CASE MANAGEMENT IN NEW SOUTH WALES
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
TO THE ANNUAL JUDGES CONFERENCE
KUALA LUMPUR, MALAYSIA
22 AUGUST 2006
Thank you for this opportunity to attend your conference and to enhance my understanding of your judicial system. Over recent decades a new sense of international collegiality has emerged amongst judges throughout the world. The administration of justice in New South Wales has been considerably enhanced by this international contact.
I have been asked to address you on some aspects of the Australian judicial system. The primary focus of my remarks will be directed to the management by the New South Wales Supreme Court of its civil caseload. The objective of case management is to reduce delays and minimise the costs of litigation. The means of achieving these objectives depend on the nature of the judicial system and the culture of the legal profession. These matters vary from one jurisdiction to another, including within Australia itself. Accordingly, what works will differ from one jurisdiction to another.
I would not wish to be understood as putting forward anything we do in New South Wales as best practice or as recommending its adoption. Our problem areas will almost certainly not be your problem areas. The constraints of judicial tradition and professional practice differ significantly from one nation to another.
Nevertheless, Australian judges have learned much from studying practices in other nations, particularly from the United States. I am aware that judges of other nations have said that they have profited from the Australian experience. I refer, for example, to observations to that effect made publicly and to me by Lord Woolf, whose inquiry led to major reforms in the practice and conduct of civil cases in England and Wales and by members of the Hong Kong Chief Justice’s Working Party on Civil Justice Reform which reported in 2004.
I am aware that the courts of Malaysia have adopted case management principles. Much of what I have to say will be familiar to you. I will outline how civil cases are managed in my jurisdiction. I begin with some general observations about the judicial system in my State.
The Judicial Background
There are about 1,000 judicial officers in Australia. Approximately one third of them are in the New South Wales judicial system of which I am Chief Justice.
As is customary, the basic structure of the system is hierarchical with a Local Court, a District Court and a Supreme Court. There are also two specialist courts: the Land and Environment Court and the Industrial Court. A number of administrative tribunals are also involved in authoritative dispute resolution.
The Supreme Court has a trial division divided into two parts: the Common Law Division and the Equity Division. The former deals with cases involving personal injury, professional negligence, defamation and administrative law. The judges of this Division also conduct criminal trials for the most serious indictable offences. Other indictable offences are tried in the District Court. The Equity Division of the Supreme Court hears cases involving commercial law, corporations law, equity, trusts, probate and the family provisions statute. This judicial structure enables the Court to take advantage of the specialist knowledge of members of the private bar, from which the overwhelming majority of appointees to the Court still come.
The Supreme Court also has two appellate divisions. The Court of Appeal consists of judges appointed as appellate judges who hear civil appeals. The Court of Criminal Appeal, which usually comprises one appellate judge and two judges of the Common Law Division, hears criminal appeals from the District Court, the Supreme Court and the Land and Environment Court.
Judges are appointed by the Governor of the State on the advice of Ministers. There is no independent judicial appointments commission. The desirability of such a commission has been raised in recent years as a possible development. This proposal has had little support in the past, but that may be changing. There has been some recent controversy about judicial appointments, but not with respect to any appointment to the Supreme Court of New South Wales.
Judges can serve until the age of 72 and may be appointed as acting judges until the age of 75. A significant majority of judges practised at the independent bar. However, a number of solicitors and a few legal academics have been appointed to the bench.
An important institution in the New South Wales system, which is not replicated in other Australian jurisdictions, is the Judicial Commission of New South Wales. As Chief Justice I am ex-officio President of the Commission. It is comprised of a majority of judicial members, including the President of the Court of Appeal and the Chief Judge of each other court in the State. It also has a representative of the profession, alternatively nominated by the Law Society representing solicitors and the Bar Association representing barristers. There are three other members who do not need to have legal qualifications. In fact, at present, two do have such qualifications, although they are not practising lawyers.
The Judicial Commission has three quite distinct functions: judicial education; complaints about judges; judicial decision-making information.
The Commission co-ordinates the education committees of each of the separate courts. Traditionally, the Commission conducts orientation programmes, an annual court conference for each court and periodic seminars in each court. In the last few years a specialist judicial college in Victoria and a National Judicial College have been created. Both of those institutions have only educational functions. They do not have any of the additional functions performed by the Commission. As part of its educational function the Commission publishes a newsletter, a journal for the information of judges and, periodically, books of articles and addresses.
The second key function of the Judicial Commission is the processing of complaints about judges and their conduct. The Commission has published guidelines about the way it processes complaints. The practical operation of the complaints function of the Commission has led to remarkably little in the way of public controversy. The overwhelming majority of complaints are dismissed. Most of them are no more than complaints by litigants who do not believe that they should have lost.
After its preliminary investigation the Commission may come to the view that the complaint is capable of leading to a recommendation to the Parliament to consider dismissing a judge. In such a case the Commission must appoint a Conduct Division, which is a panel of three judicial officers specially appointed for that particular investigation. If a Conduct Division recommends removal of a judge, then its report is tabled in Parliament and this may trigger the formal constitutional mechanism for dismissal. In the history of the Commission there has been one such recommendation considered by Parliament, but not accepted by it. Subsequently, the particular judge retired.
Other jurisdictions in Australia have not adopted such a formal mechanism for handling complaints. Although there was some judicial criticism of the establishment of the Commission, after almost 20 years of operation, I am unaware of any New South Wales judge who remains critical of the system. To some degree that is because of the combination of the complaints function with other functions performed by the same Commission, which other functions the judiciary regards very highly.
The third function of the Commission is to compile information and maintain databases to assist in the decision-making task.
The Judicial Commission produces bench books for the different courts. The bench books are compiled and kept up to date by a Committee of judges and former judges, serviced by the Commission. A Criminal Law Bench Book for the higher courts outlines and summarises the requirements of a criminal trial, notably directions to juries. The Local Court Bench Book covers the full range of its jurisdiction, both Criminal and Civil. A civil bench book is being prepared for purposes of assisting judges in conducting civil trials in the superior courts. The Equality Before The Law bench book is a resource available to all judges to help them deal effectively and fairly with the special requirements of some categories of persons who appear in the court as litigants and as witnesses, e.g. indigenous Australians, ethnic or migrant groups, persons with different religious affiliations, persons with disabilities, children and young people, women and other particular sections of the community. The Commission also publishes a Sentencing Manual setting out in considerable detail the legislation and caselaw about sentencing for crime. All these publications are available in hard copies and online. They are publicly available and used by members of the profession.
The Commission provides an online Judicial Information Research Service (JIRS) which gives instant access to legislation and caselaw for criminal proceedings and sentencing statistics, which provide comprehensive information to judges on patterns of sentencing for particular offences. The sentencing database is used on a regular basis by all practitioners and judges – generally around 2000 hits per month. It has been widely accepted in a number of international inquiries as representing world best practice in the field. The Commission has assisted, and is assisting, a number of other jurisdictions to compile their own sentencing information systems, based on software developed in the Commission.
Throughout the common law world, over recent decades, the judiciary has accepted a considerably expanded role in the management of the administration of justice, both with respect to the overall caseload of the court and in the management of individual proceedings. This appears to be virtually a universal phenomenon. Judges intervene in proceedings to a degree which was unheard of only two decades or so ago. Courts are no longer passive recipients of a caseload over which they exercise no control.
I should, at the outset, distinguish between individual case management and caseload or caseflow management. The latter does not focus on particular cases. Its concern is the overall caseload encompassing delays in the system for cases generally as well as costs which the system imposes on the parties to particular proceedings. Managing individual cases efficiently is a necessary, but not a sufficient condition, for effective management of the caseload.
