The role of the judge in civil trials : a comparison of German and Australian processes

Gregory, Shannon Therese (2005). The role of the judge in civil trials : a comparison of German and Australian processes PhD Thesis, T. C. Beirne School of Law, The University of Queensland.

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Author Gregory, Shannon Therese
Thesis Title The role of the judge in civil trials : a comparison of German and Australian processes
School, Centre or Institute T. C. Beirne School of Law
Institution The University of Queensland
Publication date 2005
Thesis type PhD Thesis
Supervisor Prof Gabriel Moens
Total pages 390
Language eng
Subjects 18 Law and Legal Studies
Formatted abstract

This thesis undertakes a comparative evaluation of the trial judge's role in Germany's Landgericht (District Court) and the Federal Court of Australia with a view to possible reform of the Australian judicial process by adoption of advantageous aspects of the German model.        

Such comparison reveals a substantial degree of similarity and a trend of increasing similarity ('convergence') in many areas. However, it also reveals an important point of distinction, namely, that a German judge will begin his or her global analysis and evaluation of the issues, the evidence offered by the parties and the parties' legal and factual arguments from the outset of the litigation. This may be described by saying that the German judge begins judging the case from the outset. This 'early judging' is dependent upon another central characteristic of the German process model, namely, the early receipt of the material necessary for judgment. In contrast, Federal Court process is based on the traditional common law trial model with the judge sitting alone - which in turn mirrors the common law jury trial model - with the Individual Docket System of judicial case management superimposed on it. Resembling the traditional model in structure and sequence, the Federal Court process model remains characterised by late judging and associated late receipt of judgment material: the Federal Court judge only begins the global judging process during, or more typically, at the conclusion of the trial itself. While possessing extensive managerial and procedural powers, it can be seen that the Federal Court trial judge has difficulties exercising them effectively under the current late judging process model.      

The central contention of this thesis is that the Federal Court's adoption by adaptation of the German model of early judging and the associated early receipt of judgment material would increase procedural efficiency and improve substantive justice by enabling the Court to exercise its existing powers more effectively. It is further argued that this reform could occur without amendment to any statute or the Court's Rules; and would require only administrative changes in the conduct of each judge's docket to allow more reading time earlier in the proceeding, in conjunction with the resequencing of the submission of material necessary for judgment by directions made under existing managerial powers. Furthermore, there are no practical, cultural, systemic or constitutional impediments to its implementation.       

Chapter One discusses the apparent advantages of the German procedural system, including high public confidence, efficiency, low and predictable costs, and its highly evolved procedural jurisprudence; as well as the comparability of the German and Australian systems. It also explains the choice of Germany's Landgericht and Australia's Federal Court as exemplifiers and the standard of evaluation.      

For comparison to be meaningful, it is necessary to understand the constitutional systems, court structures and organisation of the judiciaries in which trial judges operate. Accordingly, Chapter Two undertakes these systemic comparisons, noting Australia's relatively smaller judiciary and detailing constitutional convergences, including those of judicial independence and impartiality, as well as implied mandates of procedural due process noting these operate in Australia as constitutional constraints on process reform.      

Chapter Three analyses the respective judicial roles, highlighting similarities, dissimilarities and convergences in the following areas:- 

• Use of the single and managerial trial judge. 

• Concentration of proceedings and use of pre-trial management hearings.

 • Regarding dispute-definition, party control of subject matter, but judicial extraction of issues from pleadings 'at large' versus production of issues by parties. 

• Clarification duty versus power.         

Chapter Four focuses the analysis on active judicial case management. Difficulties regarding the Australian judge's exercise of various powers are also highlighted.         

Drawing on these analyses, Chapter Five undertakes an analysis of the Landgericht and Federal Court process models, identifying early versus late judging (and associated early versus late receipt of judgment material) as a critical difference. It also analyses the raisons d'etre for the Federal Court process model, being its origins in the traditional common law and jury trial models.         

Chapter Six details the proposed reform and its expected benefits, and considers possible impediments. It argues that reform of the role of the Australian Federal Court trial judge by adoption through adaptation of the German model of early judging and associated early receipt of judgment material is both desirable and possible. It concludes that this is the next natural step in the evolution of judicial case management in the Australian system.     

Keyword Australia. Federal Court
Germany. Landgericht
Civil procedure -- Australia
Civil procedure -- Germany
Trial practice -- Australia
Trial practice -- Germany
Additional Notes Pages 173-200 are duplicated in the original thesis.

Document type: Thesis
Collection: UQ Theses (RHD) - UQ staff and students only
Citation counts: Google Scholar Search Google Scholar
Created: Wed, 10 Oct 2012, 13:31:21 EST by Eric Sun on behalf of Social Sciences and Humanities Library Service