ADR in the Territory – Where are we now and where might we go?

ADR ADDRESS OF THE SUPREME COURT OF THE NORTHERN TERRITORY ^[1]

14 NOVEMBER 2024

Alistair Wyvill SC^[2]

Introduction

1. Let me begin by expressing my thanks to the Supreme Court and to the Australian Disputes Centre for affording me the honour of delivering this annual address and my appreciation to Justice Kelly and Deborah Lockhart for their kind words of introduction.
2. We gather on Larrakia land. As Tony McEvoy SC reminded us at the 12th Annual Austin Asche Oration in Law and Governance in 2023, the sovereignty of our First Nations Peoples has never been ceded. Of the oppression which flows from that one incontestable fact, Australian writer and Man Booker Prize winner, Richard Flanagan, has said

Oppression is never quarantined, it is an unstoppable virus; it is not just Aboriginal people who writhe in a torment of powerlessness, but we who are also crippled, who are also less, whose very imaginings are constrained and curtained by Australian racism…[3]

3. This address last year was delivered by the Hon Chansey Paech, an Aboriginal man and our then Attorney-General. He spoke powerfully of the “difficult truths about race and justice” here in the Territory and the need to pivot away from “traditional Western adversarial models to look to the future based on first peoples’ principles of conflict resolution” and the important role played in this respect by the new Aboriginal Justice Agreements and by local Indigenous peacemakers and community mediators. Change in the way we administer justice is critical. As the then Attorney noted, “we cannot arrest our way out of the complex social issues and challenges we face here in the Territory”.  And, as Richard Flanagan said, whilst they remain unaddressed, these complex social issues and challenges “cripple us all”.
4. The inevitability of change of that kind was recognised by the Chief Justice in the first of these addresses in 2019. His Honour said:

We are moving rapidly to a time at which the Northern Territory will have a majority Aboriginal population. Last time I looked, demographers and statisticians were predicting that will occur by about 2040. Most of that increase will be in remote and traditional communities. That will have a profound effect on the operation of the Territory’s institutions. While Territory courts must and will retain their constitutional position, there will necessarily be a move away from the traditional Westminster legal system for the resolution of a range of categories of dispute. That will be driven by the adoption of processes which are more suited to Aboriginal communities than the Western adversarial system.[4]

5. My first purpose this evening is to illustrate how far ADR has already permeated the Western adversarial system in the Territory.
6. In doing this, there are two themes which I will develop. First is the benefit of consensus in the administration of justice, not just at the level of individual disputes but at the level of the institutions which undertake its administration. The second theme I wish to develop, which is related to the first, is the benefit of seeing courts and tribunals, where possible and appropriate, as institutions of last resort, to be engaged only after reasonable attempts at consensual resolution have failed.
7. Finally, and in addition to identifying a few areas in civil matters where more might be done, I then propose to identify some green shoots – positive developments – in terms of the introduction of ADR in coronial inquiries, in the care and protection of children and in criminal justice, all areas where ADR has hardly permeated at all, but which seem to me to highlight major opportunities for the future.

Terminology

8. When I refer to ADR, I am referring to dispute resolution other than by the decisions of Commonwealth, State and Territory Courts and Tribunals. Within ADR there are four general areas:

• • arbitration where, by a written contract, an arbitrator or a panel of arbitrators determines the dispute which the parties have agreed to refer to arbitration;
  • mediation where, usually by a written contract, a third person or persons assist the parties to resolve their dispute by agreement. The mediator’s role is not determinative in any respect. There are a wide range of approaches to mediation which have been labelled and discussed in the literature.[5] In my view, these tend to reflect the range of possible approaches which an experienced mediator will consider applying to any given dispute and will not be explored further. Similarly, it seems to me that conciliation is not sufficiently distinct from mediation to justify separate consideration for my present purpose[6];
  • consensual settlement by negotiation between the parties without third party assistance;
  • binding or non-binding evaluation, where a third party – often with a relevant expertise – expresses an opinion about a matter in dispute which at least informs and may even bind the parties, depending on their agreement. Given its relatively low profile in the Territory ADR landscape, I will not be referring to evaluation again this evening.

Methodology

9. I have neither the time this evening, the requisite information nor, in many instances, the experience to address a number of important areas where mediation plays a significant role in the Territory, e.g., disputes under Commonwealth Acts like the Family Law Act 1975, Fair Work Act 2009 and the Native Title Act 1993 to name just three. I will also not be addressing mediations which are conducted under Territory legislation like the Anti-Discrimination Act the 1992 Petroleum Act 1984 and the Business Tenancies (Fair Dealings) Act 2003. I don’t mean to suggest that these are not important areas which require examination. It’s just that it will not be this evening.
10. Investigating the areas of ADR I will be examining is not without its complications. Usually, mediation and arbitration are entirely confidential and the outcomes only known to those involved. The statistics kept by the Courts, to the extent that they exist and are available, tend not to be focused on matters relevant to the impact of ADR. I have had little choice but to make my own inquiries. The response to these inquiries has been generous and helpful. I am very grateful for the assistance I have received. I have decided not to name or otherwise reference the kind people who have assisted to avoid the risk of causing them embarrassment, particularly as they are not aware how I have deployed their assistance.[7] I must however acknowledge the valuable assistance I have received from Eric Beale who proved to be a better researcher than LexisAI.
11. Otherwise, I have fallen back on my own experience and those of my colleagues who have been engaged in mediation and arbitration in the NT over the last 15 years or so. Referencing the precise basis of some of the conclusions I have expressed below is impossible because of the confidentiality which applies to the underlying information. I’m sorry therefore that, necessarily, there is an element of trust required in accepting some of the assertions below. That reflects limitations which are inherent in the subject matter. You are encouraged to make inquiries of others.
12. I propose to begin by contrasting two processes of law reform designed to encourage the settlement of disputes using ADR without having to commence proceedings in court. The first is the Civil Dispute Resolution Act 2011 (Cth) (CDR Act) and the second is NT Supreme Court Practice Direction 6 of 2009 (PD6/2009).