There is no inconsistency between the expanded managerial role for the judiciary and the essential requirements of an adversary system. Notwithstanding the historical hands off approach by the judges which allowed the legal profession to conduct cases in accordance with their own wishes and interests, such complete freedom is not an essential feature of an adversary system. What is essential is that the process result in fair outcomes arrived at by fair procedures and that the overriding test of judicial legitimacy – fidelity to the law – is served.
There is a public interest in ensuring that the limited resources available to every sphere of government are spent effectively and efficiently. That includes expenditure on the administration of justice. If judges want to retain control of the operations of their courts, then they must be prepared to be accountable for the resources entrusted to them.
Litigants who are dilatory in their preparation, or who otherwise take up too much of the court time, waste public resources and exacerbate the delays which other litigants have to suffer. It is perfectly appropriate for judges to take steps to ensure that litigation is conducted efficiently and expeditiously. Experience in many common law countries has led to the conclusion that these responsibilities require active involvement by the judiciary in the progress of litigation. Such matters cannot be left to the discretion of members of the legal profession whose competence varies so much and whose client’s interests or whose personal interests may not conform to the public interest in these respects.
One of the reasons why managerial judging has emerged is because of what economists would call market failure. In a market for legal services, where knowledge was perfect, clients would ensure that the cost of litigation would be minimised and reasonably proportionate to the value to them of success in the litigation. However, there is a substantial disparity in the knowledge of clients and that of their lawyers with respect to the process of litigation, a disparity which economists would call information asymmetry. The requirements of specialised skills and the complexity of the process of litigation are such that clients are not able to assess the quality of, or even the need for, a legal service before it is purchased. Those difficulties persist even after the service has been purchased. This kind of market failure explains a number of aspects of the legal profession. Managerial judging offsets this form of market failure.
On the other hand, it must be acknowledged that case management imposes costs on the parties. Case management must attempt to minimise the number of appearances in court and to restrict adjournments. In contrast with civil law systems, common law procedures prepare cases for a single continuous trial. This avoids the inefficiencies involved when judges and practitioners have to familiarise themselves with a case more than once.
I should note that pre-occupation with disposal of cases may lead to compromises in the quality of justice. It is of great significance for the judiciary not to give individual litigants the impression that the case that really matters to the judge is the next one.
There is a story about a micro-economic reformer, pre-occupied with his statistics, who discovered that a Mozart quartet takes as long to play in the year 2006 as it did in 1806. In short, in 200 years there had been no productivity improvement whatsoever. He was, of course, convinced that this could only occur if there was some kind of anti-competitive conspiracy amongst professional musicians.
Some things take time. Justice is one of them. A focus on processing cases must not lead to the result that the quality of justice is compromised by the focus on quantity.
New South Wales Practice
New South Wales practice with respect to civil case management has been a story of gradual development over a long period of time. There has never been a dramatic rearrangement of practice and procedure of the character that followed Lord Woolf’s Access to Justice report in the United Kingdom. In New South Wales what happened was that a particular kind of practice developed in one specific area and was adopted in other areas.
The principal driving force for case management – particularly caseload management – was the acceptance that delays in the system were too great. Justice delayed, as is often said, is justice denied. Of course, not all lapse of time can be called “delay”. In New South Wales we have now adopted, by statute, a formal objective of expedition which contains a definition of delay as the time beyond that which is reasonably required for the fair and just determination of the case.
The implementation of case management techniques over the last two to three decades coincided with two important developments in civil litigation in New South Wales.
First, the gradual disappearance of the civil jury. Two or three decades ago juries were a common way of determining civil disputes. Now they are rare.
The second development, related to the first, was the replacement of oral testimony with written testimony, either in the form of statements or, more usually, affidavits. Except in cases where issues of credit are of central significance, this is now the customary way in which evidence is given although, usually, there is oral supplementation of the evidence in chief prior to cross-examination.
I do not wish to suggest that the oral tradition of the common law has been abandoned, but it has been significantly modified.
We do not have what the Americans call a “docket system” under which cases are assigned to the judge who will conduct the trial for management. Other courts in Australia use a docket system as, I understand, is also the case in Malaysia to some extent. There are arguments for and against the two approaches and what is right for one court is not right for another. I will be frank and say to you that, in my opinion, if New South Wales were to adopt a docket system the productivity of our courts would significantly decline.
Not all judges are as capable, or as willing, to manage a list as one would wish. In our system, case management is done by judges with an interest in, and an aptitude for, organisation. Judicial time is wasted if the gaps caused by settlements and adjournments are not filled quickly.
Our principal focus is on the caseload, not on the individual case. We adopt a top down approach rather than a bottom up approach. Effective and efficient use of resources, in our experience, requires something more than managing individual cases for trial. It requires an overview which, in our experience, is best down by disaggregating the caseload into distinct categories which require different treatment based, to a significant degree, on specialised law and specialization amongst legal practitioners. Most case management systems involve some system of differentiation, often called “tracks”. The New South Wales system involves a greater number of categories or “tracks”, but it works in our system because of our particular caseload. Each jurisdiction will differ in this respect.
The origin, and still in many respects the driving force, of the practice and procedure in New South Wales for individual case management and, to some degree, caseload management, was the special treatment always given to commercial cases. Originally we modelled our practices on the Commercial Court in England established in 1895, because a particular case was so mishandled by the trial judge that years of criticism by the London commercial community was brought to a head.
Mr Justice Lawrance had been appointed by Lord Halsbury for his services to the Conservative Party, not for any legal skills. His only distinction was that he was the tallest man in the High Court and was familiarly known as “Long John Lawrance”.
Justice McKinnon would later describe him: “A stupid man, a very ill-equipped lawyer, and a bad judge. He is not the worst judge I have ever appeared before: that distinction I would assign to Mr Justice Ridley; Ridley had much better brains than Lawrance, but he had a perverse instinct for unfairness that Lawrance could never approach”.
There was a legal dispute about how the rules for expenditure on salvage would be spread over the various owners of a cargo. Having listened to argument of counsel highly experienced in the field, Lawrance reserved his judgment for a period of six months until he was reminded about the case. He returned to court and commenced to deliver an ex tempore judgment in which he periodically stopped to ask counsel what the issues were, described the issues in terms which indicated he did not understand their replies, and had to be reminded at the end that he had not dealt with the more important issues in the case at all.
The junior counsel in the case, the future Lord Justice Scrutton, already the author of the first edition of his work on Charterparties would later anoint Lawrance “the only begetter” of the Commercial Court.
The 1895 English model was quickly adopted in New South Wales in the Commercial Causes Act 1903. The commercial legal community of Sydney celebrated the centenary of this legislation at a dinner in 2003.
The basic purposes of our 1903 Act are still valid today. The Act empowered a judge to require the parties to identify the real issues in dispute at an early stage and to dispense with the normal rules of practice and procedure and of evidence in order to ensure the speedy determination of those issues. These objectives have not changed.
The legal historians amongst you will recollect that the early common law in medieval times had a technique for determining the process of litigation by what was called peine forte et dure. This was a mechanism by which a litigant would have stones heaped upon his or her body, until he or she either pleaded or died. This was an early form of case management and is an abiding model for commercial case management.
The Act and Rules
The starting point for our caseload management and case management systems is comprehensive legislation and rules which enable the court to effectively manage its caseload. The rules have been progressively developed over the course of some two decades.
The relevant statutes and court rules have recently been consolidated and applied uniformly to all three New South Wales courts by the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005. After a process of collaboration amongst the three courts, under judicial leadership with considerable input from departmental officers, we have adopted a uniform Act and uniform set of Rules of Civil Procedure applicable to all courts. These Rules are sufficiently flexible to allow for the differing requirements at the three levels of the hierarchy. The Act and Rules integrated existing practice. This did not involve significant change to past practice. The key reform was in the uniformity. This achievement would have been delayed if significant changes had been proposed.
