Justice and efficiency in mega-litigation.

Abstract

This thesis asks how Australian judges reconcile the demands of efficiency and justice in extremely long-running, complex civil litigation – sometimes known as ‘mega-litigation’. The thesis combines doctrinal and theoretical analysis with qualitative research based on a series of interviews with judges who have presided over mega-litigation. Mega-litigation places enormous burdens on the justice system, requiring large amounts of court resources to be devoted to a small number of cases. A central theme of the thesis is the need for civil procedure to be directed to multiple aims: efficiency as well as justice, and the interests of the public as well as those of the parties to litigation. It is therefore crucial for courts, when managing mega-litigation, to seek to improve efficiency and to have regard to the interests of the public. At times, there will be tension between these objectives and the objective of doing justice between the parties to the case. This thesis examines the ways in which the challenge of reconciling justice and efficiency in civil procedure has been approached by scholars and courts. Against this background, qualitative interview data is used to examine how judges approach this challenge in mega-litigation. Ultimately, the thesis identifies three ways in which judges reconcile justice and efficiency in mega-litigation: first, by seeking innovative ways to improve efficiency without compromising justice; secondly, by taking control of the litigation from the parties and ensuring that there is a sharp focus on the real issues in dispute; and thirdly, by relying on highly informed expert intuition. All three conclusions rely heavily on the skill, personality and background of the individual judge.