REPORT OF THE CHIEF JUSTICE OF THE

Document Sample
REPORT OF THE CHIEF JUSTICE OF THE Powered By Docstoc
					         REPORT OF THE CHIEF JUSTICE OF THE
            SUPREME COURT OF TASMANIA

                     ANNUAL REPORT 1998/99


This Report is the first to be prepared and submitted to the Attorney-General in
accordance with section 194H of the Supreme Court Civil Procedure Act 1932.
Section 194H, which came into effect on 24 November 1999, provides that the
Annual Report:

      "(a)    must include details as to the administration of justice in the
              Court during that year; and

      (b)     include any other matter that the Chief Justice considers
              appropriate."


THE JURISDICTION OF THE COURT

The Supreme Court of Tasmania is the highest court in the State. The Court
deals with civil and criminal matters, both at trial and on appeal, in the exercise
of both State and Federal jurisdiction. The Court deals with criminal charges
of the most serious nature and civil matters in respect of values in excess of
$20,000.


FULL COURT AND COURT OF CRIMINAL APPEAL

The Court hears appeals from single judges and is constituted by at least two
judges. There are four sittings of the Full Court and Court of Criminal Appeal
occupying 10 to12 weeks or approximately 25% of available sitting time. The
work load of the Full Court and Court of Criminal Appeal is steadily increasing
and additional time has had to be allocated to this type of work. Since the non-
appointment of a seventh judge in 1995 it has become more difficult to
constitute two benches of three judges from six available judges. Nevertheless,
there is currently no delay in hearing Full Court and Court of Criminal Appeal
matters and all cases which have been ready have been listed in the next
available sitting date.
                                        2


CIVIL JURISDICTION

The work of single judges sitting in the Civil Division is varied and comprises
civil actions at first instance, applications under approximately 92 statutes,
prerogative relief and lower court appeals from the Magistrates' Court or
statutory tribunals. The primary work of the Court is to hear and determine
civil actions in accordance with the law in a timely and efficient manner. Civil
lodgments, with the exception of debt recovery matters which do not affect the
work of the Court, have steadily increased in both complexity and numbers.
(Table 1). Since the introduction of the Magistrates' Court Civil Division Act,
which increased that jurisdiction to $20,000, debt recovery matters have
transferred to that Court. The expected transfer of civil lodgments in lower
personal injury and contractual matters has not occurred which has resulted in
no decrease in the real workload before the Supreme Court.

The Court first introduced case management in 1990 when the delay between
lodgment of certificate of readiness and court listing was unacceptable (22
months). Pre-trial case management has concentrated on ensuring that only
those cases that are ready are listed for trial and ensuring that the parties have
explored settlement. These initiatives, developed and coordinated by Mr
Justice Underwood, resulted in a reduction in the time from certificate of
readiness to trial to three months by 1994. Although the listing time is within
acceptable limits and substantially lower than any other State or Territory, the
time between certificate of readiness and trial has been steadily increasing (see
Table 2) and will increase further if it becomes necessary to divert some
resources from the civil to the criminal side of the Court's activities in 2000.


CRIMINAL JURISDICTION

The Court deals with criminal cases of a more serious nature and this
jurisdiction combines the types of cases that would be heard in intermediate
and Supreme Court jurisdictions in other States. The workload of this
jurisdiction has increased substantially since 1997 resulting in a backlog in
Hobart, Launceston and Burnie. The factors contributing to that backlog are
outlined in the Annual Report of the Director of Public Prosecutions in 1998/99
and I endorse his comments. The statistical data relating to Criminal Court
matters is provided in the Director's Report and I do not propose to republish
them.

The judges are actively working at reducing the backlog. In co-operation with
the Director of Public Prosecutions and the profession, the Court has
introduced pre-trial case management in criminal matters with a view to
manage more complex cases and to identify at an earlier stage pleas of guilty.
Criminal (Case Management) Rules will be introduced this year to provide for
status conferences, case management and pre-trial conferences.
                                        3


Notwithstanding these initiatives, I am concerned that the delays, particularly
in Launceston and Burnie, will be cumulative. Without the appointment of an
additional judge the provision of further criminal sittings in Launceston and
Burnie could only be achieved at the expense of civil sittings in Hobart, thereby
causing delays in that area.