The Rules are backed up by detailed Practice Notes with respect to the conduct of proceedings, particularly the conduct of proceedings in specialist lists. Although the basic rules are uniform, at the three levels of the court hierarchy practices differ, so that matters are treated with greater expedition in the Local Court than in the District Court and in the District Court than in the Supreme Court. Cases of greater legal or factual complexity are distributed upwards in the hierarchy of courts, with a view to ensuring that those which do not justify elaborate procedures are dealt with in a less elaborate way and vice versa. Obviously there remains considerable overlap and drawing a clear line is not always possible.
The first statutory provision to which I should refer is the Legal Profession Act 2004. That Act requires that a legal practitioner, before filing a pleading – whether for a plaintiff or for a defendant – must certify that, “there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law” that the claim or the defence has “reasonable prospects of success”. This section reinforces the traditional professional obligation of legal practitioners that they must not permit the commencement or continuance of baseless proceedings.
The Civil Procedure Act 2005 and the Uniform Civil Procedure Rules confirm and re-enact the powers of courts to confine a case to issues genuinely in dispute and to ensure compliance with court orders, directions, rules and practices. When exercising any power a court is required to give effect to the overriding purpose expressed in the Act, namely: to facilitate the “just, quick and cheap” resolution of the real issues in the proceedings. Our terminology “just, quick and cheap” is more blunt, but to the same effect, as the “objective” identified in your own Rules of the High Court (Order 34 r 4(11)).
Under our Civil Procedure Act, parties have a statutory duty to assist the court to further this overriding purpose and, therefore, to participate in the court’s processes and to comply with directions and orders. Furthermore, every legal practitioner has a statutory duty not to conduct himself so as to cause his or her client to breach the client’s duty to assist.
Our new Act and Uniform Rules, which distill in a coherent manner the principles that have been developed over many years of practical operation of the previous legislation and court Rules, identify the objects of case management as follows:
- The just determination of proceedings.
- The efficient disposal of the business of the court.
- The efficient use of available judicial and administrative resources.
- The timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the parties.
The Act also requires the practice and procedure of the court to be implemented with the object of eliminating unnecessary delay, as defined. Furthermore, court practices and procedures are required by the Act to be implemented with the object of resolving issues, so that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute.
In order to serve the overriding purpose, and to meet the other objectives specified, the courts are given a comprehensive range of powers including:
- Power to direct parties to take specified steps and to comply with timetables and otherwise to conduct proceedings as directed.
- Powers with respect to the conduct of the hearing, including limiting the time that may be taken in cross-examination, limiting the number of witnesses, limiting the number of documents that may be tendered, limiting the time that may be taken by a party in presenting its case or in making submissions.
- Powers are to be exercised subject to the requirements of procedural fairness and are to take into account a range of relevant matters, including the subject matter and the complexity or simplicity of the case, the efficient administration of court lists (including the interests of parties to other proceedings before the court) and the costs of the proceedings, compared with the quantum of the subject matter in dispute.
- The court is empowered at any time to direct a solicitor or barrister for a party to provide to his or her client a memorandum stating the estimated length of the trial and estimated costs of legal representation including costs payable to the other party if the client was unsuccessful.
The Act provides for costs to be ordered against a legal practitioner, where costs have been incurred by reason of serious neglect, incompetence or impropriety. Such costs orders have been made, albeit infrequently.
These powers are exercised in a context where the basic system remains an adversary system. Nevertheless, their existence and their periodic exercise or, more usually, threatened exercise, has promoted cultural change amongst practitioners. This change has been reinforced by the adoption of ethical rules requiring practitioners to conduct litigation efficiently and expeditiously.
In Australia, the second largest cost after legal fees is expert evidence. The rules make special provision for such evidence in an endeavour to control those costs and to regulate the delay caused by unnecessary disputation on such matters.
A code of conduct for expert witnesses has been adopted which each expert is required to acknowledge and follow. The code states that an expert witness’s paramount duty is to the court. It requires full disclosure of relevant matters in reports. Each party is obliged to make timely disclosure of expert reports and, in the case of late disclosure, cannot use the evidence unless there are exceptional circumstances.
A number of techniques have been implemented to ensure that expert evidence is given more efficiently. Parties are encouraged to agree on the appointment of a single expert, especially for particular matters which are not genuinely in dispute, e.g. quantification issues. Directions are given to require conferences of experts in order to identify areas of agreement and disagreement and requiring the preparation of joint reports which sets out these matters. A court may direct that such conferences occur in the absence of the legal representatives of the parties.
Furthermore, increased use is being made of the technique of having experts on different sides give their evidence concurrently under the direction of the judge – sometimes called “hot-tubbing”. Provision exists for court appointed experts, but that is not often done.
The courts encourage the use of alternative dispute resolution to resolve a dispute as early as possible and make detailed provision for mediation and arbitration. Earlier provision for neutral evaluation was not much used and has been removed. There has been an increase in the number of legal practitioners who are skilled in mediation and arbitration. Registrars of the Court have been trained as mediators and conduct mediations in the court. Unlike some other courts, judicial officers do not conduct mediations in New South Wales.
The Court has for many years had provision in its Rules for referring the whole or part of proceedings to independent referees. They are sometimes experts, e.g. engineers. They are often retired judges. This technique has been of great significance in ensuring the timely disposition of Commercial List cases, especially Construction List disputes, particularly cases in which technical expertise is required. It is also of significance where only some parties, or only some issues, in a wider dispute are subject to an arbitration clause. A person can be both an arbitrator and a referee and therefore resolve the whole dispute. Many referees are retired commercial judges, who also engage in commercial arbitration.
Notably, building disputes are brought to this Court’s Construction List from all over Australia. The referees we use are widely regarded as having particular skills. However, they operate under the supervision of, but with minimal interference from, judges of the Commercial and Construction Lists. Their reports will only be rejected or modified for very good reason, and this rarely occurs.
One counter intuitive innovation is the conferral of power on the court to compel parties to engage in mediation, even though they do not wish to do so. Our experience is that persons often assume a posture of refusing to engage in settlement discussions on the basis that they cannot lose. However, when ordered to do so, reluctant starters have frequently turned into willing participants in the mediation process. Many apparently intractable positions have modified in the course of a compulsory mediation with successful results.
Some of the Rules, in their practical application, have required changes in the culture of the legal profession. We have not always been successful in doing that. Nevertheless, there have been significant improvements in compliance with these objectives by the legal profession. However, this is a matter that requires continued vigilance by judges.
Court Organisation of Management
Different techniques are adopted for case management in different courts in New South Wales.
The District Court, a high volume civil jurisdiction, significantly focused on matters involving personal injury, requires litigants not to commence an action unless they are ready to proceed with it, save in the case of a time limitation problem. Thereafter the court insists on strict compliance with a timetable lodged at the outset of proceedings, with a view to listing a matter for hearing within 12 months of its commencement.
In the Supreme Court, cases are of a higher level of complexity and are managed in a number of different ways. Each of the divisions of the court, namely the Court of Appeal, the Court of Criminal Appeal, the Common Law Division and the Equity Division have their own registrars responsible to judges for case management.
Building on our long experience with the success of our Commercial List, cases of similar character are grouped by subject category and specialised Practice Notes set out in detail the requirements of the particular field. Each of these lists is managed by a judge, in conjunction with a registrar. The specialist lists in the Common Law Division are the Administrative Law List, the Criminal List, the Defamation List, the General Case Management List, the Possession List and the Professional Negligence List. In the Equity Division the specialist lists are the Admiralty List, Adoption List, Commercial List, Corporations List, Probate List, Protective List and Technology and Construction List.
