Page 3564 - Week 12 - Thursday, 20 September 1990
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Appeals Tribunal be carried out by an administrative division of the lower court - and I stress that; he did not propose that it be abolished. Mr Curtis suggests introducing flexibility by allowing the administrative division to undertake judicial review of decisions which it may review on the merits and by conferring a merits review jurisdiction on the Supreme Court where the type of matter justifies this approach.
Appropriately qualified non-judicial members would be appointed, in Mr Curtis' view, to the administrative division. I am pleased to see that Mr Curtis proposes that the preliminary conference procedure, which has worked very well in the Administrative Appeals Tribunal - as members here would be aware - should be a feature of the proposed administrative division.
With regard to the Credit Tribunal, Mr Curtis feels that it is quite appropriate that the judicial functions of the Credit Tribunal should be amalgamated in the lower court, while the licensing and inquiry functions could remain with a specialist tribunal. This question is bound up with the overall question of how the courts can best deal with commercial litigation.
This discussion is not concerned only with what is usually regarded as the conventional role of courts. Mr Curtis draws attention to the need for suitable procedures applicable to commercial arbitration and alternative dispute resolution. The discussion paper notes that in other jurisdictions only about 5 to 10 per cent of cases filed reach a contested hearing. I think that there is a real need to examine the raison d'etre of courts in that the real need is to resolve rather than litigate issues. The court would still have the power to enforce decisions by legal process, whether the dispute was determined by the court or settled independently by the parties.
The sheer cost to all concerned of contested legal proceedings makes it essential that procedures be introduced involving the court itself in the process of encouraging and facilitating the settlement of disputes, rather than leaving all such responsibility with the parties themselves. It is important to ensure that the court staff involved in this process are properly trained in order that the process of achieving consensual resolution or a negotiated settlement is fair to all concerned.
I note that Mr Curtis has recommended that the whole question of professional costs allowable in different jurisdictions should be examined. This issue of scales of costs is a particularly technical and complex one and I note Mr Curtis' conclusion that the scales of costs be made by the single rule making body, which he suggests should make rules for both the Supreme and Magistrates courts.
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