NEW RULES OF THE SUPREME COURT

The current Rules were drafted in 1965 and were based upon the then Victorian
and English Rules. They have been substantially amended since that time. The
Civil Process Rules 1985 unsatisfactorily overlaid new procedural requirements
on the Supreme Court Rules. The late Mr Justice Zeeman and a sub-committee
substantially redrafted the Rules amalgamating the Civil Process Rules, re-
arranged the Rules into a more logical order and redrafted the Rules in modern
English. The Court owes him an enormous debt of gratitude for this task. The
Rule Committee and sub-committees have worked on these Rules through 1998
and 1999 and the principal editorial task has been taken over by Mr Justice
Crawford. The Rules are awaiting final drafting by Parliamentary Counsel and
will come into operation in early 2000.

The Rules contain two new procedural aspects:

 The provision of case management rules which will provide for case
  management from the time of filing a defence rather than management from
  certificate of readiness. This case management function will require
  additional court resources, but will bring the Court into line with best
  practice in other Courts and will ensure timeliness from an early stage of
  proceedings to disposal. It will be introduced initially to all non-personal
  injury cases, particularly complex commercial, partnership and building
  disputes.

 Mediation. Subject to the provision of enabling legislation the Court will
  have the power to direct mediation. The Rules will also formalise the
  mediation aspects of the Court and will integrate mediation into the case
  management principles of court process.


OFFICE OF THE MASTER

Shortly after the conclusion of the year under review Mr Richard Southee
retired as Master of the Supreme Court after 15 years' service in that capacity.
The large number of practitioners attending the ceremony to mark his
retirement attested the esteem in which he was held by the Court and by the
profession at large. Mr Stephen Holt replaced him in early September 1999.
                                        4


The functions of the Master will change with the introduction of the New Rules
in 2000. That position will be pivotal to the success of the case management
initiatives to be introduced that year as the judges considered it necessary for a
single position to co-ordinate and ensure consistency in directions.

The growth of criminal injury compensation applications has impacted heavily
upon the Master's workload. This function is not part of the work of the Court
and consideration should be given to transferring it to a more appropriate
forum.


MEDIATION

A pilot project of assisted dispute resolution was commenced in 1995. The
Registrar and Merrin MacKay, a legal officer, are actively engaged in assisted
dispute resolution of matters before the Court. This has been achieved within
existing resources.

Mediation provides a forum to resolve disputes without the necessity of going
to trial. It has proved extremely successful (see Table 3) and is integral to the
case management procedures of the Court. Pre-trial case management and
mediation have ensured that those matters that need to be litigated can be
litigated in a timely manner. The New Rules of Court will formalise these
procedures.


FINANCE

The budget and other financial aspects of the Court are reported in the
Secretary's Annual Report. I note three aspects concerning the finances of the
Supreme Court:

1.     The expenditure on courts has decreased as a percentage of the total
       expenditure of the Justice system and the expenditure of the Supreme
       Court of Tasmania is the lowest expenditure per head of population of
       any State or Territory (see Table 4).

2.     Management of the assets has been devolved to the Courts without
       sufficient transfer of funds to effectively maintain the fabric of the
       Courts. The Supreme Court buildings in Hobart, Launceston and Burnie
       are valuable State assets and it is counter productive not to maintain
       them to a standard to which they were built.

3.     Funding to pay jurors and witnesses' expenses was transferred to the
       Supreme Court recurrent budget in 1996/97. Prior to this time it was
       outside the budget of the Court. The number of trials and witnesses
                                          5


       called are largely out of the control of the Court and I consider it
       inappropriate that these items should be part of the recurrent Supreme
       Court budget.


