LAWS4001 Lecture Notes - Lecture 2: Australian National University, Adversarial System, Avocation
Week 1 - MLKJ Analysis on justice
Good, moral and just lawyers
Have a call to act not merely as the mouthpiece for our clients. We are part of the
administration of justice, a larger responsibility that is accompanied by ethical duties we
must abide and fearlessly uphold in our avocation for our clients.
We are called to speak candidly and not to mislead the court as our primary duty. The
purpose of law in our society can be analysed from a teleological perspective, which gives
society the ability to criticize the law when it is unjust and not willfully accept the
sovereign that enforces it
A lawyer’s place in society should go hand in hand with the function of law as an
instrument of justice. However, the concept of justice has many sources of meaning and
context, including procedural, substantive, virtuous and philosophical.
For our purposes, two key themes dominate Martin Luther King’s letter from Birmingham jail –
justice in accordance with law and its timing as a critical factor in its application.
These will be discussed below. Similarly, these are principals of case management that
govern our judicial system. The Courts balance the dictates of justice (allowing parties to
make amendments etc) against the need to keep proportionate costs and eliminate
delay. r 2.1 of UCPR states that the court may give directions and make such orders for
the conduct of any proceedings as appear convenient for the just, quick and cheap
disposal of the proceedings. This is a direct application of the overriding purpose in s 56
CPA in resolving the real issues in the proceedings. (s57, & s58 – it is the courts
obligation to manage procedure). Lord Woolf’s 1960 recommendations shifted the
responsibility from lawyers to judges in the court proceedings process to ensure parties
are prepared for hearing in the proper way. This is an application of the principal of doing
justice according to law, as the process of case management moved towards a consistent
and fair system that facilitates a civil society. In turn we have moved away from a ‘pure’
adversarial system. It is critical to remember that in delivering substantive justice, if the
process is flawed, the chances of achieving substantive justice that is fair is reduced.
The development of the common law in Australia began with Sali (1993) whereby the HCA
refused to grant leave to extend a timetable. The principal that arose from this was “in
determining whether to grant an adjournment, the judge of a busy court is entitled to consider the
effect of an adjournment on court resources, the competing claims by litigants in other cases
awaiting hearing in the court as well as interests of other parties.”
However, in QLD v JL Holdings (1997) where it was held that any such prejudice
arising from a delay can be dealt with by way of costs and subsequently the leave was
granted. It was said that doing justice between the parties was more important than
procedural fairness and case management
This case was soon overturned in 2009 in Aon Risk Services v Australian National
University. It was held that it was not true that prejudice to the other party due to a delay
could be dealt with by was of costs.
This was an application of the legislation change in 2005 of the just, quick and cheap
resolution of issues. It is the duty of the parties and their lawyers to assist the court in
furthering the overriding purpose.
Case management originated in America in the 1960s.
Martin Luther King Junior (MLKJ) was a hugely influential advocator against the
segregation of black people at that time, and fought for equal rights amongst all
Americans.
It is important to note that MLKJ, in his letter from Birmingham jail refers to the virtue
of justice, apposed to justice according to law, which is what is discussed above. “We
must come to see that human progress never rolls in on wheels of inevitability. It comes
through the tireless efforts and persistent work of men willing to be coworkers with God,
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