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State of the Victorian Judicature

News

Cite as: (2007) 81(7) LIJ, p. 25


Victorian Supreme Court Chief Justice Marilyn Warren delivered the inaugural State of the Victorian Judicature address on 22 May. The following is an edited version of her speech.

The most precious commodity any court has is judge time, and by this I do not simply mean the time a judge sits in court.

Judge time is made up of many components:

  • the time spent on court preparation;
  • the time spent in court;
  • the time after court in the process of writing the judgment; and lastly
  • “other” time.

This “other time” is made up of involvement in court management and administration, court committees (both internal and external), law reform processes and general extra curricular work such as speaking to the Bar, the profession, other courts, universities, professional groups and the public generally.

Included in the “other time” is judicial education. Judges recognise that they must keep up to date with the law, remain in touch with the community and its expectations and mix with their colleagues from other courts so as to share ideas and innovations.

Most judicial education in the Supreme Court is done in judges’ own time.

Roughly, based on internal surveys, I would estimate that most judges spend more than 20 per cent of their time on the “other” category.

Before that estimate is leapt on to suggest that if judges drop the “other” time category of the work there would be a 20 per cent increase in the available judge time, that is simply not so.

The “other” category is important and in some aspects, compulsory. For example, [judges serve on] the Adult Parole Board, the Forensic Leave Panel, the Council of Legal Education, the Council of Judges, the Judicial College of Victoria, the Victorian Law Reform Commission (VLRC), internal management committees, various user and consultative committees, extensive advisory committees, working parties and steering groups established with government with respect to court funding and resources.

In the past year the Supreme Court conducted an internal occupational health and safety survey of its judges. It is completing another on the masters.

Such survey work is probably the first of its kind in the world – certainly in Australia.

In summary, the survey revealed that all judges work long hours (some far too long), that judges’ workloads are unsustainable for health reasons and that steps ought to be taken to reduce the strain.

Significantly, the survey disclosed that the situation is not simply one of working long hours (many people in modern society have to do that) but it was the dangerous level at which judges are working on a sustained basis that was of concern.

This reality is borne out by retirements of judges before the compulsory age and often after the minimum service. This has particularly been the experience with appellate judges.

The Court has set internal steps to improve the quality of judicial life and, importantly, to ease the judicial burden by allocating reasonable time to write the judgment straight after the case finishes.

This is proving possible by the new practice directions that demand responsible time estimates from parties. The benefit to the community is that judgments are starting to be delivered in a timely way: for example, in commercial cases within six weeks, in the Practice Court either immediately, or within a week.

One phenomenon is apparent. The Court is shifting responsibility for the conduct of cases more towards the profession rather than the focus being entirely on the judge and his or her capacity to conduct the trial or preside over the appeal.

Recently, the state government announced funding for two additional judges and one master for the Supreme Court and two additional judges for the County Court. The funding is the beginning of the recognition by government of the importance of cases being heard, managed and decided as quickly as possible.

Victoria must be able to match up with its interstate and inter-jurisdictional comparators. Victorian citizens should be confident the serious criminal trials and appeals will be disposed of by prompt, energetic and sharp judges – not slow, tired and worn out judges.

Victorian business and litigators should be able to bring their cases to Victorian courts to be disposed of in the same way. There should be no need to resort to other jurisdictions save for jurisdictional reasons.

As a further measure to support and assist judges, the Supreme Court is developing, for consideration by government, a new status of senior judge whereby judges will not simply retire at 70 but, subject to agreement by the Attorney-General and the discretion of the Chief Justice, be able to stay on a part-time basis as occurs now on a common place basis in North America.

Of course, there are always judicial management techniques available.

The Victorian courts and tribunals have all embraced mediation, both external and court-based.

There is mediation now offered by the Court of Appeal. From top to bottom of the judicial hierarchy in Victoria, mediation is a primary judicial expectation.

I hope to explore other alternative dispute resolution (ADR) initiatives, including the effective Canadian technique of judicial dispute resolution, at least on a pilot basis.

We are also exploring other means of shortening cases. We have engaged with interest in the VLRC reference on civil procedure. The Supreme Court provided a detailed submission identifying the extensive arrangements already implemented by the Supreme Court that reflect the announced thinking of the review.

In many respects the courts are ahead of the reformers. Public statements are sometimes made to suggest that there is a lot more that could be done in courts to speed up court processes.