The conduct of each of these lists is substantially assisted by the existence of user groups which are formed for consultation between the judges who administer the particular list and representatives of the profession who practice in the fields. The process of refinement of the Rules and Practice Notes is a continuing one, in which these user group consultations play a significant role.
A key objective of our case management is to ensure trial date certainty, so that litigants and their representatives know that if a trial matter is listed for trial it will be heard. Some over-listing is done in anticipation of settlements, and there are unfortunate occasions when matters have not been able to get on. We regard it as critical, however, that that does not become a regular event, so that practitioners refuse to settle on the basis that there is a real possibility that a trial date will be vacated.
The most important aspect of the ongoing management system is that it is conducted under judicial leadership with appropriate delegation to registrars. All cases are brought under court control at an early stage with an early return date. Most lists are managed by registrars who sit daily. Some specialist lists are managed primarily by judges who sit less frequently, generally weekly. Interlocutory matters requiring orders, rather than directions, are referred to judges, either those in charge of specialist lists or to the duty judge in each of the two Divisions of the court. I annex a detailed outline of the operations of the lists (Appendix 1) and provide a brief summary:
The Registrar of the Court of Appeal manages cases and generally allocates hearing dates upon being satisfied of the state of readiness of an appeal. Cases that are likely to occupy more than two days of hearing time are referred to a judge for case management before a hearing date is allocated.
The rules of Court specify the precise steps and timetables to be taken in the main categories of cases filed. Directions hearings are scheduled before the registrar to ensure compliance with and, where justified, any modification to those requirements.
Pursuant to the rules of Court, the registrar may exercise the powers of a single judge to determine motions, except in contested applications for a stay or injunctive orders and, in practice, applications for expedition.
Most proceedings determined by the registrar concern applications for extension of time, security for costs, challenges to the competency of proceedings, dismissal for want of prosecution and the giving of directions where default has occurred in compliance with the requirements of the rules or earlier directions. Motions where stays/injunctive orders are opposed and requests for expedition are sent to a referrals judge for determination.
The registrar confers with the President of the Court on a regular basis to discuss listings and the rostering of judges. Calendaring of sittings and the identification of specialized lists is planned on an annual basis, having regard to available judicial resources and the requirements of Judges to sit in the Court of Criminal Appeal.
The Registrar in Equity generally manages cases until they are ready to be placed in the call-over for the allocation of a hearing date. The registrar allocates hearing dates at call-over. The registrar determines all motions within her delegation.
Matters are referred to associate judges and judges in the following circumstances:
1. If a motion is beyond the delegated authority of the registrar it is referred to an associate judge, Duty Judge or Corporations Judge;
2. If an associate judge has the power to deal with a matter and it is ready for hearing it is allocated to the associate judge call-over for a hearing date to be set;
3. If a timetable has been breached on three previous occasions the matter is referred to the Duty Judge; and
4. If a matter has not been finalised after having been stood over on four or more occasions in order to allow the parties to have settlement discussions, the matter is referred to the Duty Judge.
The registrar and Chief Judge in Equity hold a weekly meeting to discuss case management issues and the general conduct of the lists.
In Common Law, except for the Professional Negligence List, the registrar manages cases in a similar way to the Equity Division. Similar criteria apply for referring matters to associate judges and judges of the Division. The referral mechanism for recalcitrant matters is less structured than in the Equity Division. The Common Law Division is in the process of settling caseflow management changes that will move it towards the Equity model.
In the Professional Negligence List the registrar case manages all cases until they are ready to be allocated a hearing date. All opposed applications are sent to the Referrals Judge. Recalcitrant matters are referred to the List Judge after three timetable defaults.
Caseload and case management is a matter that is regularly discussed in formal and informal meetings, including weekly meetings of the relevant list judges and by regular contact between the judge in charge of a particular list and the registrar administering the list under the judge’s guidance. A considerable body of statistical information is available about the caseload and the progress of individual cases. Judges with administrative responsibilities for Divisions and particular Lists are able to monitor the state of any part of the list, so that emerging problems can be anticipated and corrective action taken. Our present systems will be substantially enhanced when a new software system under development, called CourtLinkNSW, is fully deployed. (See Appendix 2.)
Cases are set down for hearing, usually three to four months ahead, in three different ways. The Common Law Division has a List Judge, a time consuming job undertaken for a year. The specialist lists of the Division feed into a monthly listing hearing before the List Judge where, with the assistance of the registrar, dates are allocated. In the Equity Division, the registrar acting in consultation with and under the supervision of the Chief Judge, has a daily general directions list and, every quarter lists all cases ready for trial and allocates hearing dates, usually three to four months ahead.
Traditionally, there has been a high rate of settlements in the Common Law Division. Accordingly, significant overlisting has occurred in that Division. Except for special fixtures, usually long cases or cases with special requirements such as overseas witnesses, cases are not allocated to a particular judge. Cases in this Division are fixed for hearing in the knowledge that a certain number of judges are available at that time. The system works on the assumption that there will be a significant number of last minute settlements, but this may be changing.
In the Equity Division, as in the Commercial List to which judges are specifically allocated, cases are set down for hearing before a specific judge. Settlements in the Equity Division and in its Commercial List have historically occurred with more notice than in the Common Law Division. Late settlements in that Division enable the judge to assist the Duty Judge, who deals with urgent matters, or to a call up from the Short Notice List maintained in the Division, being a list of short cases in which the parties have indicated a willingness to be ready on three days notice.
Commercial and Construction Lists
I have earlier mentioned the significance of Commercial List practice for the development of our case management practices. It was our first specialist list and is in many ways the model for other lists. The commercial pressure remains to ensure the just, quick and cheap resolution of issues genuinely in dispute between parties in commercial litigation. Commercial clients have witnessed dramatic changes in their cost structures over recent decades. They do not accept that litigation should be exempt from downward cost pressure.
Our Practice Note for the Commercial List, and for the jointly administered Technology and Construction List, continues to adopt innovations which, I am confident, will be influential on practice in other areas of litigation.
Rules and practice for these two Lists reject traditional forms of pleading. They make provision for an initiating Statement by a plaintiff and a Response by a defendant. These documents are required to set out in summary form:
- The nature of the dispute.
- The issues which are likely to arise.
- The contentions and response to contentions.
- The questions that either party considers are appropriate to be referred to a referee for inquiry and report.
- Identification of all attempts to mediate.
Matters in each List are actively managed by the judge in charge of the List. The management includes:
- Review of suitability for mediation or reference out or the use of a single expert or court appointed expert.
- Timetables for preparation for matters for trial are set in considerable detail at the first Directions hearing including:
- Filing of statements of agreed issues.
- Making of admissions.
- Appointment of single experts.
- Exchange of expert reports and the holding of conferences of experts.
- Filing of list of documents and provision of copies of documents.
- The administration and answering of interrogatories.
- Service and filing of affidavits or statements of evidence by specified dates.
- Directions about the use of technology in accordance with the court’s Practice Note encouraging such use.
Interlocutory motions and directions are heard in a running list on every Friday and otherwise as required. Use of technology often enables cases to be managed without the costs of attendance at court.
The most recent development in the List is the formal provision of a technique for limiting the costs of a hearing by the adoption of the system of Stop Watch Hearings. This method of trial involves the identification by agreement of the parties, of the total amount of time that will be allocated to a trial. Blocks of time are allocated to the respective parties and some time to the court.