TECHNOLOGY

The Supreme Court is well catered for by the infrastructure developments
which are part of the Department of Justice and Industrial Relations IT
development. All judges have appropriate access to PCs, email and internet
facilities. A number of specialised systems have been developed, including a
sentencing database, criminal injuries database, jury system and a civil registry
system. Because of its small size, development of systems that are available in
the larger States are not able to be developed in Tasmania. I am hopeful,
however, that funding will become available to develop a criminal case
management system to assist and evaluate the case management initiatives of
the Supreme Court, likewise, the civil registry system be enhanced to include
diary and case management functions.

Videoconferencing

Videoconferencing was introduced into the Supreme Court in Hobart in 1996.
The potential of these systems was soon realised. Government provided
funding in 1998/99 to extend those facilities to Launceston and Burnie and
further funding has been made available to provide a system in the civil courts
in 2000. The system provides substantial benefits to litigants and the justice
system in Tasmania. The system will be used for:

 Remand of virtually all prisoners in custody which will save the transport of
  prisoners for remand to the Courts in Hobart, Launceston and Burnie and
  provide greater security for the prison system.

 Hearing of evidence in civil and criminal cases from witnesses outside the
  Court area. This will mean considerable savings in costs to litigants,
  particularly for medical evidence.

 Directions hearing. Short hearings and pre-trial conferences will be
  conducted by videoconference. The Master will hear short interlocutory
  matters by videolink, giving the same level of service to practitioners outside
  Hobart.


OTHER JUDICIAL ACTIVITIES

In addition to sitting at first instance to try cases in eight sittings throughout the
year, each of 4 to 5 weeks' duration, the judges sit to hear appeals in four
                                        6


Terms of 2 to 3 weeks' duration. Each judge has had to preside at circuit
sittings away from his place of residence for at least two such sittings and in
some cases considerably more. Throughout the year the workload has been
such that, with few exceptions due to changes in place, settlement of cases or
adjournments necessitated by the non-availability of witnesses or the like
reason, the judges have sat on each day allocated for the transaction of business
by the Court. In addition, all of them have throughout the year participated in a
variety of law oriented activities such as the deliberations of the Board of Legal
Education, the University Law Degree Board, the Centre for Legal Studies,
interstate committees of judges dealing with harmonisation of Rules of Court
and Uniform Admission requirements and procedures, the governing or
steering committees of the AIJA, the Australian Judicial Conference and the
Annual Conference of Supreme Court and Federal Court judges. Contributions
have been made to law reform with comments on a variety of legislative
proposals in this area. Judges have given time to teaching advocacy and to
chairing, opening or delivering papers to a variety of legal conferences and
seminars. As already mentioned, the revision of the new Rules of Court has
involved each of the judges in considerable work as ex officio members of the
Rule Committee. The time available for research, judgment writing and
keeping abreast of legal thinking in the form of articles or decisions of other
Courts has been so far reduced that any increase in the work load may
jeopardise the timeliness and quality of judicial decisions.


EVALUATION OF COURT PERFORMANCE - FUTURE REPORTS

Governments, the public and the litigants have an interest in the efficiency at
which the Courts operate and courts should be accountable for public
expenditure. The development of appropriate measures of court performance
are complex and no agreed performance measurements have been developed in
any Australian jurisdiction. The number of lodgments gives little indication of
the real work of the Court. Timeliness measures used by a number of courts is
subject to a number of factors, including the matters before the court over
which the court has little control. These indicators give no qualitative
information about court performance. The Chief Justice of the High Court, in
his State of the Judicature address, 10 October 1999, indicated:

      "The most important measure of the performance of the court system is
      the extent to which the public have confidence in its independence,
      integrity and impartiality."

This is not to say that the courts should not develop performance criteria, but
each litigant is entitled to have the Court give his or her case the detailed
attention necessary to achieve a just result. We will continue to seek to identify
and implement methods of doing so more efficiently.
                                      7




STAFF

I express my appreciation and that of my brother judges for the loyalty, skill
and support of the staff of Judges' Chambers, the Registrar, Mr Ian Ritchard,
and the Registry staff. Progressive reductions in numbers over recent years
have pared staff to the absolute minimum and their cheerful acceptance of the
additional workload is to be highly recommended.