Pre-action conduct

13. The CDR Act, PD6/2009 and related civil procedure reforms in about the first decade of the new millennium in various Australian courts were prompted in part by the Woolf Reforms in the Courts of England and Wales in the 1990s. Of particular relevance to the CDR Act and PD6/2009 was the introduction with the Civil Procedure Rules 1998 (UK) of “Pre-action Conduct and Protocols”.  As described by Lord Woolf, the object behind this aspect of his reforms was:

People will be encouraged to start court proceedings to resolve disputes only as a last resort, and after using other more appropriate means when these are available.[8]

14. The Pre-action Conduct Protocols in the UK require parties to disclose “concise details” of their claim or defence and the “key documents” and then to attempt to resolve the dispute through ADR before commencing proceedings.[9] Compliance is policed by connecting compliance with pre-action protocols with the exercise of the court’s costs discretion. If, for example, a successful party did not properly comply with its pre-action conduct obligations it may not be awarded its legal costs of the proceedings. Compliance is also connected with the making of offers of compromise under the new Part 36 of the Civil Procedure Rules.[10] Non-compliance could be relied upon, for example, to deny effect to an offer which was less than the outcome the offeror has received from the judgment and which, for that reason, would normally result in a more favourable costs order for the offeror.

15. In August 2002, the UK’s Department of Constitutional Affairs published the results of an evaluation of the reforms. The key findings included:

• • Overall there has been a drop in the number of claims issued, in particular in the types of claim most affected by the new Civil Procedure Rules introduced in April 1999.
  • Evidence suggests that pre-action protocols are working well to promote settlement and a culture of openness and co-operation.
  • Part 36 has been welcomed by all interested groups as a means of resolving claims more quickly: claims which settle without court proceedings and those where proceedings are issued.
  • There is evidence to show that settlements at the door of the court are now fewer and that settlements before the hearing day have increased.

The introduction of the CDR Act

16. With effect from 1 August 2011, the CDR Act introduced for most civil litigation in the Federal Courts a form of pre-action conduct. A party commencing proceedings in a Federal Court in respect of a matter which fell within the CDR Act was obliged to file a genuine steps statement which sets out the steps which had been taken to try to resolve the dispute or, if none had been taken, explaining why. The responding party was obliged to file a statement setting out its agreement or the basis of any disagreement with the applicant’s statement. The parties’ lawyers were obliged to explain to their clients the obligations which the CDR Act imposed on them and to assist them to comply. The Court could take into account any failure to comply with the CDR Act when exercising its discretion as to costs, including whether costs should be ordered against a party’s lawyer.
17. The Bill for the CDR Act was based on the recommendations of the National Alternative Dispute Resolution Advisory Council (NADRAC) in its report, To Resolve to Resolve – Embracing ADR. NADRAC (now subsumed into the Australian Dispute Resolution Advisory Council, ADRAC) is a body comprised of some of the country’s leading practitioners and exponents of ADR. It is, necessarily, pro ADR. Submissions opposing the Bill for the CDR Act were made by the judges of the Federal Court[11] and by the Law Council of Australia.[12]
18. The reasons for opposition were, broadly speaking, that the CDR Act would undermine the Court’s role in administering civil justice and increase rather than reduce the costs of and delays in litigation by increasing the possibilities for disputation.
19. The shadow Attorney-General at the time, Senator George Brandis, unsuccessfully sought to amend the Bill by replacing “genuine” with “reasonable”.
20. On any view, the CDR Act was a modest proposal. It did not seek to compel in terms any form of pre-action conduct – the compulsion was indirect via the provision of a statement which, if it evidenced a failure to take genuine steps, may lead to costs consequences. Further, the steps taken to resolve the dispute need only be genuine, they did not have to be reasonable.

The impact of the CDR Act on the workloads of Federal Courts

21. The Commonwealth Attorney-General’s Department appears to have conducted an evaluation survey of the CDR Act between August 2012 until August 2013.[13] Apparently the department engaged Australian Survey Research to conduct a survey of key stakeholder groups’ interaction with the CDR Act.[14] A final evaluation report “is under consideration by government”.[15] I wrote to the Commonwealth Attorney enquiring as to the availability of the results of any survey into the operation of the CDR Act. I was advised two days ago by the Attorney-General’s Department that it had:

… conducted an evaluation into the Act from August 2012 to August 2013, approximately one year after Parts 2 to 5 of the Act commenced on 1 August 2011. The department received feedback from a wide range of stakeholders through the survey mentioned in your correspondence. The results of the survey have not been made available to the public.

22. Similarly the Federal Court appears to have established a National Practice Committee to collect data on the impact of the CDR Act between 2012-2013.[16] Being unable to locate the results of that committee’s work in a published document I wrote to the Chief Justice inquiring as to whether any data on the CDR Act was available. I was advised on her Honour’s behalf that no information was provided when she took over in 2023 about any evaluation of the kind referred to in the 2012-2013 report.
23. For the purpose of assessing myself the impact of the CDR Act I have examined the records of first instance matters in the Federal Court as revealed in the Federal Court’s annual reports. I did not examine the records of the Federal Circuit Court. As that court does not have a large, general civil dispute jurisdiction which falls within the CDR Act, I took the view that new case numbers in that Court were unlikely to be a reliable indicator of the impact of the CDR Act on the behaviour of litigants and their lawyers.
24. It seemed to me that comparing the number of new proceedings issued in the Federal Court before and after the CDR Act would be the best indicator of the impact of the CDR Act, insofar as there was one. However, the Court’s statistics are not arranged according to the categories of matters which fall within the CDR Act. This is particularly the case with claims under the Corporations Act 2001 (Cth). For that reason I did two comparisons – one including and one excluding Corporations Act
25. The results show that the CDR Act does not appear to have had any impact on the number of matters commenced in the Federal Court. If anything, commencements have increased post 2011 at least until around Covid.
26. Research also reveals that less than 35 cases in the Federal Court have come to consider the application of the CDR Act. In fewer than ten cases has non-compliance with the CDR Act impacted on the Court’s decision adverse to the party in breach. Over this period, the Federal Court handed down well in excess of 20,000 decisions.
27. The apparent insignificance of the CDR Act accords with my experience. Over the same period, I was involved in or was aware of several Federal Court matters which were subject to the CDR Act. Whilst its presence may have provoked a further item of pre-action correspondence, that was often just to ensure that a Genuine Steps Statement could be completed without risk of criticism. I cannot recall the presence of the CDR Act ever causing or materially contributing to the parties mediating or engaging in some other form of ADR before commencing proceedings, let alone settling without commencing proceedings.  I have no recollection of a Federal Court judge ever raising compliance with the CDR Act in a matter in which I was appearing.

