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On solid foundations

News

Cite as: (2003) 77(6) LIJ, p.16

Chief Justice of the Victorian Supreme Court John Harber Phillips will retire in October after almost 12 years in the position. The LIJ spoke to the Chief Justice about his view of the past and his plans for the future.

The result of the rapid change that has swept Victoria’s justice system over the past decade can best be viewed through the Supreme Court office window of the state’s Chief Justice, John Harber Phillips.

In January 1992 – when Chief Justice Phillips began his appointment as the state’s top judge – the view from his office at the intersection of William and Lonsdale Streets was of run-down buildings housing a radio station and a hospital.

Now the view is of one of the most technologically advanced court buildings in Australia, the new County Court, and, across the road, the monolithic Melbourne Magistrates’ Court, built in 1995.

Further up the road are the new Children’s Court and the Commonwealth Law Courts, which opened at the end of the 20th century.

These buildings stand as monuments to the change – for the better – that has swept those courts.

The one constant throughout this edificial expansion has been the sandstone splendour of the Victorian Supreme Court building. While from the outside it seems the Supreme Court has been steering a conservative course, a peek inside shows otherwise.

Over the past 12 years Chief Justice Phillips, who reaches the compulsory retirement age of 70 on 19 October, has turned the Court from one with a heart clogged by a backlog of cases and an aversion to technology to one strengthened by a diet of efficient processes and more pro-active judicial involvement.

In her speech welcoming Chief Justice Phillips, then Law Institute president Gail Owen described problems within the legal profession stemming from “a cumbersome and slow-moving system which is labour intensive”.

“It will be during your stewardship that changes will need to be made. Some of them will be unpalatable to the profession and possibly to the Court,” she said.

Fast forward to the present day.

According to the federal government’s Productivity Commission Report on Government Services 2003, the Victorian Supreme Court finalised 97.3 per cent of all non-appeal criminal matters within 12 months. This compares with 79.3 per cent for New South Wales, which handled 81 fewer cases than its Victorian counterpart over the same period.

On the civil side, the Victorian Supreme Court finalised 73.3 per cent of cases within 12 months of lodgment compared to 69.1 per cent for the Queensland Supreme Court, which has a similar caseload to Victoria.

The Chief Justice is humble when asked about the efficiency gains the Court has made during his stewardship and defers to the opinion of others. However, he is more forthcoming when asked about the challenges that faced him in 1992.

“We had a large backlog of civil cases and the judges resolved on two efforts, which I think later became quite famous.

“The first was called the Spring Offensive. Every judge, except a judge in the Practice Court, for a month tackled civil lists. We worked in three teams of 10 and we disposed of, as I recall, well over 1000 cases and that broke the back of the delay.”

The following year the Chief Justice launched the Autumn Offensive, which disposed of the balance of cases.

The success of these offensives led in 1999 to the Supreme Court’s trial division being separated into three divisions: criminal, civil and commercial and equity.

This dovetailed with other reforms introduced by Chief Justice Phillips, including a mediation program in 1995 and the Pegasus Two program in 1998, which was designed to streamline trials by determining during the pre-trial stage which issues were not under dispute.

These reforms coincided with a massive upgrade in information technology for the Court, backed up by Practice Note 1 of 2002 which encouraged practitioners to use technology in a bid “to minimise the paper war”.

The Chief Justice also oversaw the establishment of the Court of Appeal in 1995 which replaced the Full Court of the Supreme Court.

These changes have played a large role in the Court being one of the most efficient higher courts in the country.

Chief Justice Phillips counts the Pegasus Two hearings as one of his proudest achievements.

“Criminal pre-trial hearings had been tried in a number of other jurisdictions in Australia and had been unsuccessful, largely because they were not attended by the actual trial counsel.

“What I proposed was that we hold all those hearings outside court hours because the barristers concerned with them are very busy people and they are in court usually every day. So we hold them before court in the morning or after court.”

He said the hearings have led to shorter trials and a more cooperative approach by the legal profession to running trials.

Leaders of the legal profession are full of praise for the work of Chief Justice Phillips.

Victorian Bar Council chair Jack Rush QC said the Chief Justice had successfully seen the Court through an era of enormous change.

“I think the Supreme Court is a better Court than what it was 12 years ago in the sense that under this Chief Justice there has been an effort to attract litigants back to the Court and I think that has succeeded,” Mr Rush said.

Barrister Jim Kennan SC, who as Attorney-General appointed Chief Justice Phillips to the role, said the Chief Justice had used his experience as head of the National Crime Authority and Victoria’s Director of Public Prosecutions to improve the efficiency of the Court.

