In a democracy, every citizen is supposed to have equal rights under the law. No person is above the law and justice is supposedly available to all through the courts. Unfortunately, this admirable principle falls by the wayside at the first hurdle.
The courts are not free. It is necessary to lodge fees before engaging in litigation and the wise will engage a lawyer skilled in the procedures to be followed. In fact, both sides usually hire lawyers and the ensuing court action then develops into a proxy fight in which the litigants sit back and let their legal representatives duel within the skills of their profession. It is a fact of life that those with the most advance skills usually win - and consequently they charge the highest fees for their services.
Winning or losing a case involves another " money aspect ". - the matter of " costs " ! The winner usually applies to the judging panel for the legal costs involved in winning the case to be paid by the losing party, and that can run into many thousands of dollars. Doing battle in court is not a matter to be taken lightly.
A case in it's preliminary stage in a Wollongong court is testing this " justice for all " scenario. A coal mining company has started using longwall mining equipment and a number of local citizens believes that the necessary approval for this type of equipment has not yet been granted. These citizens have joined together under a community name and propose to have the matter tested in court.
The mining company has applied to the court to have those involved in this action provide a surety of $ 40,000 in case they lose and costs are awarded against them. The citizen group say they can not raise this money and as a consequence - they have no option other than dropping the matter. They can not have their day in court - because justice is out of reach for them because of the money involved.
As usual, there are two sides to this coin. If the case was allowed to proceed and the citizens group lost, it seems improbable that they would be able to pay any court costs against them. If the case presented by the citizens group was so implausible as to be a diversionary tactic it could be considered a ploy to damage the mining company's operations and cause intentional financial loss. The court could be applauded for ensuring that obligations were mutually shared.
Supporters of equal rights would see it differently. A group of ordinary citizens being denied justice on purely financial grounds. A wealthy mining company that could afford to hire the best lawyers demanding up front money before the case could go to court. This would raise the question of involvement of " the public interest ".
This is the great levelling factor that comes into play whenever such a case is involved. If the issue raised by the citizens group strikes a chord with the public one of two things will happen. Either the public will get behind the group and make it a " public interest " case, funded by public donations, or apply political pressure to force the government to intervene and become involved - and pick up the tab for costs,
Either way, it requires a small public interest group to broaden the issue if it is to proceed further. This is a reasonable hedge against litigation forced on the court system by a small group of zealots who are way out of step with public opinion.
Our system of courts is far from perfect, but it acts as a filter to make sure that litigation is something carefully considered by both parties before they decide to proceed. For those involved, losing brings with it a severe financial risk !
No comments:
Post a Comment