanation and conclusions on these aspects to some extent the statement of the obvious.
In looking at the whole system by necessity I am covering a broad range of topics, each of which could be teased out in greater detail. I hope the reader will find my discussion sufficient for my purpose of identifying desirable features of lower court systems that take into account their inter relationship. To make my conclusions manageable I have summarised them at the end of each chapter and have repeated those summaries, with some overarching conclusions in the last chapter.