The fact is, most Victorian courts by varying means have exhausted their presently available court tools: mediation, wider ADR, varying levels of judicial management – in effect a docket or quasi-docket system, the application of the “rocket docket” approach of the District Court of Columbia in the US. There is not much left.

What we now have in Victorian courts is a tough rump of cases, about 3 per cent of cases started, that are hard fought, tough to decide and take a deal of judge time whether they are trials or appeals. These cases, from the judges’ viewpoint, are relentless.

Consideration of judge time also includes the changing nature of judge work, both at this time and in the near future. We see a different type of criminal and civil trial these days (and inevitably, different issues arising on appeals). Criminal trials have become longer and more complicated.

Ultimately, there is a limit to judges’ capacities.

The announcement of the VLRC of the endeavour to shift the burden, including the ethical responsibility, to the legal profession is welcome.

That said, it will still fall on the judge to ultimately enforce the goal. Business interests, governments, treasury officials, the media and most importantly the community, all express frustration sometimes at how long cases take. Their frustration should not be vented on judges.

In our democratic society we have an adversarial system: the case must be proved by the accuser or the claimant; the case must be decided by an independent party, the judge. The privilege of that system comes at a cost.

In the Supreme Court we have done almost everything we can within our power and there is a limit to what can be asked of judges.

To maintain and build a modern democratic society there are some basic prerequisites – the tangible essentials of adequate education, health, transport and economic infrastructure and the provision of those intangible elements such as competent and timely justice for all citizens.

In the latter case this prerequisite can only be delivered if there are sufficient judges to do the work.

Of course, if government commits to increased judges the courts must be accountable to the community.

This does not mean some crude accounting or auditing method that interferes
with judicial independence. It means at least two things.

First, courts collecting detailed data as to what they do, how long things take, how many things and the types of things they do and making that data publicly available.

Second, it means courts must demonstrate and engage in a dialogue with government and the community about what they do.

All Victorian judicial officers are proud of their institution and honoured by the privilege given to them to serve the Victorian community. We are universally committed to achieving the highest quality of justice for the community we serve.

Are there any obvious solutions to propose to government? [There is:]

  • expansion of the jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT) but with security of tenure for all members to ensure judicial independence; and
  • legislative provision to shift more of the litigation burden to the lawyers to give judges expanded legislative power to compel expedition measures in both civil and criminal trials.

Combined with appropriately increased judge numbers, these measures would see Victoria forge ahead in court systems.

Clearly linked to the timely dispatch of court business is the quality of judicial appointments made to the courts and tribunals and the quality of the advocates who run the cases before the courts.

It is essential that those appointed to busy trial jurisdictions bring the intellectual strength, experience, work capacity and personal commitment to fit in quickly and share the workload. Much is said these days about the importance of cultural, gender and social diversity in courts and tribunals.

Of course, diversity is important. However, in a context of the limited commodity of judge time, all judicial appointees ought to be capable of quickly sharing the workload competently and responsibly.

Unless government compensates for diversity by funding extra more experienced appointments to meet the time needed for more diverse appointees to be able to reach their full potential.

It is undesirable for the judge time of a competent, experienced judge to be further burdened or distracted by the training of an intellectually capable but inexperienced judge. Perhaps the solution lies in the appointment of part or full-time retired judges to be on hand to provide advice, training and counselling to new appointees.

These comments should not be interpreted as indicating the courts are currently suffering from the appointment of judges requiring such assistance.

If diversity rather than experience and immediate capability becomes the dominant factor in appointment considerations, extra judges would be required to maintain the existing work capacity of the courts.

However, even the most competent and experienced judges should be able to rely on the counsel before them. In cases, advocates owe a duty to the Court to assist it in doing justice, even if it means going against their clients’ interests. Sometimes, this obligation needs to be reinforced.

From a judge’s perspective, the highest quality counsel is important.

The Court of Appeal has repeatedly commented on the problems arising where inexperienced prosecutors and defence counsel appear in trials. It has also insisted on counsel fulfilling a supportive role to the Court on appeals. The Office of Public Prosecutions and Victoria Legal Aid have responded at both trial and appellate levels to the call of the Court.

Twenty years ago senior counsel generally appeared for both sides in major criminal trials, including homicide cases. Regrettably, that changed and seems now to be shifting back.