The introduction of PD6/2009

28. In early 2009, a draft of PD6/2009 was prepared by the Northern Territory Supreme Court’s Rules Committee, chaired by Mildren J and also comprised of Riley J, as the former Chief Justice then was, and representatives of the Bar Association and the Law Society. It replicated in substance the approach set out in the UK pre-action conduct protocol. That draft was approved at the Supreme Court judges’ annual conference in May 2009. It was made as a practice direction on 11 June 2009 under rule 48.28 (“Experimental Rules”) of the Supreme Court Rules 1987 (NT) for “the purpose of considering the practicality of changing this Order[17].  It was stated to come into effect on 1 January 2010, to cease at the end of the year as required by rule 48(2)(b) and to apply to all matters commenced by writ. This includes most types of civil matters with a value of $250,000 or more – for example, claims for personal injuries including medical negligence, construction and project disputes, debt and most property claims and most disputed claims over entitlements to trusts and estates, but excluding administrative law claims. I will refer to the claims covered by PD6/2009 as Supreme Court writ matters.
29. Paragraph 10 of the accompanying explanatory statement said:

These reforms have been identified by the committee and adopted by the Judges now on the basis that (a) their implementation is likely to result in immediate improvements in the administration of civil justice and (b) they are likely to be part of the new system once the reform process has been concluded. It is in this sense that this Practice Direction is described as a “trial”. It would be wrong to assume that these particular reforms themselves are necessarily provisional.[18].

30. Consistent with this warning, PD6/2009 has been continued in force every year since.
31. Following its introduction, the profession arranged seminars on PD6/2009. Local practitioners undertook the relevant training to become mediators to deal with the expected increase in demand. Generally speaking, the profession embraced compliance with the new requirements for pre-action conduct. Whilst there was a small minority who did not agree with the change, I do not recall witnessing any positive resistance to compliance.
32. The importance of compliance with PD6/2009 has been regularly reinforced by decisions of the court including but not only as to costs[19] and by the practice of the Associate Judge in taking into account compliance with PD6/2009 – or its absence – when a new matter was first mentioned in the directions/applications list.

The impact of PD6/2009 on the workload of the Supreme Court

33. The impact of PD6/2009 on the workload of the Supreme Court appears to have been significant. The average number of Supreme Court writ matters commenced in the 10 year period prior to PD6/2009 coming into effect is 94; the average since is 46, a reduction of 48 per year or 51%. Looking at the average since 2017, the reduction from pre-2010 levels is about 56%, down to 42 new cases per annum.
34. This accords with my experience over the same period. Prior to 2010, mediations were rare. I have never heard of a mediation being conducted prior to 2010 in a Supreme Court writ matter before the writ itself was issued. Following 2010, from my own observations, I estimate that on average there have been at least 20 private mediations conducted each year of Supreme Court writ matters, with about half of those conducted before proceedings have been commenced. Success rates in private mediations in the Territory in Supreme Court writ matters are at about 90%.
35. The difference between this estimate of the number of matters resolved each year by mediation before proceedings have been commenced (about 9) and the average reduction in commencements per annum (46) reflects, in my view, the much greater degree of care being taken by plaintiffs and their lawyers before commencing proceedings since PD6/2009 came into effect, as well as the fact that some matters are settled through the PD6/2009 process by negotiation between solicitors without requiring formal mediation. I do not believe it is due to a reduction in the number of disputes. If anything they have increased in step with economic activity in the Territory over the last 14 years.
36. If these figures are correct, as I believe they are, since coming into effect, PD6/2009 has led to the consensual resolution[20] of over 600[21] Supreme Court writ matters which, but for PD6/2009, would otherwise have resulted in proceedings being commenced. From my knowledge of the level of legal costs in Supreme Court writ matters, it would be realistic to assume that, on average, each party in these matters has thereby avoided paying legal and other costs of at least $100,000[22] in reaching a resolution of their matter. Assuming, conservatively, that there were only two parties in each of these matters, this suggests that PD6/2009 has led to savings to litigants in Supreme Court writ matters over the last 14 years of over $120 million[23].
37. This does not bring to account savings to parties who have commenced proceedings without complying with PD6/2009[24] and who have then resolved the matter at a mediation shortly after proceedings were commenced, applying PD6/2009 in accordance with its paragraph 5.
38. It also does not take into account the savings to the Court. These are difficult to estimate but can be expected to be significant. It seems that, but for PD6/2009, the Supreme Court would have had over 600 additional matters since 2010. Assume also that 10% of these cases (60) would have got to the commencement of (say) a three-day trial and half of those (30) to judgment. This means that the Supreme Court would have had to have found an additional 180 trial days and written 30 additional judgments over the last 14 years, noting that judgments following civil trials are often the longest and most demanding judgments to write. That is a conservative estimate and takes no account of interlocutory applications, appeals and the impact of over 600 new matters on the registry.

Why is PD6/2009 successful and the CDR Act not so?

39. In the pecking order of instruments, a Commonwealth statute ranks a long way above a temporary practice direction even of a Supreme Court. Yet, why does it appear that PD6/2009 has achieved its intended purpose, yet the CDR Act has not? I think there are two principal reasons for this:

• • PD6/2009 reflected a consensus which had been reached between the Supreme Court and the local profession – the critical actors for the implementation of any reform – about how best to improve the delivery of justice in writ matters in the Supreme Court. The CDR Act was an instruction given by Parliament for a similar purpose in Federal matters but generally opposed by the critical actors – the court and the profession. Civil justice is a complex system which operates by reference to a range of influences and considerations including, for example, leadership and culture amongst judges and the profession and the economic interests of the profession. It is naïve to think, I would suggest, that successful reform can be implemented simply by instruction from above. The results of the CDR Act evidence that. The “buy-in” of the court and the profession is critical, as the results of PD6/2009 demonstrate.

• • Reflecting the challenges it faced, the CDR Act lacked sufficient content to make a real difference. Its ambition was too modest. It did not clearly and persuasively identify the change in behaviour which it sought and why. As a result, it failed to encourage sufficiently those who were open to change and was too easily treated as a formality by those who were not. PD6/2009 on the other hand defined clearly the outcome which was to be achieved and the conduct devised to achieving it.

