Overcoming the Adversarial Bias in Tribunal Procedures
| Author | Joan Dwyer |
| Date | 01 June 1991 |
| DOI | 10.1177/0067205X9102000205 |
| Published date | 01 June 1991 |
| Subject Matter | Article |
252
Federal Law Review
OVERCOMING THE ADVERSARIAL BIAS IN
TRIBUNAL PROCEDURES
JOAN DWYER*
[VOLUME
2:
1
INTRODUCTION
Ihave had an interest in inquisitorial procedures and alack
of
conviction
~I
to the often claimed superiority
of
adversarial procedures as long as Ihave
hal
any interest in the law. Until recently however Ifound it difficult to engag:
other Australian lawyers in discussions which questioned whether the adversaffi
system is necessarily the best. It seems that
my
experience reflected the strengtl
of
the "Anglo-American legal culture".!
The decision
of
the Court
of
Appeal
of
New South Wales in Governmef
Insurance Office
of
New South Wales vGlasscock2demonstrates both th
traditional view that atrial should be adversarial and amore open approach tl
the question. One submission
of
counsel for the appellant was that the trial
hal
miscarried because
of
the extent
of
judicial intervention, which was summed u
by saying that the adversarial basis
of
the trial had been lost as aresult
of
tt
judge's intervention. It was submitted that the Judge had
taken control
of
the
plaintiffs
case [and] 'put words in the plaintiffs mouth'
8J11
by
asking leading questions
he
caused,
or
may have caused, evidence to 1
adduced from the
plaintiff
which, had the matter been left in the hands (
plaintiffs counsel, would not have been before it.3
Although dissenting from the Court's decision that the appeal should t
allowed because the judge's intervention caused the miscarriage
of
the trial
Mahoney JA acknowledged that one reason why excessive intervention by
Judge during the elucidation
of
evidence is undesirable
is
that it may change
tt
nature
of
the trial from adversarial to inquisitorial. His Honour then proceeded
.'
consider why that would be unfair.
What constitutes unfairness for this purpose will depend upon, or at least 1
affected by, the context
of
the proceeding. There may be adifference between
tJ'
fairness objectively
of
an
adversarial and an inquisitorial trial: it is
n.
necessary to determine that question. The purpose
of
each is to determine
tJ'
truth. No doubt the adversarial form
of
trial is adopted or maintained because it
believed that it best achieves that result. The reason why there is cogency in
~
2
3
BA, LLB. Senior Member
of
the Administrative Appeals Tribunal of the Commonwealth.
TI
views expressed in this paper are the personal views of the writer and are not given on heh,
of
the Tribunal. The paper is based
on
an
addressby the writer to aseminar conducted by
t1
Electoral and Administrative Review Commission
of
Queensland. The editing
of
this addre
was undertaken by Peter Bayne, of the Faculty of Law ANU.
Damaska writes: "In the Anglo-American legal culture the discussion
of
the two manners
proof taking [adversary and non-adversary] can easily be traced at least
as
far as Jeren
Bentham.
It
is rather difficult however
to
find proponents
of
the continental style
of
takil
evidence among English and American writers": MDamaska, "Presentation
of
Evidence
al
Fact Finding Precision" 123 Uni Pennsylvania LRev 1083, 1083. Three notable exceptio:
which Ihave found
of
great assistance are
Sir
Richard Eggleston, "What is Wrong with
tl
Adversary System" (1975) 49
AU
428; GOsborne, "Inquisitorial Procedure
in
tl
Administrative Appeals Tribunal - A Comparative Perspective" (1982)
13
F L Rev 150;
and
HLangbein "The Gennan Advantage in Civil Procedure" (1985) 52 Uni Chicago LRev
823~
(Court
of
Appeal
of
New South Wales,
19
February 1992, unreported).
Ibid 16.
J91]
Overcoming
the
Adversarial Bias
in
Tribunal
Procedures
253
Neil's complaint in this regard is
not
that questioning from the bench in asystem
of
law which adopts an inquisitorial form
of
trial is less apt
to
produce the truth.
The reason why it is felt unjust to take the matter out
of
the hands
of
the
advocates is essentially, Ithink, the expectation
of
the parties (emphasis added).4
lis
paper
accepts
that
adversarial
bias
creates problems which should
be
'ercome in certain circumstances, and makes recommendations to that end.
Damaska has referred to adversary and non-adversary presentations
of
evidence
"tools in the
quest
for the truth".
There
are
however
other
views. Justice
oynihan,
of
the Supreme Court
of
Queensland, has recently expressed "a degree
-scepticism towards definitions
of
atrial in terms
of
asearch for truth".
Such acharacterisation
of
the trial process ... carries with it, or so it seems
to
me,
implications
of
aresolution
of
what started
off
as
adispute between parties
or
dealing with aspecific criminal act in terms
of
an ideal and objectively
ascertainable truth the ascertainment
of
which, regardless of cost and time,
is
the
only means by which the differences between the parties can be resolved or the act
effectively dealt with from the point
of
view
of
the accused, victim and society. I
have my doubts about the prospects
of
such an outcome given human limitations
and the finite resources available to any legal system.
Amore realistic approach seems
to
me
to
be to regard atrial
as
asearch for the proof
of
those issues which divide the contenders
in
the litigation ....
It seems
to
me that amore efficient trial is the culmination
of
aprocess designed
to
bring about the resolution
of
differences justly and with the minimum necessary
commitment
of
resources on the part
of
the court system and
of
the parties.s
Ihave no difference with his Honour in so far as he suggests that differences
.tween the parties can
be
resolved without any
court
or
tribunal having to
.jectively ascertain the truth
of
the facts in dispute. Iagree that a
court
or
bunal
can
offer
processes
which
assist
in the parties in resolving their
"ferences in apractical and pragmatic manner. Where however amatter proceeds
ahearing
or
an arbitration, Iconsider that the
court
or
tribunal should, in
jer
to do justice between the parties,
see
the ascertainment
of
the truth as its
nin making findings on contested facts. Iendorse Eggleston's summary
of
his
lSons for advocating some departure from the traditional adversary system.
To sum up, if the proceedings were seen
as
an attempt by the court to get at the
truth, and the lawyers on each side were regarded
as
helping the court in its task,
instead
of
as
independent actors, not responsible
to
the court either for producing
the best evidence available, or for justifying any settlement reached, Ibelieve that
litigants would receive better service from the legal profession than they now get.6
In so far as Isuggest the use
of
inquisitorial procedures Ido
so
because I
lieve they will assist
in
achieving the aim
of
getting at the truth. Ireadily
ncede that whether the procedures are inquisitorial
or
adversarial we will not
vays succeed in finding the truth. Sometimes memories have faded so that the
th is not ascertainable, and sometimes despite all the best endeavours aparty
awitness succeeds in distorting
or
hiding some
part
of
the truth.
But
that is
tto say
that
the
quest
for truth should
be
abandoned.
Where
a
court
or
Junal is conscious that the evidence does not allow it to make findings
of
fact
th any conviction as to their truth Ithink it should first seek better evidence,
Ibid
17-18.
Mr Justice Moynihan, "Towards aMore Efficient Trial Process",
(a
paper delivered at
IAustralian Institute
of
Judicial Administration Tenth Annual Conference, September
1991
t
forthcoming in Australian Institute of Judicial Administration, Papers Presented at the Tenth
IAnnual
AIfA
Conference (1992)).
Eggleston, supra
nit
431.
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