The usual court order will allocate blocks of time to different aspects of the case, in accordance with the parties’ expectations but that is subject to variation as the trial continues. A party may allocate its time to whatever aspect it wishes, e.g. more time taken in cross-examination will leave less time for an opening or for oral submissions.
The objective of a Stop Watch Hearing is to achieve a more cost effective resolution of the real issues between the parties. It requires more intensive planning by counsel and solicitors prior to trial. The technique has been successfully used in commercial arbitration and I have every reason to believe it will work in commercial litigation.
Two to three decades ago backlogs in both the District Court and the Supreme Court were substantial. Delays of more than five years, often substantially more, were common. The backlog has been reduced dramatically in the District Court and more gradually in the Supreme Court.
The techniques for dealing with the substantial backlog were different from those required for ongoing case management. A range of techniques was required to achieve that position.
The first measure to clear the backlog was an increase in the jurisdiction of the lower courts and the transfer of significant numbers of matters from the Supreme Court into the District Court. The jurisdiction of the District Court was increased and, in motor vehicle cases, was made unlimited. A Supreme Court judge sat for many days reviewing all of the files, identifying a large number of matters in which no issue of complexity or legal difficulty arose so that they could be handled, appropriately, at a District Court rather than a Supreme Court level. Hundreds of cases were transferred and were disposed of by the more expeditious procedures employed in the District Court. Getting the distribution of the caseload in the hierarchy of courts right is an important way of achieving the most effective use of limited resources.
The second measure to tackle the accumulated backlog, was the appointment of additional judges, both full time judges and acting judges. The latter included the secondment of senior barristers as acting judges for limited periods of time, such as a few months. Questions of judicial independence arise in the case of active practitioners serving as judges. Once the initial breakthrough was made, the practice changed. Only retired judges are now appointed as acting judges. They continue to play a significant role in assisting the court to further reduce delays. The ability to call up experienced former judges, at comparatively short notice, also enables the whole list to be operated at a higher pressure so that when, as does happen from time to time, expected settlements do not eventuate, we do not need to vacate trial dates. Nevertheless, in the future the use of acting judges in our system will progressively diminish.
Furthermore, a considerable number of personal injury cases were disposed of by referring out cases which did not raise complex issues to arbitrators, generally from the private bar, to determine the disputes. This arbitral determination by experienced practitioners may not have provided the quality of justice of a hearing by a judge, but the complaints were few. This mechanism helped clear the backlog but is now only employed to a limited extent.
Acting judges played an important role in a particular technique of backlog reduction, which we called a “blitz”, in which a large number of cases of a particular character, especially personal injury cases, were listed together.
Each “blitz” was preceded by a series of listing conferences designed to ensure that cases were prepared for hearing. Throughout this period the court imposed requirements for greater pre-trial disclosure and strictly enforced a no adjournments policy.
The “blitz” technique involved sitting a substantial number of judges, including on occasions virtually the entire court, including appeal judges, to hear hundreds of cases in a short period of time. Cases were not listed for a particular day, but for a particular week, and were treated as a running list so that, whenever one case settled or was determined, the next case in the list was sent to the judge immediately. This approach provided considerable incentive for the profession to settle cases and enabled judges to dispose of substantial numbers of cases in a short period of time.
These days we only conduct “mini-blitzes” on particular kinds of cases when filings build-up. The technique of a “blitz” is used on particular matters, e.g. disputes under our Family Provisions Act, concerning alleged inadequacy of provision for family members in wills are conducive to the blitz treatment. For similar reasons, we tend to group cases on appeals which are concerned with the same legislative regime, e.g. our workers compensation legislation, so that judges can focus on the common issues that often arise in such a specialist area in a concentrated manner.
The combined effect of all these measures was such that, within a decade or so, the substantial delays of five years and more were reduced to a substantial degree. In the case of practitioners who genuinely want to get their cases on, there is no reason today why the case cannot be disposed of to final hearing within 12 months in the District Court and within two years in the Supreme Court. However, many cases are still taking longer than they should and the task of disposing of older cases requires continuing attention.
Nevertheless, delay is no longer a significant concern for civil justice in New South Wales. Now the focus of our attention has shifted to reducing costs, both the cost to the court and the costs incurred by the parties. There is no doubt that case management, which was essential to overcome delay, can increase costs. Decisions have to be made about how much management a particular case, or a particular kind of case, requires. This is an ongoing process.
To summarise, the essential requirements for the efficient and expeditious administration of justice are now well known:
(1) A court must monitor and manage both its caseload and individual cases.
(2) Management cannot be successful without judicial leadership and commitment.
(3) Procedures must be clearly established in legislation, court rules and written practices.
(4) Cases must be brought under court management soon after their commencement.
(5) Different kinds of cases require different kinds of management.
(6) The degree and intensity of management must be proportionate to what is in dispute and to the complexity of the matter.
(7) The number of court appearances must be minimised.
(8) Realistic but expeditious timetables must be set and, unless there is good reason, must be adhered to.
(9) A key objective is to identify the issues really in dispute early in the proceedings.
(10) Trial dates must be established as soon as practicable and must be definite, so as to ensure compliance with timetables.
(11) Alternative dispute resolution should be encouraged and sometimes mandated.
(12) Monitoring of the caseload must provide timely and comprehensive information to judges and court officers involved in management. Time standards may be useful in focussing the attention of all those involved.
(13) Communication and consultation within the court and with others involved in the litigation process is an ongoing process.
Of all the requirements, one is overriding. Unless there is judicial commitment to the process, it will not work.
The Court manages the flow of its cases from inception to completion in a number of different ways, and is continually looking to improve its processes and outcomes.
Caseflow management strategies are reflected in the Uniform Civil Procedure Rules, the Rules of the Supreme Court and the Practice Notes issued by the Chief Justice. The Judges, Associate Judges and Registrars work together to ensure that cases are resolved as efficiently and justly as possible.
Commonly, cases will be allocated to Registrars to establish the core arguments in dispute and determine when cases should progress to hearing before a Judge or an Associate Judge. A Registrar makes directions to ensure that the case is properly prepared for hearing. If an issue arises that falls outside the specified duties of a Registrar, the Registrar may refer that case to a Judge or an Associate Judge.
Overview by jurisdiction
Court of Appeal
New appeal cases are initially reviewed for competency and, if necessary, referred back to legal representatives to either substantiate the claim of appeal as of right, or seek leave to appeal. Applications for leave to appeal are examined to ascertain whether they are suitable for hearing concurrently with the argument on appeal.
Appeals are allocated a directions call-over date before the Registrar when a notice of appeal is filed. At that call-over, the appeal may be listed for hearing if the appellant has filed written submissions and the red appeal book. Case management may be ordered with respect to lengthy or complex appeals.
The Registrar case-manages and lists most appeals and applications for leave to appeal, however some cases may be referred to a Judge of Appeal for special case management. Urgent cases are expedited and can be heard at short notice, if appropriate. The Registrar in the Court of Appeal also deals with most interlocutory applications, except applications to stay judgments pending an appeal.
Mediation is offered to parties in appeals identified as capable of resolution by this process. Detailed statistics regarding the number of matters referred to mediation can be found in Appendix (ii).
Court of Criminal Appeal
Case management begins in the Court of Criminal Appeal when an appeal or application is filed in the registry. The appeal or application is listed for callover within two weeks of filing. Callovers are held fortnightly, although special callovers can be held in urgent matters. At the callover, the presiding Registrar will fix a hearing date and make directions for the filing and serving of submissions by the parties.
Generally, three Judges hear an appeal or application. The Chief Justice may also direct that more than three Judges sit on an appeal or application, particularly in matters involving an important issue of law. In some circumstances, the Chief Justice may direct that two Judges hear an appeal against sentence. A single judge hears sentence appeals from the Drug Court of New South Wales, and also deals with bail applications and other interlocutory applications in the Court.