Supreme Court settlement conferences

40. It is also important to note that the impact of ADR on Supreme Court matters does not stop at private mediations under PD6/2009. Since 1 January 2020[25], there have been 82 settlement conferences (an average of about 17 per year) held under the auspices of the Associate Judge or the Registrar which have produced 34 settlements on or about the day of the conference, a success rate of 41% (an average of 14 per year). The figures by year are as follows[26], noting obviously that the figures for 2024 are not yet final.

41. Of the 48 over this period which did not settle, another 34 were resolved subsequently without a trial, some no doubt as a result of the settlement conference and others by a private mediation or negotiation sometime after the settlement conference. This produces an overall resolution rate following settlement conferences of 83%. Of the balance, only four went to judgment. Eight are on-going.

Matters resolved by trial in the Supreme Court

42. From a review of the recent published decisions of the NT Supreme Court and consistent with the analysis immediately above, it seems that on average about three writ matters get to judgment every year. Assuming again that disputation is running at about the same level as it was prior to 2010 (94 new disputes per annum), it appears that on average 55% (52) are resolved before proceedings are commenced, 15% (14) are resolved at Settlement Conferences, 27% (25) are resolved by private mediation or some other consensual process after proceedings are commenced but before trial, and 3% (3) are resolved by judgment following a trial. We have no way of knowing with any precision what proportion are resolved by mediation. Including Settlement Conferences as mediations which I think is appropriate, I would estimate that the percentage of disputes of this kind which are resolved by mediation (before and after commencement) is between 30% and 40%.

43. Hence it appears that about 97% of NT Supreme Court writ matters are resolved by ADR and only 3% by judgment. This corresponds reasonably closely with the experience across all Australian superior courts.[27] The principal point of distinction between the Territory and other superior courts in Australia is that the Territory is the only jurisdiction with general pre-action conduct requirements like those in PD6/2009. This appears to mean that our matters are settling much earlier (with over half resolving without the need to commence proceedings at all), with substantial savings to the parties and to the court as a result.

Medical negligence claims as an example

44. To give a practical example of the impact of ADR on a particular type of matter, a reasonable estimate of the number of medical negligence claims which are commenced in the Supreme Court (or, but for PD6/2009, would have been) is around ten per annum. Hence, it is likely that there have been over 100 Supreme Court level medical negligence claims which have been made and resolved consensually since PD6/2009 came into effect. This seems realistic to me as a significant proportion of the matters I mediate are medical negligence claims. In about half of those matters, proceedings have yet to be commenced.
45. The last medical negligence claim which went to judgment in the Supreme Court was Bentley v Northern Territory of Australia & Anor [2008] NTSC 36. Hence, over the last 16 years, all Supreme Court level medical negligence claims – totalling I estimate well over 100 – have been resolved consensually (mostly I believe by mediation); none have been resolved by trial.

Is ADR now part of the administration of civil justice?

46. In an article in 1997, Sir Laurence Street – one of the country’s most highly-regarded mediators who was at the forefront of its introduction into litigation – observed that:

ADR – more specifically mediation – is a valuable social mechanism for the resolution of disputes, but it is not an exercise in the administration of justice. It is not subject to any appellate or supervisory authority of the court system.[28]

47. Mediation obviously is not an exercise of judicial power. However, I think it correct to say that mediation has become more than just “a valuable social mechanism for the resolution of disputes” and is now an established part of the system which administers civil justice. This is reflected by the instruments from Parliament, the Executive and the Courts which acknowledge its existence, encourage its use and place it ahead, in the order of things, of resolution by the court.[29] It is also reflected by ADR practice. Of all the factors which influence parties’ decisions in a mediation or negotiation, one of the most important, if not the most important, is the parties’ views on what the court is likely to decide, how much that will cost and how long it will take. Put another way, without the presence of the court, it is difficult to see how ADR would work at all. It would fail for want of its alternative.

48. It is important that courts claim ADR as part of the outcomes they produce. The quality of justice which a court provides in the cases it decides (and the investment of taxpayer funds required to produce it) is directly reflected in the quality of the ADR outcomes within its jurisdictional reach. These outcomes also reflect and justify the taxpayers’ investment in a court. Underinvestment in and resultant underperformance by a court damages ADR outcomes in a similar way to the damage it inflicts on the parties before the court.

Is mediation providing justice?

49. This is an important question. Dame Hazel Genn, Professor of Socio-Legal Studies in the Faculty of Laws at University College London, summed up her criticism of modern mediation with this neat phrase:

The outcome of mediation, therefore, is not about just settlement it is just about settlement.[30]

51. The present difficulty with mediated outcomes in Supreme Court writ matters is that too often Professor Genn is correct. The Court system does not often offer the parties a realistic means for taking a matter to judgment, and mediations then become “just about” settlement. It is not only the size of the legal and other costs of going to trial when compared with the amount at stake (this is particularly problematic in medical negligence matters), but the fact that judgments are sometimes being reserved for periods measured in years rather than weeks.[31] I think this is one of the reasons why settlement rates are so high in mediations concerning Supreme Court writ matters.
52. In responding to the “just about settlement” problem, Professor Genn said:

Mediation enthusiasts have seized the policy initiative and captured the imagination of thought-leaders while the legal profession and mediation sceptics have largely been spectators in this battle of ideas. The point is not to challenge and resist in order to preserve the status quo, but to engage in the debate, to argue for the benefits of public justice while recognizing where and how the public justice system and legal practice needs to change and to offer a realistic programme for improvement in order to meet the needs of disputing parties seeking justice through the legal system… there is a need for more imaginative thinking in civil justice practice and procedure.[32]

52. We need more imaginative thinking in civil justice practice and procedure to avoid the “just about settlement” problem in mediations in Supreme Court writ matters. We need first to find a way to reduce the time between the day of the PD6/2009 mediation and the day of judgment if the plaintiff does not accept the defendant’s best offer. In the average case, it seems to me the target period should be a year. If the court was to commit to that, then the lawyers could fairly be required to reciprocate by taking greater effort to keep their cases focused and their costs down so they do not overwhelm what’s at stake, and thereby provide litigants with a practical alternative to compromise.
53. Another approach is for the mediator to offer arbitration to the parties when it is clear that mediation has failed. Obviously, the arbitration would have to be conducted by someone else, but the mediator could assist the parties to identify an arbitrator and settle the terms of the appointment and the procedure for any hearing. This option – called “med-arb” in the ADR community – requires serious consideration particularly if the option of going to court remains unrealistic. I will return to med-arb when I address arbitration.

