Australian Treasury Review
E-commerce Best Practice Model
Submission: Evan Whitton 14/26 Cook Street, Glebe 2037. 02 9566 4121
email@example.com 20 December 2003
This submission deals with certain aspects of E-commerce relating to justice. It relies
on judges and lawyers to show that the lawyer-run adversary system does not seek the
truth, and hence is not fair, just, or moral. It will suggest that best practice is to keep
lawyers out of E-commerce disputes, and that such disputes be resolved by a tribunal
run on investigative rather than adversarial lines.
Lack of Public Confidence in the Adversary System
The public have a vague feeling that something is wrong with the legal system, a
feeling quantified by market researcher Quantum’s 2003 Australia Scan survey. Of
2000 questioned on institutions in which they had great confidence, 15% said they
had great confidence in judges.
Public disquiet stems from confusion. Members of the public wrongly believe that the
system is run by judges and that it tries to find the truth, and are baffled when legal
outcomes seem contrary to justice, truth, fairness, and common sense.
Lawyers and the Adversary System
Charles P. Curtis wrote inThe Ethics of Advocacy (1951): ‘ … one of the functions of
a lawyer is to lie for his client … He is required to make statements as well as
arguments which he does not believe in.’
Harvard Ethics Professor Arthur Applbaum says lawyers may accurately be described
as serial liars because they persistently try to persuade others to believe things the
lawyer believe to be false.
Law professor Murray L. Schwartz examined adversarial ethics inThe Professionalism and Accountability of Lawyers (California Law Review, 1978). He
wrote: ‘When acting as an advocate for a client, a lawyer … is neither legally,
professionally, nor morally accountable for the means used or the ends achieved … It
might be argued that the law cannot convert an immoral act into a moral one … by
simple fiat. Or more fundamentally, the lawyer’s non-accountability might be illusory
if it depends upon the morality of the adversary system, and if that system is immoral
… the justification for the … Principle of Nonaccountability … would disappear.’
Nonetheless, lawyers are allowed to control the adversary process. An untrained judge
controls the court room, but lawyers gather and present ‘facts’, decide who will give
evidence, what they will say, and how long the process will last.
InOvercoming Law (Harvard, 1995), Chief Judge Richard Posner described
‘adversarial procedure’ as ‘contests of liars’. Geoffrey Robertson QC said the
adversary system makes justice a game.
Justice - First Principles
In a 1971 dismissal case, Commissioner Gilbert Manuel, of the NSW Conciliation
Commission, propounded an all-purpose test for justice: ‘a fair go all round’.
In 1960, Lord Chancellor Kilmuir claimed that the common law ‘puts justice before
truth’. The Hon Russell Fox AC QC responded to that assertion inJustice in the 21st
Century(Cavendish 2000). He wrote:
‘This statement in fact begs the present question by saying that justice is what the
parties [i.e. lawyers] present in evidence, true or not. On the other hand, there must be
a standard, and the public estimate must be correct, that justice marches with the truth.
Only in this way does the concept present a moral face, as distinct from one where the
winner is the person with the greatest resources and best advocacy.
‘This is the view taken on the continent and in other countries, where the whole
system of justice proceeds on the footing that the truth is to be ascertained. Hence the
investigational, or inquisitorial, approach of the French, which even provides that, the
true facts having been found by a judicial officer, their presentation is not to be
polluted by the parties.
‘The common law has a different system, in which reliance is placed on the parties for
the gathering and presentation of the facts. They are presented as the true facts, and
there was a stir quite some years ago [in 1982] when I showed how wide of the mark
our system takes us.’
Judge Fox can be summarised thus: Justice means fairness, fairness means truth, and
truth means what the public think it means, reality. A justice system must have a
moral dimension, and the moral dimension comes from the search for truth.
Judge Harold Rothwax wrote inGuilty: The Collapse of Criminal Justice (Random
House, 1996): ‘Without truth there can be no justice … Our system is a carefully
crafted maze, constructed of elaborate and impenetrable barriers to the truth.’
If Judge Fox and Judge Rothwax are right, it follows that the adversary system is not
interested in the truth, and hence is not fair, just or moral.
Not only is the civil process run by lawyers, some aspects are unfairly biased in
favour of plaintiffs. Intentionally or otherwise, the bias makes work for lawyers; it
encourages people to sue and the sued have to pay lawyers to defend them. Libel, for
InThe Justice Game, Geoffrey Robertson QC says: ‘London is the libel capital of the
world because English law heavily favours the plaintiffs … So there have been
celebrated cases where newspapers have published the truth, yet lost …’ Some think
Sydney is the libel capital of the world, for the same reason.