Since 1 July 2002, pre-appeal management procedures have been implemented for sentence and conviction appeals to the Court of Criminal Appeal. Accused persons may initially lodge a Notice of Intention to Appeal, without specifying their grounds of appeal. The Notice of Intention to Appeal allows the accused person six months (or such longer time as the Court grants) to file an actual appeal. Transcripts and exhibits are now provided to accused persons free of charge to facilitate the preparation of an actual appeal.
The impact of these pre-appeal management procedures on disposal rates can be seen by comparison with previous years. For detailed statistical analysis of the effects these procedures have had on disposal rates, refer to the chapter entitled Court Operations.
Common Law Division
Case management in the Division begins when a summons or statement of claim is filed in the registry. Each Summons or Statement of Claim (with the exception of default matters) is given a return date before a Judge or Registrar and placed in a List. A Judge is appointed to manage each List, whilst the Common Law List Judge monitors all matters listed for hearing before a Judge. Registrars of the Division handle default matters administratively.
Common Law List Judge
The List Judge manages the progress of cases from Call-up until a trial judge is appointed. Judges and Registrars refer matters to the Call-up that are ready for hearing and a hearing date is allocated. At the Call-up, the List Judge considers a number of factors, including the availability of Judges, the type of matters, and estimates of duration, before listing matters for hearing.
The List Judge also hears any applications for adjournment. Justice Hislop was the Common Law List Judge in 2005.
Common Law Duty Judge list
The Duty Judge is available each day to hear urgent applications, including applications for interlocutory injunctions, during and outside normal Court hours when required. Judges of the Division are rostered to act as the Duty Judge for a week at a time during law term. A Vacation Judge is rostered during the court vacation to perform this same role.
The Duty Judge also conducts an applications list each Monday. The applications in this list are matters that cannot be determined by an Associate Judge or a Registrar. These matters include appeals from the Local Court under the Crimes (Local Courts Appeal and Review) Act 2001, applications for restraining orders, applications for declaratory relief, and applications to dispense with a jury. Matters are initially listed at 9am before a registrar to determine whether the application is ready to proceed. The Duty Judge may specially fix matters that cannot be heard on the Monday to later that week.
The Duty Judge determines interlocutory applications for restraining assets and issuing examination orders under the Confiscations of Proceeds of Crime Act 1989, Criminal Assets Recovery Act 1990, and Proceeds of Crime Act 1987 (Commonwealth). The Duty Judge also considers, in chambers, applications seeking authorisation of warrants, such as those made under the Listening Devices Act 1984.
Associate Judges’ list
The Associate Judges in the Common Law Division deal with statutory appeals from the Local Court (except under the Crimes (Local Courts Appeal and Review) Act 2001), the Consumer Trader and Tenancy Tribunal, and against cost assessors.
The Associate Judges also deal with applications for summary judgment and dismissal, applications for extension under the Limitations Act 1969, as well as opposed applications to transfer matters from the District Court. The Associate Judges may deal with other matters as outlined in Schedule D of the Supreme Court Rules 1970.
Matters allocated to the Associate Judges’ List are case managed by a Registrar daily at 9am. The Registrar refers applications to an Associate Judge when ready for hearing.
Lists of the Division
In addition to the above, the work of the Division is also distributed amongst a number of specialised Lists. These Lists (in alphabetical order) are:
The Chief Justice appoints a specific Judge to be responsible for the management of a List throughout the year. The Judges responsible for the management of a list during 2005 are detailed below.
- Administrative Law List;
- Bails List;
- Criminal List;
- Defamation List;
- General Case Management List;
- Possession List; and
- Professional Negligence List.
Administrative Law List
The Administrative Law List reviews decisions of government, public officials and administrative tribunals such as the Consumer Trader and Tenancy Tribunal. The Administrative Law List operates in accordance with the procedures outlined in Practice Note SC CL 3.
In 2005, Justice Hall was responsible for the management of the Administrative Law List, with the assistance of Justice Adams.
Applications for bail or to review bail determinations can be made to the Supreme Court under the Bail Act 1978 in respect of any person accused of any offence, even if the trial will not be heard in the Supreme Court. These applications are listed throughout the year, including during the court vacation. Common Law Division Judges are rostered on a weekly basis to determine these applications.
Arraignment hearings are held each month during Law Term. The aim of the arraignment procedure is to minimise the loss of available judicial time that occurs when trials are vacated after they are listed for hearing, or when a guilty plea is entered immediately prior to, or on the day of, the trial’s commencement.
The arraignment procedure involves counsel at an early stage of the proceedings. This allows both the prosecution and defence to consider a range of issues that may provide an opportunity for an early plea of guilty, or shorten the duration of the trial. The procedures for arraignment are detailed in Practice Note SC CL 2. Justice Barr was responsible for the management of the Criminal List during 2005.
Section 7A of the Defamation Act 1974 sets out the respective functions of the Court and jury in defamation proceedings. An initial hearing is held before a jury to determine whether the matter complained of carries the imputation alleged and, if it does, whether the imputation is defamatory. A separate, subsequent, hearing takes place before a Judge to determine whether any defence can be established and if damages are payable. This second hearing is only required if the jury determines that the matter complained of was defamatory.
The Defamation List was managed by Justice Nicholas during 2005. A Registrar assists by case-managing matters listed for directions. Practice Note SC CL 4 governs the operation of the List.
General Case Management (GCM) List
This List comprises all civil cases commenced by Statement of Claim that are not included in the Administrative Law, Defamation, Professional Negligence or Possession Lists. It includes money claims, personal injury claims, claims for possession (excluding land), breach of contract, personal property damage, malicious prosecution, and claims under the Compensation to Relatives Act 1897. These cases are case-managed by a Registrar who conducts status conferences, and final conferences. At the status conference, the Registrar gives directions to ensure the case is ready for hearing by the compliance date. The procedures associated with the running of this List are set out in Practice Note SC CL 5. Justice Hoeben managed the GCM List during 2005.
The Possession List deals with all proceedings for the recovery of possession of land. The management of the List encourages early resolution of cases through mediation, other alternative dispute resolution processes, or settlement. Case management is also used to clarify the real issues in dispute. Practice Note SC CL 6 applies to cases in this List. Justice Johnson was responsible for managing the Possession List during 2005.
Professional Negligence List
Claims against medical practitioners, allied health professionals (such as dentists, chemists and physiotherapists), hospitals, solicitors and barristers are allocated to the Professional Negligence List. Specialisation in the List allows the parties to focus on the real issues under dispute in these types of claims. A Registrar monitors cases at regular conference hearings. Conference hearings provide an opportunity for parties to discuss outstanding issues in the case, and provide a forum for mediation between the parties. Practice Note SC CL 7 applies to this list.
The Professional Negligence List Judge hears applications and makes directions according to the specific needs of each matter. Mr Justice Studdert managed the List during 2005. Justice Sperling assisted Mr Justice Studdert with the list until he retired in February.
Several general lists operate in the Equity Division to assist in managing the Division’s caseload:
- Expedition list;
- Short Matters list;
- Equity Duty Judge list;
- General list;
- Long Matters list, and
- Associate Judges’ list.
In 2005, two Judges were made available to hear expedited cases. A case is expedited when sufficient urgency is shown. When the application is granted, the Judge gives directions and monitors the preparations for hearing. The Expedition list Judges heard all applications for expedited hearings in 2005. The same Judge hears the case when it is ready to proceed. Mr Justice Young was the Expedition list Judge during 2005.