NTCAT and its Compulsory Conferences

54. NTCAT was established in 2014 for lower-level claims including financial claims under $25,000. From the beginning, NTCAT was under an obligation to:

… ensure that proceedings are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes and the use of mediation and alternative dispute resolution procedures when appropriate…[33]

55. Part 4 Division 4 Subdivision 1 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT) provides for a “Compulsory Conference”, the purpose of which is “to identify and clarify the issues in the proceeding and promote the resolution of the matter by a settlement between the parties”.[34] Held under the auspices of a member of NTCAT acting in a not-dissimilar way to a mediator, the parties are encouraged to find a consensual resolution to their dispute. Matters are not normally set for a hearing until a compulsory conference has been held and has been unsuccessful. The statistics for the last two financial years suggest an average settlement rate of about 50%.

56. Given that small matters are often no less difficult to resolve than large matters, that Compulsory Conferences are provided without charge to litigants, and that on these figures NTCAT may well be resolving more matters per year by a form of mediation than any other institution in the Territory, NTCAT appears to be providing a particularly valuable and effective ADR service to those who fall within its jurisdiction.

Local Court – workers compensation

57. Section 103J of the Return to Work Act 1986 (NT) was introduced in 1998. It requires a claimant to apply for mediation under Part 6A Division 1, to have submitted to mediation and for that mediation to have been unsuccessful, before the claimant may commence proceedings in the Work Health Court. NT Worksafe statistics with respect to mediations under Part 6A Division 1 and subsequent applications to the Work Health Court since 1 January 2020 are as follows:

58. These figures suggest that over the last four and a half years, there have been 1,491 mandatory mediations held under Part 6A Division 1, of which 59% have resulted in an agreement which avoids proceedings being commenced in the Work Health Court. Taking into account the matters where, after an unsuccessful mediation, the applicant nevertheless elects not to proceed and the matters which are resolved by consensual discontinuance or withdraw after commencement, only 15% of applications remained active in the court list. This system also appears to be providing a valuable ADR service for those who are party to disputes under the Return to Work Act 1986 (NT).

59. Of the matters which remain active, most are subject to a further “directions conference” with the Judicial Registrar which has the format of a mediation. Unresolved matters are then listed for hearing. There are normally at least 22 matters listed for hearing every year. Of these, the great majority settle usually in the days leading up to the hearing. Ultimately, between two and five matters go to hearing and decision every year.

60. This means that around 99% of workers compensation cases are resolved by ADR, with over 60% resolved by a process akin to mediation. Only around 1% go to decision.

Local court – ordinary civil list

63. The Local Court’s ordinary civil jurisdiction deals with claims between $25,000 and $250,000. It does not have rules similar to PD6/2009. Hence, there is no encouragement for parties to attempt to resolve disputes before they come to the Local Court.
64. I have not been able to get precise figures about commencements in the ordinary civil list. I expect that they would be significantly greater than the number of new Supreme Court Writ matter disputes, hence well over 100. Every defended matter has a “conciliation conference” under the auspices of the Judicial Registrar. The sense I get is that only a small percentage – well less than 50% – settle at these conferences.
65. Between ten to twenty civil matters will go to a hearing in the Local Court every year. At present, there is significant pressure on civil listings. There are no further dates for multi-day hearings for civil disputes available in 2025.
66. That suggests that there are significant opportunities for ADR in the Local Court, in terms of private mediation and in terms of the med-arb option which I will discuss below, supported as well by the introduction of rules similar to PD6/2009.

Arbitration in the Territory generally

65. Over the last 15 years, arbitration from matters connected with the Territory has transformed particularly by disputes over the Inpex development.  This project has produced some of the largest, if not the largest, arbitrations in Australian history.[36] With the exception of Cris Cureton, I’m not aware of any local practitioners being closely engaged in the conduct of any of these arbitrations. However, other large Territory projects have also generated arbitrations. Arbitration now accounts for a significant part of my own practice. We are also very fortunate that two specialists in international and domestic arbitration, Dr Cameron Ford SC and Damien McDonald, have returned to practice in the Territory, increasing significantly our local capacity in this important area of ADR.

The Clarke v TGen arbitrations

66. Proceedings recently commenced and heard in the Queensland Supreme Court to set aside two awards made in arbitrations between Clarke Energy (Australia) Pty Ltd and Power Generation Corporation, Territory Generation or TGen provide a rare and detailed insight into domestic arbitrations in the Territory, in this instance under the administration and rules of ACICA, the Australian Centre for International Commercial Arbitration.
67. Clarke brought claims against TGen in respect of major developments undertaken to the Alice Springs power station at Owen Springs and to the Tennant Creek power station. The disputed financial claims on both stations principally arose from hundreds of days of delay in the completion of both projects and totalled over $20m. Clarke failed on all disputed claims. Its application to set aside both awards has been heard and judgment reserved. The decision is expected shortly prior to Christmas.
68. These arbitrations illustrate the best and the worst aspects of modern domestic arbitration. As to the best aspects:

• • confidentiality – this protected both sides from the publication of many serious allegations which were made against them and their staff, some of which were entirely unfounded. That confidentiality was lost only because neither party sought suppression of the parties’ names in the Queensland proceedings;
  • flexibility of trial procedures – the inapplicability of the rules of evidence enables an arbitrator to deal with substantial amounts of detail in a more practical way than a judge can. In these matters, there were over 50 discrete claims and counterclaims which were brought, some were worth many millions of dollars, others only a few thousand. The hearing was completed in less than seven weeks. I would think that court proceedings in respect of the same matters would have taken at least twice as long. The flexibility of arbitral procedures also meant that hearings could move reasonably easily between in person and virtual. The Covid crisis was navigated without any particular difficulty;
  • no right of appeal – in addition to finality, this also means that, unlike a trial judge, an arbitrator is not obliged to decide all points in issue in a matter. Although the reasons for the arbitrator’s awards were about 500 pages, he decided only those matters which were necessary to support the awards he made, which was less than 20% of the matters which were in issue;
  • full indemnity for costs and their immediate assessment by the Arbitrator – the starting point for costs in arbitrations in Australia is usually that a successful party gets 100% of their actual costs, if reasonably incurred. The Arbitrator then proceeds to quantify costs by reference to the invoices paid by the party entitled to costs and will normally make a further specific award of the precise amount of costs to be paid. This is a significant advantage over what is offered by the Courts.

