Juliette Brodsky

With the advent of technology over the years, what has the impact been do you believe on the practice of law these days? Has it improved matters or has it made in some ways the practice of law less affordable, less accessible perhaps?

Clive Tadgell

For those of us who had a library, it’s depreciated its value.

JD Phillips

Well, it multiplied the amount of paper you’ve got to start with, that’s what’s really gone wrong. They go in now with trolleys of books. How do you get through a trolley of books in a (court) case?

James Merralls

There is a certain amount of – if I can speak as somebody who’s still at the Bar – of mindless preparation where documents are copied just for the sake of copying in case they’re required. As John said, they’re taken in trolleys to court and sometimes you have a wall lined with ring folders of documents that are never looked at.

Bill Ormiston

It’s hard to estimate for those who went to the bench in the 80s what the changes have been so far as practice is concerned. I would say it’s made a difference in practical terms for judges too, the increase in volume of materials, because one was fairly cautious about what one put in appeal books and those things like that in the old days and it was expensive to prepare. In many ways, it’s made things easier - there’s no doubt about that.

Clive Tadgell

It’s increased the cost enormously.

John Batt

The directions to put in submissions which all the courts have made have meant, I think, and seeing it close-hand, that juniors spend much more time now in chambers than we would have. We’d be in court more often. These submissions are of course helpful for the judges, but a lot of time is spent in writing. I do think it’s made – overall - the submissions more exact – I’m not speaking of the leaders of the Bar when we came to the Bar, but I think there was quite a bit of preparation of argument while one was on one’s feet in the early days. Now if you’ve got to have written submissions …

James Merralls

It concentrates the mind.

John Batt

Yes, yes.

JD Phillips

But it adds to the cost enormously and the cost of the law is just breaking it. That’s why mediation’s taken off because it at least cuts the cost.

John Batt

There was none of it when I was at the Bar as far as I know.

Bill Ormiston

I know why it took off, at least I believe I know, and it was in the early 90s just at the start of the depression there – I call it depression, some might not. The fact was that nobody could really afford to fight the litigation which had been commenced, a lot of which was commenced by banks and the result was that people actually wanted to settle cases at that time. Just as it happened we thought we had too many cases in the Supreme Court list, so we worked out what was called the Spring Offensive – I think that came before the Autumn Offensive, but I might be wrong in my order of these things. One of the things which was thought up was that we’d try and get rid of the cases which would be settled as soon as possible and the only way we could do this was by using this newfangled thing from elsewhere, I don’t think it was used much in Australia, called mediation and each of the cases then was sent off to mediation first and it turned out to be a great success, largely because nobody had the money to fight the cases, so they wanted to settle. There was a big percentage of cases settled at that time. I rather think if it had been introduced at some other time it may not have been seen to be so successful. But it did work in a way at that time, and then it sort of stuck in the system ever since. But Jim ought to give his impression as a barrister of how that worked.

James Merralls

How mediation works? I’m the last person to ask. Most of the mediations I’ve been involved in have been disastrous, they haven’t led to anything. In fact the only … I don’t like them and I don’t do them, because I don’t do a great deal of commercial litigation where they’re popular. The cases that I’ve been involved in really haven’t been suited for mediation for various reasons that I don’t think I shall give. The one that I did that led to a settlement also led to the settlement becoming unstuck and everybody involved in the mediation except for myself and my junior was later sued, including the mediator. (Laughter)