Short Matters list
Cases in this List are fixed for hearing before a Judge when judicial time becomes available at short notice. A Registrar maintains this List, which includes cases that will be ready for hearing with three days’ notice. These are mostly cases of a less complex kind that can usually be disposed of within one day. The Short Matters List is called over before the Expedition list Judge on the last Friday of each month immediately after the Expedition list.
Equity Duty Judge list
The Duty Judge mainly hears urgent applications, sometimes outside normal court hours. The Duty Judge also hears uncontested or short cases, Judges of the Division are ordinarily rostered as Duty Judge on for a two-week period. There is provision for the Duty Judge to fix an early hearing date for a case and engage in pre-trial management of that case. The Duty Judge would make use of this provision if he or she considers that an early final hearing would result in a substantial saving of the Court’s time. The work carried out by the Duty Judge is extremely varied and may include urgent applications by the Department of Community Services to intervene where a child’s welfare is involved, or property and commercial disputes.
Other cases are placed in the General list when set down for hearing (if commenced by a statement of claim), or when the Registrar considers the matter ready for hearing (if commenced by summons). Provide the estimated hearing length is less than six days and there are fewer than 100 matters already listed, the Registrar will place the matter in the next periodic call-over. At the call-over, the Registrar allocates a date for provisional hearing of the case, as well as a time for pre-trial conference, ordinarily before the trial judge.
Long Matters list
Matters in the General list are placed in the Long Matters list when the Registrar becomes aware a matter may require more than 6 hearing days. Parties are required to file a synopsis of facts of the case and the issues under dispute. On receipt of this synopsis and any other details required by the Registrar, the matter will be referred to a Judge who will then conduct case management hearings and fix the hearing date.
Associate Judges’ list
The work of the Equity Division Associate Judges includes dealing with contested procedural applications and conducting inquiries as directed by Judges. Their work also includes the hearing of most applications under the Family Provision Act 1982, the Property (Relationships) Act 1984, and certain provisions of the Corporations Act 2001 (Commonwealth). An Associate Judge conducts a monthly callover of matters, at which time a hearing date (usually in two months’ time) is allocated. An Associate Judge also handles weekly referrals from the Registrar, determining those that can be dealt with immediately, and adjourning the balance. The Registrar only refers matters where the hearing time is not expected to exceed an hour. More complex matters are listed in the next call-over of proceedings in the Associate Judges’ list. Urgent referrals, such as the extension of a caveat, may be made at any time.
Lists of the Division
The Equity Division’s caseload is also managed by allocating certain matters to specific Lists according to the nature of the claims. These Lists are set out below in alphabetical order:
The Chief Justice appoints a Judge to each of these Lists to bear responsibility for monitoring the List throughout the year. The Judges allocated to each List during 2005 are noted below.
- Admiralty List;
- Adoptions List;
- Commercial List;
- Corporations List;
- Probate List;
- Protective List; and
- Technology and Construction List.
The Admiralty List deals with maritime and shipping disputes. It is administered in the same manner as the Commercial List (see below). Justice Palmer had responsibility for this List in 2005.
This List deals with applications for adoption orders and declarations of the validity of foreign adoptions under the Adoptions Act 2000. Most applications are unopposed. Once all supporting affidavits are filed, a Judge will deal with the application in the absence of the public, and without the attendance of the applicants, or their lawyers. Unopposed applications require close attention for compliance with formal requirements, but there is little delay. A small number of contentious hearings take place in court in the absence of the public. Most of these relate to dispensing with consent to adoption. The Registrar in Equity deals with requests for information under the Adoptions Act 2000. Justice Palmer was the List Judge during 2005.
The Commercial List is concerned with cases arising out of transactions in trade or commerce. The caseflow management strategy applied to the running of this List aims to have matters brought on for hearing quickly by:
There is also adherence to the allotted hearing dates, and hearings are continued to conclusion, even though time estimates may be exceeded. Justice Bergin was the List Judge in 2005.
- attending to the true issues at an early stage;
- ensuring witness statements are exchanged in a timely manner; and
- intense monitoring of the preparation of every case.
A Judge sits each Monday and Friday to hear short applications under the Corporations Act 2001 (Commonwealth) and related legislation. The Registrar may refer applications to the Judge, with urgent applications to be heard on Friday.
The Judge will give directions and monitor preparations for hearing in longer matters, as well as in other complex corporate cases. Cases managed in this List are generally given a hearing date as soon as they are ready.
The Corporations List Judge during 2005 was Justice Austin, assisted by Justice Barrett.
The work performed by the Judges and the Probate Registry consists of both contentious and non-contentious matters. The majority of non-contentious cases are dealt with by the Registrar and Deputy Registrars. This includes the granting of common form probate where applications are in order and unopposed.
Both the Probate List Judge and the Registrars have procedures whereby some supervision is kept over executors in the filing of accounts, and ensuring beneficiaries are paid. This supervision is usually by way of “spot checks” or upon receiving a complaint.
In court, the Registrar considers routine applications, and applications concerning accounts. Should a routine application require a decision on a matter of principle, the application is referred to the Probate List Judge.
The Probate List Judge sits once a week to deal with complex applications. If an application can be dealt with quickly, it is usually heard immediately. Others are set down for hearing, normally within a month.
Contentious matters are monitored by either the Registrar or a Judge. Contentious matters commonly include disputes as to what was a testator’s last valid will. When these cases are ready to proceed, they are placed in the call-over list to receive a hearing date before an Equity Judge.
The Probate List Judge meets with the Registrars on a regular basis to discuss the efficient working of the List. Mr Justice Windeyer was the Probate List Judge during 2005.
The work of this List involves ensuring that the affairs of people deemed incapable of looking after their property, or themselves, are properly managed. The List also deals with appeals from the Guardianship Tribunal of NSW, along with applications (in chambers) by the Protective Commissioner for advice regarding the administration of estates. From July 2005, the Court also considers applications regarding missing persons’ estates and, in certain circumstances, may order that their estate be managed under the Protected Estates Act 1983.
Often, the issues under dispute in the Protective List are of a highly sensitive nature. The Court acknowledges this situation, and endeavours to be as flexible as permissible in handling these proceedings, with a minimum of formality. However, when there is a dispute which cannot be solved in this way, it is decided according to law.
The Deputy Registrar dedicated to the Protective List sits in court one day a week and almost all cases are listed in front of her. The Deputy Registrar may submit a case to be determined by the Judge without further appearance or adjourn a case into the Judge’s list. A Judge sits once a week to deal with any referred cases. Most cases are considered on the Judge’s usual sitting day as soon as the parties are ready. Longer cases, however, are specially fixed, usually within one month.
The Protective List Judge consults regularly with the Deputy Registrar to discuss the efficient working of the List. Mr Justice Windeyer was the Protective List Judge during 2005.
Technology and Construction List
Cases involving complex technological issues and disputes arising out of building or engineering contracts are allocated to this List. The List is administered by the same Judges and in the same manner as those in the Commercial List.
Regional sittings of the Court
The Court of Criminal Appeal sat in Newcastle and Albury during 2005. Several first instance criminal trials were conducted in the following regional locations in 2005: Bathurst, Dubbo, Griffith, Newcastle and Wollongong. Criminal trials will continue to be held in regional venues as required.
Civil hearings were held at regional venues by special fixture at the following locations during the year: Albury, Newcastle, Orange, Wagga Wagga and Wollongong.
All proceedings are managed from Sydney irrespective of where the proceedings commenced or the venue for hearing.
Alternative Dispute Resolution
Alternative dispute resolution is a broad term that refers to the means by which parties seek to resolve their dispute, with the assistance of a neutral person, but without a conventional contested hearing. The two alternative dispute resolution processes most commonly employed in Supreme Court proceedings are mediation and arbitration.