This is partly reflected in the numbers of Crown prosecutors who are senior counsel and the preparedness of senior members of the Victorian criminal Bar to accept the sometimes less well paid prosecution or defence brief because of their commitment to the administration of justice in this state.

It is often insufficiently recognised just how much the Bar and the profession contribute to the system for limited or, even sometimes, no reward.

If those barristers were not prepared to do so the system would break down. Equally, the Bar and the profession make a substantial contribution to the court system for no payment at all through what is called the pro bono system.

Given the numbers of unrepresented litigants in the Supreme Court alone, large slabs of judge time would be lost without the support of those barristers and lawyers. It is a benefit government reaps cost free because of lawyers’ commitment to the legal system that the Victorian community expects to enjoy.

I wish to conclude on three topics: information technology (IT), ADR and leadership.

Victorian courts and tribunals have been transformed in technology uptake in the past three years.

It is now expected that judges, staff and court users will have basic computer skills. Probably, the time is close when IT competence will be a prerequisite for judicial appointment.

Most courtrooms across the state now have computer access.

The County Court has excellent facilities and the Supreme Court is undergoing an upgrade to expand its IT capacity. It also has a world leading edge e-litigation practice direction.

In March 2008 the roll out of the Department of Justice Integrated Court Management System (ICMS) will commence, starting with the Supreme Court. The facility will match the courts with the profession and provide one stop electronic filing, electronic file management and enable even better data collection to better explain the court story.

Mediation is now accepted as part of the court system in Victoria. It saves immeasurable judge time and provides extensive savings to government.

Without mediation the court system would have collapsed. Given the success of mediation, the courts should have the confidence to pilot other methods of dispute resolution, in particular, in appropriate cases, judicial dispute resolution.

Given the impact of IT on courts, the challenge lies before us to find the next wave of innovation that will revolutionise the courts and tribunals as we know them.

As courts and tribunals become larger, the traditional structures of internal management and leadership become more cumbersome and provide a poor fit.

If I take the Supreme Court, its original legislation contemplated a council of judges (made up of four) who were responsible for administering the Court. The role of the Chief Justice was not defined and over 150 years was traditionally regarded as the leader of all but one among equals.

Contrast this with other jurisdictions where judicial roles, functions and governance are well defined.

In Victoria, there have been additions to Supreme Court legislation to describe the role of offices such as the president of the appellate division of the Court, the Court of Appeal and, also, the Senior Master. The Chief Justice’s function remains undefined

The Court will shortly expand to 37 judges and nine masters (who, possibly, in due course will become associate judges) – very different from the four judges who constituted the Supreme Court in 1852. Further, the legislation does not recognise the modern internal structures of the trial division and the roles of the principal judges.

In the County Court there is a similar brevity in the legislation even though there are soon to be 59 (together with five acting judges) constituting the Court.

By contrast, the legislation for the Magistrates’ Court and VCAT is more reflective of the size and complexity of those institutions. There are also the related jurisdictions of the Children’s Court and the Coroner’s Court.

In Victoria, each court functions entirely separately from other courts (other than on appeals or judicial reviews). It might be that government would wish to overview and modernise court governing legislation. Such a project may tie in with any consideration of court governance models.

I raise these matters under the rubric of leadership.

Generally, court leaders are not trained to be leaders. They come to lead significant institutions and are assumed to know instinctively how to perform. Judicial leadership in modern courts is challenging.

Recently, the heads of Victorian courts (the Chief Judge, the Chief Magistrate and I as Chief Justice) participated in a National Judicial College program for all Australian court heads.

The program was inspiring and innovative. A few weeks ago, with the support of the Department of Justice, the group of five leaders of the Supreme Court commenced a training program on leadership.

It involves the president of the Court of Appeal Justice Maxwell, the principal judge of the Criminal Division Justice Teague, the principal judge of the Common Law Division Justice Smith and the principal judge of the Commercial and Equity Division Justice Byrne and myself as Chief Justice.

The program involves our meeting and learning from leaders in government, the military, private enterprise, the community and other sectors as to how to improve our leadership roles and translate that improvement into the Court to facilitate the ongoing modernisation of the institution.

It is, we believe, the first program of its kind in any court, at least in Victoria.

The judiciary of Victoria is one of which all Victorian citizens may be proud. I hope these remarks assist discussion in the future development and improvement of the state of the Victorian judicature.


A complete copy of this address is available on the Supreme Court website at http://www.supremecourt.vic.gov.au

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