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Supreme Court reclaims jurisdiction


Cite as: (2004) 78(7) LIJ, p. 24

Marilyn Warren’s first six months as Supreme Court Chief Justice has been marked by a reinvigoration of the Court, typified by moves to re-establish long-dormant aspects of its jurisdiction. The Chief Justice spoke to the LIJ about the Court’s accomplishments and the goals that lay ahead.

The Supreme Court has begun the process of re-establishing parts of its criminal and civil jurisdictions with a number of major non-homicide trials to be heard in the Court.

Supreme Court Chief Justice Marilyn Warren said judges had already been allotted to a series of major drug, corruption and sex offence cases, the first of which will be heard by the end of this year.

One of the first examples of the impact of the Supreme Court’s desire to house more major non-homicide trials was the transfer of an important drug trafficking trial from the County Court on 19 May.

The trial of Carl Anthony Williams and George Williams was transferred to the Supreme Court after an unopposed application from the Director of Public Prosecutions (DPP) with a trial date set for 5 July.

The drug trial of a suspended police officer and one involving the captain and crew of a North Korean freighter will also be heard in the Supreme Court.

Speaking to the LIJ on 1 June to mark six months since her appointment, Chief Justice Warren said this re-establishment of jurisdiction has stemmed from the Court’s encouragement of the DPP to “look to this Court on the basis that it has the senior criminal judges in the state and we will endeavour to accommodate those trials”.

“The Director, as I understand it, is supportive of the larger, more complex, more difficult criminal trials other than homicide, being heard in this Court.

“That is now being seen with some of the presentments that have been filed.”

DPP Paul Coghlan QC told the LIJ that his office fully supported Chief Justice Warren in this initiative.

The Chief Justice has also received support from the Attorney-General’s Justice Statement, released on 27 May, which announced a review of the jurisdictional overlap of the Supreme and County Courts with a view to expanding the Supreme Court’s jurisdiction. (For more information on the Justice Statement, go to page 20 of this edition.)

Chief Justice Warren said the Court was also looking to attract more complex common law trials.

She said she had in mind cases stemming from recent tort law reforms and has issued an invitation to the legal profession to closely consider the Supreme Court.

“We consider that the more difficult cases should be heard in this Court and we certainly encourage the common law side of the profession to look at coming to this Court for the purposes of having their trial heard and disposed of very quickly.”

The Chief Justice said the judges of the Court supported the move to run more major criminal and civil trials.

This backing was important as the pressure to run such trials would fall on their shoulders. It is a factor of which the Chief Justice is keenly aware.

“Certainly there needs to be some careful planning and rationalisation of the workload of judges.

“But at the moment cases are moving through and the judges are working very efficiently. At this point we have not had a single case not allocated a judge.

“That is because of the sense of commitment by the judges and the masters to ensuring that we dispatch our work and provide certainty and timeliness to litigants.”

The Supreme Court’s aggressiveness in reclaiming dormant sections of its jurisdiction has been one of the characteristics of Chief Justice Warren’s first six months in the position.

After being appointed on 25 November 2003, the Chief Justice made it clear that it was not only her aim to have the Court regain the respect of Victoria, but also win the respect of the whole country as a court of excellence.

One of her goals was to act on a “very strong desire” from within the Court to preside over the most difficult and complex trials.

The fact that this goal has been achieved so early in Chief Justice Warren’s tenure points to her success in reinvigorating the Court.

She described the first six months as “a very exciting and energising time”.

“The reaction that I have received from within the Court, ... the Bar and from the profession has been very positive.

“Judges and lawyers are telling me that there is a feeling of change, excitement about the Court.”

This view is backed by Law Institute president Chris Dale, who said it was obvious the Supreme Court had been re-energised.

“What we are seeing is a very positive sign of all the judges of the Court pulling together and committing to change within that Court.

“We are also seeing some positive signs in terms of new appointments and a commitment of those newly appointed judges to that same common cause.”

Mr Dale said the legal profession was “listening keenly” to Chief Justice Warren’s message that the Court was open for business.

The Court under Chief Justice Warren has implemented some reforms to processes, the most significant of which has been the final directions procedure in the criminal division.