It goes without saying that libel law is not interested in the truth, and it has favoured
plaintiffs since theScandalum Magnatum (scandalising the magnates) of 1275 made it
an offence to utter a slur against the great men of the realm. The law was necessary
because the magnates, and people in the trade of authority, were mostly organised
criminals, i.e. people who engaged in systematic criminal activity for money or
In 1378, the law was extended to cover other important and respectable organised
criminals, including judges, and libel law is still unfairly biased in favour of plaintiffs
by a series of obviously false presumptions. Judges would claim that the rule of
precedent prevents them from correcting patent injustice. InMedia Law in Australia
(OUP, second edition, 1988), law professors Mark Armstrong, Michael Blakeney and
Ray Watterson wrote:
‘The mere publication of words defamatory of the plaintiff gives rise to aprima facie
cause of action. In pressing his claim, a plaintiff has the benefit of the presumptions of
falsity and of damage. He is not required to prove that the words are false; the law
presumes in his favour that they are.
‘The law also presumes that defamatory words cause harm. Thus it is not necessary
for the plaintiff to produce witnesses to attest to the fact that they now think less of
him, or to prove that he suffered material or financial loss as a result of the
‘Furthermore, a plaintiff is not required to establish that the defendant intended to
harm his reputation by the publication, or that such harm resulted from a lack of care
On my count, libel law is based on seven false presumptions: Appearance (reputation)
is always preferable to reality (character). The private right to reputation is always to
be preferred to the public right to information. A slur is always false. The author of a
slur is always guilty. The subject of a slur is always innocent. A slur is always
intentional. A slur always causes damage.
A slew of lying politicians got libel money: Aneurin Bevan and Dick Crossman, who
falsely denied they were drunk at a Venice conference; Lord (Bob) Boothby, who
falsely denied he had a sexual relationship with an organised criminal, Ronnie Kray;
Jack Profumo, who falsely denied he had sex with Christine Keeler; and Jeffrey
Archer, who falsely denied he resorted to a prostitute, Monica Coghlan..
Because the law is so heavily weighted in favour of plaintiffs, the unscrupulous can
get money by blackmail, which is the crime of theft by extortion, i.e. by putting in
worthless claims and agreeing to settle for less than the high cost of litigation.
In theGutnick-Dow Jones case, the Australian High Court ruled that internet cases of
alleged libel should be heard in the country where the offending slur was published
(Australia), rather than in the country where it originated (the US).
Ambulance-chasing libel lawyers will thus be scanning the Internet for potential
plaintiffs, but only if the US defendant has assets in Australia: US courts will
probably not enforce Australian judgments because they are based on unfair law.
The First Amendment (1791) to the US Constitution guaranteed free speech. In the
US, the burden of proof in libel cases is on the plaintiff rather than on the defendant,
as in the rest of the English-speaking world. US courts thus take the view that US
libel defendants cannot get justice in England (and presumably Australia).
Under international practice of ‘comity’ (reciprocity), US courts normally enforce
orders made by overseas courts, but they draw the line at awards based on law
‘repugnant’ to US law. In 1997 a Maryland court refused to enforce an English libel
verdict on the ground that English libel law ‘is totally different’ from First
Amendment principles of free speech and a free Press ‘in virtually every significant
It has been shown that the adversary process is not fair, just or moral because it does
not seek the truth. Moreover, it is a game (‘contests of liars’) controlled by morally unaccountable lawyers.
Yale Law Professor John H. Langbein’s 2001 CV states: ‘He believes that the
European style of nonadversarial justice [i.e. the investigative (inquisitorial) system]
is more fair, accurate and economical than American procedures.’
Best practice is a fair go all round for E-commerce providers and consumers. To that
end, an E-commerce Tribunal should be set up to settle disputes. The chair should
have an obligation to do whatever is necessary to find and manifest the truth He/she
should not be a lawyer, but a lawyer might be permitted to advise him/her on the
weight to be given to certain evidence. Otherwise, lawyers should not be permitted to
The legislation should state specifically that the adversary procedures are not to be
followed. The NSW Independent Commission Against Corruption and the NSW Land
and Environment Court have been partially crippled by legislation stating that
adversarial procedures will be avoided ‘where possible’. That left the process open to
be ‘lawyerised’ and the truth to be ‘polluted’ in cross-examination.