69. As to the worst, arbitrators are much less inclined than judges to discipline poor behaviour by a party and often find little support in institutional rules for doing so even if they wished. In these arbitrations, the arbitrator accepted that Clarke’s pleadings failed to plead coherent claims but sought to remedy the problem by ordering further particulars rather than making Clarke plead its claims properly. He did not believe he had the power to strike out under the then ACICA rules, a view which I think is probably correct. The result was the provision by Clarke of over 1,000 pages of particulars which only made the incoherence of its claims worse. That and other poor conduct by Clarke in the proceedings resulted in an explosion of costs and time. The notices of arbitration were issued in July 2019 but the merits awards were not issued until July 2023. Although I am not yet able to disclose the terms of the costs awards[37], a review of the volume of material in the matters suggests that both parties’ costs together are likely to have totalled more than the $20m in dispute.
70. Arbitrators’ nervousness about making orders to enforce proper conduct arises from their concern to avoid providing any basis for a claim to set aside their ultimate award for serious breach of the rules of procedural fairness. Where the arbitration agreement does not contain specific commitments as to time and budget, arbitrators risk being criticised for not indulging parties acting in breach of directions, particularly where the fault lies with the party’s lawyer.
71. It seems to me that including terms in the arbitration agreement which set the time and cost for the completion of the arbitration (from which the prejudice caused by default can be more easily identified) gives the arbitrator not just a power but an obligation to conduct the arbitration to achieve those outcomes. In those circumstances it will be more difficult for a defaulting party to claim unfairness from directions targeted at ensuring that these agreed outcomes are achieved by declining to indulge default.

Med-arb?

72. It is important to note that arbitration work in the Territory is coming not just from arbitration agreements included in the project contracts themselves, but from ad hoc arbitration agreed for a particular dispute after it has arisen and often reached at a mediation; that is, being unable to agree on the resolution of their dispute at mediation, the parties reach agreement – often with the assistance of the mediator – to have their dispute arbitrated in a particular way and often by particular persons rather than litigated in courts. This is an example of “med- arb” to which I have already referred.
73. It seems to me that there is an opportunity to expand med-arb in the Territory to provide more litigants who cannot reach what they consider to be an acceptable settlement with an opportunity to have their dispute determined not just fairly, but promptly, cost effectively and finally in a way which the courts cannot offer at least at the moment.[38]
74. It also seems to me that this is best done as part of a mediation where the ad hoc arbitration agreement can be framed specifically to deal with the particular dispute as efficiently as reasonably possible whilst the detail of the matter is still fresh in everyone’s mind.
75. For this proposal to gain traction, ideally the agreement should record the commitment of the parties and the arbitrator to the provision of an award within a particular time and for a particular cost, and to do all that is reasonably required to achieve this. If med-arb is to be looked at as a viable alternative for matters in the Local Court, binding commitments of that kind are particularly critical in my view.

Conclusion on ADR and civil justice in the NT

76. Drawing together this information about the introduction of ADR into civil matters (and putting arbitration to one side for the moment), we can see that, at present, over 800 disputes of the kind I have been discussing arise every year. Of those, at least 50% are resolved by formal mediation or a mediation type process. Of the circa 540 matters in the jurisdictions of the Supreme, Local and Work Health Courts which I have been discussing, the remaining matters that get to a final decision are less than 25 (4%).[39] This means that ADR resolves more than 96% of these civil matters in the Supreme, Local and Work Health Courts and 50% of the (necessarily civil) matters in NTCAT. In addition to the benefits of consensual resolution for the individuals and institutions involved (including the courts), the savings to parties and to the taxpayer are substantial.
77. If the role of arbitration in resolving disputes arising in the Territory is brought to account, the proportion of matters resolved by Courts and Tribunals reduces even further. It should also be noted that, by their nature, the Territory matters which have been arbitrated recently are significantly larger in scale than the matters which have gone to judgment in the Supreme Court. Hence arbitration too takes a significant burden off the Supreme Court and off taxpayers.
78. I now wish to move from matters which are predominantly to do with the recovery of money, to matters which are predominantly to do with the lives of people, and most often Indigenous people. This will take much less time as I’m afraid there is not nearly as much to say about the role of ADR.

Local Court – mediations in proceedings under the Care and Protection of Children Act 2007

79. Over the last decade or so I have conducted several appeals mainly by Indigenous parents from decisions affecting children under the Care and Protection of Children Act 2007 (CAPOC Act). I have often been surprised by the adversarial nature of proceedings at first instance, the volume of material produced for the court and the number of hearings in court. I cannot recall an occasion where I noted that mediation had been proposed, let alone utilised.

80. The CAPOC Act makes provision for CEO arranged mediation conferences (s 49) and for court ordered mediation conferences (s 127). As I understand it, these provisions are rarely if ever engaged. I am told that the most common approach to mediation in this jurisdiction is to seek the appointment of a judicial registrar as a mediator under Practice Direction 28.28. That provision permits the Local Court to order the parties in proceedings under the CAPOC Act to attend a mediation conference before a registrar or judicial registrar under rules 32.07(2)(a) & (b) of the Local Court (Civil Jurisdiction) Rules 1998. I understand that mediations of this kind occur in about 1 in 20 cases and have had some success. Referral for private mediation is rare, reflecting its lack of success in the past.

81. In proceedings like this, primarily concerned with the best interests of children and where the taxpayer is usually funding all parties as well as the Court, greater use of mediation is likely to produce better and more affordable outcomes. I understand that initiatives with this in mind are under consideration. Clearly, that is a good thing. There needs to be much greater, successful use of mediation in these matters and, if that proves difficult, mediation should be considered between the key institutions – Territory Families and the various legal aid organisations involved and perhaps also the Local Court – to try to remove the barriers to successful mediation which do not appear to exist in other civil jurisdictions. A better way must be found to focus more effort and resources towards promoting the welfare of children and their families through consensual solutions, and less towards the resolution of contests about children by the court.

82. Given that the families involved in proceedings under the CAPOC Act are normally Indigenous, it would seem desirable for mediators in such matters to be Indigenous. It has been suggested to me that an Indigenous mediator ought to be appointed as a judicial registrar so they may mediate care and protection of children matters in that capacity. That would send a powerful message to families about the importance of consensual resolution, in addition to improving the diversity of the Local Court.