(The Hon. W J E Cox AC RFD ED)
CHIEF JUSTICE OF TASMANIA
                                                                                                                  TABLE 1
                                                        CIVIL 1989-99

               CIVIL LODGMENTS (TASMANIA) 1989-1999 CALENDAR YEAR

                         1989     1990     1991     1992       1993      1994   1995    1996     1997     1998     Est 1999

Debt                     1126     1476     1426     1166       1271      1425   1359    1371     1396     575          366

Personal Injury   549     583      649      885         910    1066       971    959    1067     1054      980

Possession                 92       80       94          71     135       209    222     418      559      377          98

Other                     166      171      154         128     127       109    141     192      164      135         104


Total                    1933     2310     2323     2250       2443      2809   2693    2940     3186     2141     1548




Applications              320      330      397         516     565       629    545     510      452      403         802

Lower Court Appeals        54       68       87         113     150       114    134     147      141      155         166

Court of Appeal    32      34       20       18          32         23     32     40      39       39       42




                                TOTAL CIVIL LODGMENTS BY CENTRE

                  1989     1990      1991         1992        1993       1994    1995     1996      1997         1998        Est
                                                                                                                             1999

Hobart            1524     2219      2225         2037        2376       2742    2617     2763      2902         2010        1960

Launceston        497      614       618          545         553        542     513      544       528          398         352

Burnie            na       na        na           411         374        417     414      460       479          394         382
                                                        9




                                                                                        TABLE 2

                        CERTIFICATE OF READINESS TO FINALIZATION
                                        HOBART

                       1989    1990   1991   1992   1993    1994   1995   1996   1997   1998   Est
                                                                                               1999

Awaiting hearing       140     171    154    146    107     62     37     34     46     37     66

New Certificates       166     157    198    147    122     86     103    128    82     150    138

Heard                  45      52     50     41     38      25     26     23     18     23     22

Settled                90      122    156    145    129     86     80     93     73     98     116

Average time           Not     23     22     9      7       3      4      4      5      7      8
Certificate of         Known
Readiness to listing
- months
                                                    10



                                                                                         TABLE 3

                            Personal            Personal           *Others            Total
                            Injury-Motor        Injury-
                            Vehicle             Industrial
1993/94
Conferences                 64                  18                 5                  87
Settled at conference       42                  10                 3                  55
Percentage settled          65%                 55%                60%                63%

1994/95
Conferences                 188                 64                 24                 276
Settled at conference       129                 40                 17                 186
Percentage settled          68%                 63%                71%                67%

1995/96
Conferences                 174                 95                 28                 297
Settled at conference       111                 63                 15                 189
Percentage settled          63%                 66%                53%                64%

1996/97
Conferences                 70                  32                 35                 137
Settled at conference       24                  11                 17                 52
Percentage settled          34%                 34%                48%                37%

1997/98
Conferences                 23                  39                 28                 90
Settled at conference       15                  20                 16                 51
Percentage settled          65%                 51%                57%                57%

1998/99
Conferences                 49                  89                 38                 176
Settled at conference       40                  46                 26                 112
Percentage settled          82%                 52%                68%                64%

* "Others" comprises testators family maintenance, building disputes and commercial matters.
                                                            11



                                                                                                       TABLE 4

                             EXPENDITURE ON COURT SERVICES


                             NSW             VIC        QLD            WA       SA       TAS      ACT      NT

Expenditure on Courts        104,185         51,798     45,426         27,355   29,794   4,923    5,886    6,854
(includes Supreme and
District Courts) $,000

Expenditure per head of      16.28           11.01      13.01          14.74    19.96    10.45    19.04    35.69
population

Source: Report on Government Services 1999
Table 7A.4, p508




Shares of government expenditure on justice services per person, 1997-98
                               NSW       Vic          Qld        WA       SA     Tas     ACT     NT       Aust.
                               %         %            %          %        %      %       %       %        %

Police services                67        78           66         65       67     78      70      61       67
Court administration           12        9            12         12       12     8       15      10       14
Corrective services            21        13           22         23       21     14      15      29       19
Total                          100       100          100        100      100    100     100     100      100

Source: Report on Government Services 99/00
12