Recently, an issue arose that was a milestone in public affairs. It surfaced in a speech by Justice Ian Jackman, a Federal Court Judge, at a conference held by the Rule of Law Institute, a ginger group devoted to putting the spotlight on dispute resolution under the law, a vital part of our civilisation and society. When disputes arise between us, whether over family law, who should inherit grandpa’s fortune or which tribe is entitled to a newly discovered gas field, it is important that they be resolved promptly, as cheaply as possible and with finality, so that we can get on with our normal life. If disputes are not resolved in that manner, they will fester away, always end in unhappiness and sometimes in violence. It was the first of those requirements – resolving disputes promptly – that was the basis for the judge’s address. In particular, he drew attention to the long delays currently being experienced in the time taken to conclude court proceedings and in getting the judges up to the mark in making and releasing their decisions within some sort of a reasonable time-frame. His argument was that some judges – and apparently there are quite a few of them – have been dragging the chain on delivering their decisions, taking in many cases months and in some cases years to do so. Some judges whom he named have even been known to retire and swan off to the more benign world of life on a judicial pension, leaving unfinished or unannounced decisions behind them. Based on the known facts, the judge was correct in the substance of his criticism and it should be accepted as such.

It was courageous of Jackman to make this speech. I cannot imagine that things are very harmonious in the judicial tea rooms of the nation since he delivered it. But it was very important that the speech be made and it should galvanise our attention in the hope that something will be done about these disturbing delays, although those in authority have so far remained disturbingly quiet.

There are several reasons why it so significant that this speech was made. First, it is unusual for judges to make disparaging remarks about their current or former colleagues and there would be a fair amount of angst among them today that one of their number had broken a basic rule of the judicial club and exposed what is clearly a scandal. And yet, if it leads to any improvement, ruffling a few feathers will be a small price to pay for improving the system. Secondly, in every dispute there are individuals, whether people or companies who are frustrated by delays and cannot proceed with their lives and activities while they have hanging over their heads an unresolved case or an undelivered judgement. Thirdly, and as with everything else, shedding sunlight on the judicial process cannot help but improve it; judges should be told that they simply take too long. Indeed, there must be a system under which judges can be brought to account for inordinate delays, even if it means naming and shaming them before a judicial commission; after all, other public office-holders are subject to scrutiny and there is no reason why judges should be treated differently. Who knows; if we get the law back to reality and discipline into the judicial conduct, we might even encourage the High Court to stop looking for implied terms in the Constitution.

But if I had a criticism of the speech, it is that it did not go far enough. Delayed judgments are a serious problem, but there is even a worse one and it is that the law itself is too cumbersome and slow. After working within it for many years, I have come to the conclusion that the law is a ritual, and more for the benefit of the legal profession, who have a monopoly over dispute resolution, than for the swift resolution of disputes. The system is such that there are now seemingly endless procedures to be taken before a dispute gets anywhere near a court or tribunal. You would think that the procedure would be directed to getting the dispute at least to a point where the issues are clear and there is a simple issue to be resolved. But this is not so. When Charles Dickens told the story of Jarndyce v. Jarndyce in Bleak House, he described the labyrinthine litigation over a deceased estate and it was not pure fiction; the case ground to a halt when the legal costs exhausted the entire estate. It would be worse, and slower, today.

There should therefore be a wholesale reform of the law as it impinges on disputes. To give it a practical form, the federal Coalition is looking for issues and policies to capture attention and to show that they have a contemporary position on issues of importance; what better one could they advance than a system under which disputes are clarified and resolved promptly. You might say this is impractical and overly optimistic, especially as the opposition will come from lawyers who have a vested interest in keeping things as they are and generating more delays for which they charge fees and from which only they can benefit. But there are more non-lawyers than lawyers and the community, especially the business community, would welcome this reform. And there is already a good practical system on which the changes I am advocating can be based. I work in the arbitration of internet domain name disputes where only a few pages in plain language are allowed to set out the claim and the same for the defence; there are no hearings, we have 14 days to deliver our decision, there are no appeals and the results are well received and accepted. It sounds like Nirvana, but it can be done.

We owe a debt of thanks to the Rule of Law Institute for putting the spotlight on the law’s delay, and in the national interest we should take up the challenge.