The law - and our right of access !

We are very proud of our law system because it applies evenly to everyone.  Nobody is supposedly above the law and every citizen  has access to the courts to get justice.  A situation developing in Wollongong is putting that  supposition at risk.

A Green community group has launched a Land and Environment Court action against a local coal mining company.  The coal company has asked the court to require this litigant to provide a $ 75,000 surety in case they lose the action and costs are awarded against them.   The community group can not raise that $ 75,000 and there is a chance that as a consequence the action will not proceed.

This is where the complexity of the law comes into conflict with the reality of life.  On the one hand, access to the law process is supposed to apply to all, not just those who can afford to have a matter settled in court.  On the other hand, the law is supposed to protect against what some would call " vexatious litigants " who use the court process for spite and to cause delay and damage.   Costs awarded against them can not be recovered because of their inability to pay.

This particular case raises an interesting point.  If the litigant is unable to provide a $ 75,000 surety, it would seem unlikely that in the event of a loss and award of damages,  the coal company would be able to recover it's legal costs.  Yet if that becomes the basis for the action being dropped, it would seem to be a case of rich man versus poor man, with justice denied solely on the basis of money.

It seems that the court will be asked to consider the " public interest " aspect of this case - and once again this opens  an interesting can of worms.   What is " public interest " ?    Interesting to whom ?   And what parameters apply ?

Some people will contend that if a matter evokes sufficient public interest across the broad spectrum, it will result in donations to fund a court challenge or bring political pressure to have the politicians change the law. It seems impossible to satisfy everybody concerned because of the contrasting opinions involved.

Perhaps the best way to try to resolve these conflicts of interest would be to oblige both parties to attend a conciliation court.  All forms of legal representation would be barred and the deciding panel would be three citizens carefully selected from non legal sources.   The objective of this court would be to apply " common sense "  and achieve an amicable outcome.

Perhaps the most decisive weapon of a conciliation court would be publication of it's decision.  If consensus could not be reached because one of the parties was stubborn, legalistic and unwilling to compromise - at the least the matter would have achieve some resolve in " the court of public opinion " !