Coronial Inquiries

83. It has been suggested that the traditional approach to coronial inquiries could benefit from the adoption of principles of restorative justice. I refer particularly to the article written by Ian Freckleton QC entitled Minimising the Counter-Therapeutic Effects of Coronial Investigations: In Search of Balance[40].  The article begins with a quote from the former Chief Justice of the United States, Warren Burger:

The entire legal profession – lawyers, judges, law teachers – has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers – healers of conflicts…

84. I am sure that many of those who followed the Kumanjayi Walker coronial inquest would have been as concerned as I was that the process itself, no matter how skilfully managed by the Coroner, was likely to cause further damage to already fractured relationships. I was delighted to learn that, anticipating this, a joint initiative between the Community Justice Centre (CJC) and the Coroner’s Office has seen trained mediators introduced to the process and the parties. Josh Ingrames from my chambers and his colleagues at the CJC have spent a number of weeks working closely with the parties “to explore the potential for restorative processes between family members, community leaders and government agencies at the conclusion of the inquest”.[41] The issue is that their job probably has become much more difficult than it already was after the tragedy but before the inquiry.
85. As Ian Freckleton suggests, a better balance must be reached between the need to ascertain the relevant facts and the need to assist the individuals, communities and institutions affected to establish as best they can working and respectful relationships. Both are equally important if tragedies like Kumanjayi Walker’s death are to be avoided.

Criminal matters

86. In the inaugural address of this series, the Chief Justice noted that the ADR model set out in the NT Law Reform Commission’s 1996 Report on Alternative Dispute Resolution in Aboriginal Communities was never implemented. Similarly, the Commission’s final report on Mediation and the Criminal Justice System published about the same time and proposing victim/perpetrator mediation where the victim consents and the perpetrator accepts responsibility for the offence appears to have enjoyed only limited take up, e.g., Youth Justice Conferencing[42]. In any event, it was a modest proposal which might impact on what is said at a sentencing hearing but not on the existence of the prosecution itself.
87. However, as we can see from Aboriginal Justice Agreement initiative and the CJC’s efforts in supporting the use of Indigenous peacemakers and mediators in communities[43], progress appears to have been made in Indigenous communities in moving away from traditional Western adversarial models for dealing with disputes (including those where criminal offences have been committed) and towards ADR.
88. The Aboriginal Justice Agreement initiative is well known; the CJC’s Indigenous peacemakers’ and mediators’ initiatives less so. This work is incredibly important. Early resort to restorative justice methods involving Aboriginal people trained in mediation has been effective in managing disputes in communities and particularly the risk of escalation. This form of mediation has a direct impact on preventing crime. It is using mediation to stop personal disputes becoming legal disputes – the offending which leads to the prosecution of Indigenous Territorians. It is like PD6/2009, but on steroids. Its benefits are obvious.
89. But these efforts are seriously under-funded. Opportunities for early intervention at a modest cost are often lost, with the result that offences are committed which otherwise would not have been committed and which sees far greater costs in the long run, not to mention the avoidable loss of health, welfare, liberty and life. To take another example, the CJC cannot afford to pay its highly trained, professional sessional mediators a casual rate of more than $75 per hour. Hence, we pay more in the Territory to repair our plumbing than we do to repair our relationships.
90. Otherwise, unlike civil justice, ADR appears to have little presence in the criminal justice system. It is no secret that the court system is under strain. I appreciate that ADR practices cannot be automatically applied in the criminal context. However, there must be opportunities for ADR which are presently not being explored and which could make a real difference. I find it difficult to believe, for example, that there is not a better way of dealing with minor offending like traffic matters in remote communities than by prosecuting them in the Local Court to conviction and by the imposition of a fine on people who already are suffering from the fact they have little if any capacity to pay. Community mediation to deal with the underlying causes and to provide practical solutions and treating the Local Court as a last resort rather than a first resort would seem a better option.

Conclusion

91. Over the last 25 years in civil matters concerning money claims, the use of ADR and particularly mediation (but also arbitration) has increased significantly. This has reduced the proportion of civil disputes which requires determination by a Court or Tribunal to a small fraction. This progress in developing alternatives to the Western adversarial models in the administration of civil justice is the result of legislative reform and co-operation between the courts and the profession. Generally speaking, the courts’ resources in these civil matters are saved for those disputes which cannot be resolved by other means. There have been significant savings for parties and for the taxpayer as a result, in addition to the benefits inherent in consensual solutions for the parties and for our Courts and Tribunals. There is more which can be done, but generally we appear to be heading in the right direction.
92. On the other hand, when we move to matters concerning people, and particularly Indigenous people, ADR has had very little impact and the courts remain the first, and often the only, resort. They are under significant pressure as a result and the outcomes – including the excessive incarceration of Indigenous people – are problematic to say the least.
93. It is true that we are seeing the green shoots of progress in ADR in the Aboriginal Justice Agreement initiative and the CJC’s Indigenous peacemakers and mediators’ initiatives including the CJC’s engagement in Coronial Inquiries. These are practical and effective steps which are targeted at reducing the incidence of disputation and its impact. By giving agency to Indigenous communities and individuals and thereby providing better outcomes, they are mitigating “the torment of powerlessness” to which Richard Flanaghan referred and from which we are all suffering.
94. Professor of Philosophy and Economics at Harvard University and Nobel Prize Winner Amartya Sen has said:

To ask how things are going and whether they can be improved is a constant and inescapable part of the pursuit of justice.[44]

95. As I noted at the beginning, both the former Attorney and the current Chief Justice have identified the need to pivot away from traditional Western adversarial models towards the adoption of processes which are “more suited to Aboriginal communities”; in other words, towards ADR informed by “first peoples’ principles of conflict resolution” and in which, necessarily, Indigenous people must have a leadership role. The benefits of a more consensual approach have been demonstrated in civil justice. We have seen the beginnings in other areas which impact more directly on Indigenous peoples. But, if we ask “how things are going and whether they can be improved”, whilst the need and direction for improvement appear to be clear, we still have a long way to go.

…………………………..

[1] This paper was read with minor abridgements to meet the limit on time for the event and has had minor editing since.

