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It's about time

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Cite as: July 2014 88 (07) LIJ, p.24

Concern about delays across the justice system led to a project and forum on timeliness. 

The Australian Centre for Justice Innovation (ACJI) director Tania Sourdin has an important message for those frustrated by delays in the justice system: timeliness is not only about time and speed. It is also about fairness, the perception of fairness and of having received justice.

While lawyers become focused on receiving a just outcome, clients may not regard it as just if it has taken too long, Monash University’s Professor Sourdin said.

“If it has taken too long many people don’t think the system is just. It’s a very strong statistical correlation,” she told LIJ. “What is relevant is not just the period of time they have been in the court system, but also how long it took them to get to the court system.”

The ACJI, a research and teaching centre established in 2011 by the university and the Australasian Institute for Judicial Administration – is undertaking a Timeliness Project. This resulted from discussions with funding provider Victorian Department of Justice identifying concern about delays across the justice system as a key issue.

Professor Sourdin says ACJI first compiled relevant literature. But, “we realised we were not necessarily looking at the issue of timeliness in the way it needs to be considered,” she said. “We were looking at whether courts and tribunals need time standards rather than what is needed in the context of each dispute.

“We said, what we need to do is define what timeliness actually is and step away from looking at it in the context of time standards which can be quite inappropriate. They are a very basic measure.”

While imposing time standards meant more matters had progressed quickly through the system, they did not consider actions taken before the matter reached the courts, nor time taken for a judgment.

The ACJI developed a background report about timeliness and the justice system – schemes and processes supporting dispute resolution before proceedings begin, plus those relating to the court and tribunal system. It considered what timeliness is and innovations and strategies used to improve it.

The report was the foundation of its mid-May forum, with a lineup of eminent speakers, most directing their addresses at the five groupings of strategies the report identified: use of obligations, including pre-action requirements; case management strategies and processes; use of technology; use of changed processes, including alternative dispute resolution; and resources.

Judge Philip Misso spoke about timeliness in the County Court of Victoria and Justice John Dixon looked at recent cases and s29 of the Civil Procedure Act. This allows the court to make orders in the interests of justice if an overarching obligation, such as ensuring costs are reasonable and appropriate, has been contravened.

Western Australia Chief Justice Wayne Martin spoke about delay as a kind of denial, saying the Supreme Court of WA had had no extra judicial resources for eight years, was expecting existing numbers and support staff to be reduced, inevitably with adverse effects on timeliness.

Victorian CEO of Relationships Australia Andrew Bickerdike, spoke about conduct obligations in family law ADR and international guest, Judge Kevin Burke of the National Center for State Courts, offered a US perspective on judicial leadership in achieving timeliness.

The project team has had close involvement with the Productivity Commission and its Access to Justice inquiry. Presiding Commissioner Dr Warren Mundy presented its draft report to the forum. Recommendations include facilitating greater use of ADR, improved processes to diminish need for legal representation at tribunals, adopting leading practice processes to streamline the court system and facilitating early exchange of information to reduce time and cost.

So what happens now? Professor Sourdin says improved qualitative data is needed. For instance, demographics of those using the court system are not collected, nor is the date a dispute arose, and there is no linkage of costs and outcome. “For example we cannot say how many people of income less than $100,000 use the County Court? Does it serve the needs of regional Victorians?”

Better sharing of ideas about effective innovations is needed. “It is very hard to translate anything across the system unless there is significant judicial leadership,” she said.

The project will publish “a considerably smaller final report with recommendations about data capture and innovation in specific areas. It will highlight some of the more prominent gap areas.”

These include better use of technology, for example, to gather data input by court users themselves, access to court and tribunal systems from outside and greater co-operation with the telecommunications industry.

Technology’s potential in timely dispute resolution was illustrated by Justice Peter Vickery in his speech about the Supreme Court of Victoria’s RedCrest electronic case management project (see “Red Crest saving time and money” p28). He said the full power of computers must be made to work to the advantage of the court practitioners and litigants. He warned computers aided and abetted the generating of gargantuan volumes of documents, increasing costs.

For further information or to read the forum speeches go to www.civiljustice.info/timeliness

Sue Green

What is timeliness?

The AJCI Timeliness Project background paper developed a three-part definition of this “complex and subjective concept”, which parties may define differently. It sought a definition referring to the broader justice system, not just court and tribunal processes, and not linked to the imposition of time standards.

It defined timeliness as the extent to which:

  • those involved in the dispute and within the justice system consider that every opportunity has been taken to resolve the matter prior to commencing or continuing with court proceedings;
  • processes are efficient and avoidable delay has been minimised or eliminated throughout the process on the basis of what is appropriate for that particular category or type of dispute; and
  • the dispute resolution process that has been used is perceived as fair and just and where adjudication within courts and tribunals has taken place, the outcome supports the rule of law.

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