The option of dispute resolution through mediation is available for most civil proceedings pursuant to Part 4 of the Civil Procedure Act 2005. Mediation is not available in criminal proceedings.
A matter may proceed to mediation at the request of the parties, or the Court may refer appropriate cases to mediation, with or without the consent of parties. If the Court orders that a matter be referred to mediation, there are several ways in which a mediator may be appointed. Firstly, parties may be in agreement as to a particular mediator. Secondly, the Court may appoint a specific mediator, who may also be a Registrar of the Court. If parties cannot come to an agreement, the Court is responsible for appointing a qualified mediator from a prescribed list. This procedure is set out in Practice Note SC Gen 6.
The role of the mediator is to assist parties in resolving their dispute by alerting them to possible solutions, whilst allowing the parties to choose which option is the most agreeable. The mediator does not impose a solution on the parties. The Court made eleven of its qualified Registrars and Deputy Registrars available throughout 2005 to conduct mediations at specified times each week.
Settlement of disputes by mediation is encouraged in the Court of Appeal, and both the Common Law and Equity Divisions. Parties may derive the following benefits from mediation:
Even where mediation fails to resolve a matter entirely and the dispute proceeds to court, the impact of mediation can often become apparent at the subsequent contested hearing. Mediation often helps to define the real issues of the proceedings and this may result in a reduction in eventual court time and, consequently, lower legal costs.
- an early resolution to their dispute;
- lower costs; and
- greater flexibility in resolving the dispute as the solutions that may be explored through mediation are broader than those open to the Court’s consideration in conventional litigation.
While arbitration involves adjudication of a dispute by a third party, this adjudication is not conducted by the Court. Determination of a dispute regarding recovery of damages through arbitration is permitted under Part 5 of the Civil Procedure Act 2005.
The Chief Justice appoints experienced barristers & solicitors as arbitrators following a nomination by their respective professional associations. Arbitrators generally hold their appointment for two years and the Chief Justice may also reappoint the arbitrator.
By contrast with a mediator, an arbitrator imposes a solution on the parties (an award) after listening to the arguments and evidence presented.
A decision of an arbitrator becomes a final judgment of the Court 28 days after the award is given. Any party to the arbitration may apply for a rehearing, upon which, the matter is then reheard before a Judge.
|Paragraphs 1 - 2||CourtLink Aims and Objectives|
|Paragraph 3||CourtLink Implementation – On Track|
|Paragraph 4 ||Progress to date – laying the foundations|
|Paragraphs 5 - 9||Working with clients to develop eServices and eService Pilots|
|Paragraph 10||Implementing in the registry|
|Paragraphs 11 - 14||Working Together|
CourtLink Aims and Objectives
1. CourtLink will deliver:
- An integrated multi-jurisdictional court administration system supporting: NSW Supreme, District and Local Courts, Coroner’s Court, Children’s Court and the NSW Sheriff Office
- Web-based eServices to users of the courts
- A generic interface for electronic information exchange with Justice Sector Agencies
2. The CourtLink program aims to:
- Provide a range of services online that will reduce the cost of administering justice
- Standardise and simplify processes to attain a common approach across all jurisdictions
- Replace all current paper-based data exchanges between courts and Justice Sector Agencies with electronic data exchanges
3. Supreme and District Court Crime are currently in the Systems Integration Testing phase with activity progressing on track. The Civil component for Supreme and District Court is in the Development phase and is also on track.
|November 2005||Launch of eService pilots: Electronic Document Lodgement and Online Court||Delivered on target|
|April 2006||Costs Assessment, Supreme Court||Delivered on target|
|January 2007||Crime – Supreme Court and Court of Criminal Appeal ||On Track|
|February 2007||Crime – District Court||On Track|
|May 2007||Civil – Supreme Court and Court of Appeal||On Track|
|June 2007||Civil – District Court||On Track|
|May 2007||eServices Release 1||On Track|
|July 2007||Crime & Civil – Local Courts and Sheriff’s Office||On Track|
Progress to date
4. Laying the foundations
- A re-engineering of the litigation process
- A reduction in the number of forms used in criminal proceedings (from approximately 700 to less than 100)
- The synchronisation of civil rules and civil forms between the three main jurisdictions. The Civil Procedure Act 2005 and the Uniform Civil Procedure Rules commenced on 15 August 2005, introducing uniformity in civil processes for the first time
- Development of a legislative framework to implement electronic case management in courts.
5. An online document lodgement service has been piloted from November 2005. This facility enables legal firms to pay filing fees by credit card, to file documents electronically and then to download the document certified and ready to serve. The pilot is running in the Corporations List and the Possession List of the Supreme Court.
o Between November 2005 and August 2006 there have been over 1700 documents filed online.
6. The five firms using the service reported significant benefits in terms of time saved. The system was viewed as easy to use, straightforward and stable. All five firms experienced a staggered start due to resolving internal processes, and this has provide some good learning for the project team. The service standard adopted by the Supreme Court Registry staff, of returning the stamped documents within 2 hours, was very well received. The pilot’s success has resulted in demand from other firms using the Corporations and the Possession List, and the service is now available to them.
7. An Online Court facility that allows resolution of non-controversial interlocutory matters without the need to attend court has being piloted by Supreme Court Judges since April 2006.
- Justice Gzell in the Equity Division of the Supreme Court commenced using the virtual court from 31 July 2006 for directions hearings. To date Justice Gzell has successfully completed 14 such hearings on-line and is now looking to expand its use to all directions hearings under his jurisdiction.
- Associate Justice Macready will shortly commence using the same environment for some 80 claims under the Family Provisions Act
8. The design of the eServices products has involved workshops with members of the primary audience group, legal practitioners, and their involvement will continue throughout development, implementation and review.
9. The eServices scheduled for delivery in 2007 are:
File Document: The electronic filing of court documents
Online Court: A virtual courtroom for use in case management activities
Search Case or Court Listings: The electronic retrieval of the accessible electronic court record of a case
Search Listing: The ability for parties to search for listing dates
Buy Transcripts: which is the electronic ordering, purchasing and receipt of court transcripts
Transforming the user experience in the Registry
10. Phase two of CourtLink’s implementation saw the launch of the system into the Costs Assessment and related Finance functions in the Supreme Court of NSW in April 2006. This release allowed a ‘proof of concept’ test for the software. The system was very well received by staff. The next release will cover Supreme and District Court Crime in early 2007. Roadshows of the system with staff have been very positive with the system being given 9 out 10.
11. At every level, the CourtLink project is an exemplar of promoting a team approach to Justice sector service delivery.
12. The Governance structure has successfully engaged the Judiciary as champions of change in each Jurisdiction. Senior stakeholders meet weekly to manage progress and to set the strategic direction. Judges groups meet weekly to monitor progress and give input at a strategic level.
13. Legal Practitioners are involved in the development, piloting and review of eServices.
14. The Attorney General’s Department chairs the Justice Sector Information Exchange Co-ordinating Committee, comprising 12 NSW agencies and the Commonwealth Director of Public Prosecutions. This committee is leading the development of electronic data exchange with agencies who are integral parts of the justice system and with whom high volume, frequent exchanges of data occur. This electronic data exchange will mean that:
- Records held by relevant agencies will be updated as a result of activity in another justice sector agency. For example:
- When a court records sentence details, the criminal history held by NSW Police will be simultaneously updated
- The imprisonment details and warrant will appear in the records held by the Department of Corrective Services
- Bail details will be accurate and available where they are needed immediately, as will details of Apprehended Violence Orders
- There will no longer be a need to transport large quantities of documents between agencies.