[2] Barrister, William Forster Chambers, Darwin, www.williamforster.com

[3] Flanagan, The voice and our inauthentic heart, The Monthly, July 2023.

[4] Hon Michael Grant AO, The Interaction Between the Courts and Alternative (or Assisted) Dispute Resolution, Australian Disputes Centre Inaugural Northern Territory ADR Address, 30 May 2019, 10.

[5] See generally Boulle, Mediation and Conciliation in Australia: Principles Process Practice; LexisNexis, 2023.

[6] For a helpful discussion of the nature of conciliation as a distinct form of ADR, see Australian Dispute Resolution Advisory Council’s final report on Conciliation, Conciliation: Connecting the Dots, November 2021, www.adrac.org.au/_files/ugd/34f2d0_6a05f25a238349a79b23b2dd64efc27e.pdf

[7] If anyone wishes to confirm the information included below which I have obtained from others by speaking to that source, they should contact me.

[8] Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO 1996), section I para 9.

[9] www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct ; clauses 6, 8.

[10] The improvident rejection of a Part 36 offer is likely to result in the costs being ordered against the rejecting party.

[11] www.aph.gov.au/DocumentStore.ashx?id=32a08bfb-8c06-4acc-9b14-66326c4b53c1

[12] www.aph.gov.au/DocumentStore.ashx?id=39625b59-881d-49f1-b86f-1d4a9bad9665

[13] www.ag.gov.au/legal-system/alternative-dispute-resolution/civil-dispute-resolution-act-2011

[14] nswbar.asn.au/the-bar-association/publications/inbrief/view/af77f7e6a3215c1d0530174028958926

[15] www.ag.gov.au/legal-system/alternative-dispute-resolution/civil-dispute-resolution-act-2011

[16] Federal Court of Australia, Annual Report 2012-2013, www.fedcourt.gov.au/digital-law-library/annual-reports/2012-13/ar2013.pdf , p 41.

[17] Order 48 is an order for “Case flow management and setting down for trial”.

[18] https://supremecourt.nt.gov.au/__data/assets/pdf_file/0003/727572/PD-6-2009-Trial-Civil-Procedure-Reforms.pdf

[19] Spadaccini v Grice (2012) 32 NTLR 1; Trepang Services Pty Ltd v Sodexo Remote Sites Australia Pty Ltd [2014] NTSC 23; Ceccon Transport Pty Ltd v Tomazos Group Pty Ltd (No 2) [2017] NTSC 55; Thiess Pty Ltd v Hydro International Pty Ltd [2021] NTSC 21.

[20] Including by withdrawal.

[21] 48 x 14 = 672

[22] In my experience, about 1/3^rd of the costs of conducting an average Supreme Court matter to trial.

[23] $100,000 x 2 x 600 = $120 million

[24] Because, e.g., a limitation period was about to expire.

[25] I have not been able to obtain records for earlier periods.

[26] As recorded in the Court’s Odyssey case management system.

[27] Where the estimate of cases resolved by trial is 2%: see Hon Michael Grant AO, The Interaction Between the Courts and Alternative (or Assisted) Dispute Resolution, Australian Disputes Centre Inaugural Northern Territory ADR Address, 30 May 2019, 6.

[28] Mediation and the Judicial Institution (1997) 71 ALJ 794 at 795.

[29] For two recent examples, see Model European Rules of Civil Procedure, adopted by UNDROIT (International Institute for the Unification of Private Law) and the European Law Institute in 2020, rules 3(a), 9; and Singapore Supreme Court Rules of Court 2021, order 5.

[30] Hazel Genn, What Is Civil Justice For? Reform, ADR, and Access to Justice (2012) 24 Yale Journal of Law & the Humanities 397 at 411, emphasis in the original.

[31] This issue is also problematic in other jurisdictions beyond the NT. See Aaron Patrick, ‘Frustration over Federal Court judgment delays’, Australian Financial Review (online, 27 October 2018) www.afr.com/companies/professional-services/in-the-federal-court-speed-of-justice-depends-on-the-judge-20181014-h16mk9 : “A database of 11,000 cases compiled for AFR Weekend shows that 39 judges out of 69 have taken more than a year to write a judgment – one took 934 days to be finalised after the hearing ended – and six took more than two years to write judgments.”

[32] Hazel Genn, What Is Civil Justice For? Reform, ADR, and Access to Justice (2012) 24 Yale Journal of Law & the Humanities 397 at 412.

[33] Northern Territory Civil and Administrative Tribunal Act 2014, s 10(c).

[34] Section 108, see also https://ntcat.nt.gov.au/sites/default/files/information_sheet_-_compulsory_conference_1.pdf

[35] The applicant’s claim has been resolved with the applicant accepting part of the claimed compensation.

[36] See https://globalarbitrationreview.com/article/japans-inpex-launches-billion-dollar-claim-against-korean-shipbuilder ; https://arbitrationblog.kluwerarbitration.com/2023/04/25/energy-arbitration-and-japanese-companies-recent-experience-and-emerging-trends/ ; Inpex Operations Australia Pty Ltd v Akzonobel Nv (No 2) [2024] FCA 815 at [17]; INPEX Operations v. Daewoo Shipbuilding & Marine Engineering [2022] NSWSC 1125; Inpex Operations Australia Pty Ltd v AIG Australia Ltd [2023] WASC 332; CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd [2017] WASC 112; Kawasaki Heavy Industries Ltd v Laing O’Rourke Australia Construction Pty Ltd (2018) 96 NSWLR 329.

[37] It has been annexed to an affidavit filed in the Queensland Supreme Court proceedings which has not yet been read.

[38] Not every claim which may be brought in a court may be brought in an arbitration; see, e.g.,  Robotunits Pty Ltd v Mennel [2015] VSC 268 in relation to the arbitrability of claims under the Corporations Act 2001 (Cth); but also see Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 concerning the arbitrability of claims under the proportionate liability legislation.

[39] Reasonably straightforward reform of Local Court procedure might see that total reduced to about 10.

[40] (2016) 16 (3) QUT Law Review 4

[41] CJC’s 2023/24 annual report, https://hdl.handle.net/10070/971630  at 18.

[42] https://victimsofcrime.org.au/understanding-the-justice-system/

[43] CJC’s 2023/24 annual report, https://hdl.handle.net/10070/971630 at 16-18.

[44] Amartya Sen, The Idea of Justice, 2010, Penguin Press, 86.