This requires the prosecution and defence to provide and agree on certain information at least a week before a trial to avoid the judge encountering delays on the first day of trial.

The procedure, which began in May, came from discussions with the Criminal Bar Association and the Office of Public Prosecutions.

Chief Justice Warren said the aim was to provide a better service to litigants and to be a more efficient Court.

“If the Court is being more efficient then inevitably it can increase the amount of work that it puts through and the speed at which it does that,” she said.

However, the Chief Justice’s view of what constitutes an efficient court differs from the bureaucratic view.

She disagrees with the traditional view that court cases can be treated as if they are a unit within a larger business unit. Current formula looks at the quantity of cases, but not the complexity.

Instead, she advocates the formulation of a new system to help both the Court and government keep track of efficiencies.

“There needs to be, I think, a value attributed to a particular case, such as a rating out of 10 or 100, as the case may be.

“A case can be attributed a score, which can be done by the trial judge for example, and then the value can be added up and over a period of time assessed.”

However, Chief Justice Warren is the first to admit even such a way of measuring cases would not be perfect as it was difficult, if not impossible, to give a definitive rating to a case.

In the meantime, the Chief Justice must make do with the formula in place and the resources at her disposal.

However, as part of the Justice Statement, the Attorney-General said the government would work with the courts to develop agreed models for managing court resources and new systems to improve service, efficiency and coordination between jurisdictions.

Chief Justice Warren said that while the Court has its full complement of judges – it was two short when she was appointed – that was not to say it did not need more.

The Court will have to deal with an increasing workload, part of which has been a result of the Court’s recent resurgence.

The workload includes an increasing number of criminal trials and a large number of common law trials that will need to be disposed of quickly because the plaintiffs are ill.

“We also have the inevitable substantial commercial trials that come through from time to time.

“We also have an ever-increasing workload with the Court of Appeal and we have trial division judges sitting in the Court of Appeal. The workload of that court is increasing.”

While the Court continues its resurgence and the legal profession looks on favourably, that does not suggest that everything in Chief Justice Warren’s first six months has gone smoothly.

She declined the opportunity to expand on her recent comments regarding the state government decision in April to disregard a Judicial Remuneration Tribunal recommendation to grant Victorian judges a 13 per cent pay rise.

In an early test of her will, Chief Justice Warren released a strongly-worded statement attacking the government’s decision. The statement had the backing of the heads of the state’s other jurisdictions.

The issue was eventually resolved when the state government agreed to grant judges a 6 per cent pay rise.

When asked whether the government’s handling of the pay rise issue affected the morale of the Court’s judges, Chief Justice Warren said she would say no more on the issue other than what was in her statement.

Chief Justice Warren’s first six months in office also coincides with the one-year anniversary of her speech to the Women Lawyer Achievement Awards on 15 May, which started the debate on inequitable briefing practices.

Then Supreme Court Justice Warren told more than 250 women lawyers and profession leaders that the situation for women barristers in regard to getting a fair share of senior court work had not improved and, in some areas, had deteriorated.

Her speech reignited the debate and has since led to nationwide reforms of briefing practices.

Chief Justice Warren said the Court has had discussions with the Women Barristers’ Association as to how it can better identify the gender profile of counsel who do work in the Court.

The Supreme Court has also provided assistance to Australian Women Lawyers (AWL) with a view to collecting data on an annual basis.

“The Court has provided assistance to AWL so that can be used as a national guide.”

While there is no timeframe on those briefing practices initiatives, Chief Justice Warren is keen to complete other tasks in the next six months.

She said that timeframe would include a crystallisation of the Court’s goals.

“That is, for example, if we are going to embark on a change to our listing practices, how that will be achieved?

“If we are to look at a change in judges’ workload, how that is best achieved?

“If we are to look at the resources available to the Court so that it provides a best practice, best standard service to the citizens of Victoria we need to set our goals and set out timeframes for the achievement of those goals.

“So I see the next six months as a time in which we will do that.”

As she sits in her Supreme Court office, Chief Justice Warren looks as determined and energetic as her first day in the position.

“It has been very demanding and very challenging and there have been unexpected difficulties along the way.

“But the six months has gone with breathtaking speed and I am looking forward to the next six months,” Chief Justice Warren said.

Jason Silverii


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