Laird, Cathy --- "Tackling cost and delay" [1997] LawIJV 30; (1997) 71(2) The Law Institute Journal 8

• Tackling cost and Delay
• Judge control of lists extended
• Response to Criticism essential

Tackling cost and Delay

Judge control of lists extended

unique litigation support group established by the Victorian Supreme Court aims to cut delays and cost in the general civil list. Headed by Chief Justice John Harber Phillips, the group manages all cases that do not fit into any of the Supreme Court's specialist lists.

The system, which began with cases issued from 1 November 1996, has seen judge control now extended to every list of the Court.

Input from practitioners has been crucial to the establishment of the new system. In a series of meetings with the Chief Justice and a group of judges, practitioners commented on what they would like in relation to the conduct of the general civil list.

The profession sought judge management of all cases, early identification of the trial date; two directions hearings; an appropriate place for mediation in proceedings and an assured place in the Court's planning for the opinions of the profession.

Chief Justice Phillips said the judges responded positively to the comments, firstly by accepting judge management of the cases in the general civil list.

To achieve that, the litigation support group was created, consisting of the Chief Justice, Justice Beach (judge in charge of the list), Justice Teague (who has been appointed judge administrator of the group and who will be working full-time at its activities for at least the next several months), Masters Evans and Kings, Mr Andrew Traves and the Prothonotary.

Early identification of the trial date will be achieved by a first directions hearing 42 days after first appearance.

"At that hearing, among other things, a date for a second directions hearing will be fixed. Because a trial will inevitably occur within eight to twelve weeks of that second directions hearing, at the first directions hearing the party will know the trial date," the Chief Justice said.

"To save costs - judges are constantly concerned at the cost of litigation - the first directions hearings will be conducted on the papers. Ordinarily it will not require the attendance of any practitioner."

The Chief Justice said mediation would be raised, not only at the directions hearing, but at every reasonable opportunity during the currency of the proceedings.

"The practitioners reported to me that mediation was particularly effective between the final directions hearing and the trial because the parties knew that if it wasn't successful, they had a trial on their hands."

To ensure continued involvement of the profession in the Court's planning, two user group meetings will be held each working year.

"At least 50 practitioners attended each of the two meetings already held, which was very gratifying, and I would like to say how much I appreciate the cooperation of the profession in this initiative. It has been very, very good and I think it augurs well for the future," the Chief Justice said.

It is hoped that most cases would be ready for fixing for trial within ten to eleven months of the first appearance by a defendant.

Most importantly for practitioners, a new rule requires that any case not entered in the litigation support group list by 1 July 1997 will be dismissed.

"The concept of a litigation support group is a first; there is no other group like it in Australia. It will require a very consider-able effort, including the services of a judge full-time for some months."

Chief Justice Phillips said the in problems of cost and delays confronted every superior court in countries where the rule of law prevailed.

"I believe in Victoria we have done very well in the matter of delay. Our elapsed times compare more than favourably with any other Australian court. But the judges have the matter of cost of proceedings under constant review - that's why we are look-ing to moves like having the first direct-ions hearing in the new system on the papers.
"Directions hearings, which are recognised throughout the world as the only efficient instrument of judge control, can be very expensive and we are trying to cut the cost of them. The concept of moment-um, keeping a case moving, is cost effective too.
"The Chief Justice of South Australia said when he retired recently that, after a lifetime in the law, he felt that the biggest shortcoming in the justice system was the way cost denied access to the courts for thousands of Australians and I agree with that.
"And so do the judges of this Court and that is why we are constantly looking at the cost of proceedings and trying to cut it down."

Chief Justice Phillips said studies had identified discovery and directions hearings as contributing the most substantial areas of cost to the proceedings in the civil sphere.

"Discovery is a very difficult problem. In America they have gone from ordering general discovery to ordering very limited discovery back to ordering general discovery again.
"When he was out here, Lord Woolf told me that one of the most thriving industries in London was the renting out of warehouses in which the documents for discovery were placed."

The Chief Justice said that although the Court had decided to continue with broad discovery, it would be kept under review.

"Our general aim will be to try to put some reasonable limits on discovery with provision always being there for broad discovery in appropriate cases.
"I think a lot of practitioners think 'some-where in that huge pile of documents there will be the document that will win the case for my client'. That is not unreasonable, but it's a problematic area.
"We are hoping that the papers direct-ions hearings will operate significantly to reduce costs, and looking to the future, we are looking to electronic systems which will enable a hearing to be conducted in an economical way."

The Chief Justice said the new system would help give momentum to cases.

"It is momentum, I believe, that will cut delay and cut cost and will probably enable practitioners to take on more work than they are currently undertaking."

CATHY LAIRD

Response to Criticism essential

Personal attacks on judges must be met "head on" or the justice system could be undermined, according to the Chief Justice of the Supreme Court.

Chief Justice Phillips says a previous judicial policy of not responding to personal attacks was wrong.

He strongly believes that while judges should not comment on government policy or criticism of a sentence, personal attacks are different and, unfortunately. are increasing.

The Chief Justice says the Court is just one of a number of institutions which have been under critical examination for the past 20 years.

And that is no bad thing. But those voicing the criticism have been greatly encouraged by a judicial policy which involved the judges saying nothing, how-ever uuiair or ill-informed the criticism, even saying nothing in relation to personal attacks on judges.

"I think the convention on which that was based was wrong. And if there was criticism about the way the Court operated which was unfounded or if a judge is personally attacked, I would respond to it. I did respond publicly to attacks made on the competence of the magistrates of the Children's Court.

"If they are not met head on, they will undermine our justice system."

Chief Justice Phillips says judges have frequently been subject to personal attack in America for years, causing great harm to the American judicial system.

"Personal attacks on judges, I regret to say, have occurred on a few occasions in England in the last eighteen months and it is starting to creep in here. In May, personal attacks on the president of the Children's Court in Western Australia were published."

The Chief Justice says he will not make public statements about government policies.

"I know some judges in other jurisdictions do that and it's not for me to approve or disapprove of them doing that. I'm sure they act as they think is right but I look at things differently.

"Sometimes, if a policy of the government affected the operations of the Court. it would be proper for the judges in their report which they make each year to the governor and which is tabled in Parliament to mention that matter, but that is a constitutionally correct way of doing it."

He feels it is important for the courts to communicate with the community and, to further that aim, speaks to community groups and encourages other judges to do the same.

He is also the patron and supporter of a number of groups such as the Victorian Women Lawyers Association.

"It is part of the Chief Justice's role and I hope I can say I am an active participant in the groups and not simply a formal patron. I do try, within the limits of the time I have, to play a part in their activities."

The Chief Justice says the profession has reacted well to the changes currently facing it.

"When I started at the Bar, our profession was a very tranquil one; changes to the substantive law and the way the courts operated were very infrequent, and then only minor. But in the past few years, there have been a series of major changes. My view is that the profession has reacted to them very well and positively." 

CATHY LAIRD