“John’s always been a very efficient operator. He keeps his eyes very much focused on the wood rather than the trees,” Mr Kennan said.

“At everything he’s done he’s been very good in getting results.”

State Attorney-General Rob Hulls described him as a “Chief Justice of the highest calibre”.

Law Institute president Bill O’Shea pointed to Chief Justice Phillips’ involvement in many community organisations and issues, including the role of women within the legal profession.

“He’s anything but an ivory tower Chief Justice,” Mr O’Shea said.

This is echoed in the sentiments of Victorian Women Lawyers (VWL) convenor Jo Renkin who described Chief Justice Phillips, who is the group’s patron, as a brilliant mentor.

“He provides us with lots of wisdom about issues and he has also been a wonderful friend of the organisation and a wonderful supporter.

“I really think he has been a fabulous impetus behind the organisation in terms of us doing what we’ve done thus far. Certainly, without his input and support we would have been much the poorer.”

Chief Justice Phillips nominated his involvement in issues affecting female lawyers as one of the highlights of his time as Chief Justice.

He fondly recalled the first meeting of what would eventually become VWL. He said the meeting took place in a “hot little room at the Law Institute” with about five women lawyers.

His involvement has produced results, including a rise in the number of female barristers taking silk – in 2002 six of the 25 appointed Senior Counsel were women compared to just two for the rest of the country – and the number of female Supreme Court judges has risen from zero to three.

“I well remember a visit in 1992 by President Mary Robinson of Ireland and I introduced her to all the judges and she said to me, ‘Where are your lady judges, Chief Justice?’

“I said, ‘My wife said you would ask me that’.”

The Chief Justice has played a crucial role in organisations such as the Victoria Law Foundation, the Sir Zelman Cowen Centre for Continuing Legal Education, the Victorian Council of Legal Education and the National Institute of Forensic Science.

While Chief Justice Phillips is satisfied to talk about achievements, he is also keen to let the profession know that he has not slipped into caretaker mode.

He cited Mr Hulls’ Future Directions project, which will map out the long-term future of the Victorian justice system, and the formation of the Sentencing Advisory Council as important initiatives in which he would like to have input.

He said there were “some significant cases” yet to come before the Court of Appeal that he felt was his duty to preside over. This is good news for the legal profession which has long admired the Chief Justice’s preparedness to sit in court as much as possible.

He would also like to cement a special relationship between the Court and a court in Asia, similar to one that exists between the Supreme Court of Victoria and the French Court of Appeal in Bordeaux.

These are major issues that he hopes to have completed by the time October comes around.

While there is no argument over the vast improvements the Court has made over the past decade, the new Chief Justice will have to tackle some outstanding issues.

In November last year, Supreme Court Justice David Ashley made a speech to a Law Institute Suburban and Country Law Associations dinner that amounted to touting for business.

Justice Ashley told the dinner that judges of the Supreme Court’s Common Law Division were dissatisfied with the lack of substantial torts cases and the decline in circuit work.

When asked about the speech, Chief Justice Phillips said work had been under way for months on correcting those problems. Supreme Court Justice Bernard Bongiorno had accepted a brief from the Judges’ Council to work on the issue of attracting more work for circuits and was expected to report back in October.

“I have promised the country practitioners that even if there’s one case at a circuit a judge will come down and do it,” the Chief Justice said.

“In the past, the policy was that if there wasn’t a criminal trial a judge wouldn’t go down. That is no longer the case.”

The need to reduce costs and the costs of access for practitioners was another issue that needed to be addressed, according to Mr O’Shea.

“There are fees and other charges imposed on the Court at the present which for many practitioners could well represent a disincentive to use the Supreme Court, as opposed to the Federal Court.

“So there’s no doubt that the arrival of the Federal Court and its excellent facilities has put pressure on the Supreme Court in terms of the number of cases it’s attracting, both in number and quality.”

While the appointment of the next Chief Justice of the Supreme Court will not be made for some months, some names have been figuring prominently in the profession rumour mill.

The frontrunners include Family Court Justice Sally Brown, former human rights commissioner Susan Crennan QC and Supreme Court Justice Geoffrey Nettle.

Other names being mentioned include Federal Court Justice Mark Weinberg, Supreme Court Justice David Habersberger, civil libertarian Chris Maxwell QC and barrister Felicity Hampel SC.

However, views on who will make the shortlist of potential appointments has been complicated this time around by the announcement that the position would be advertised nationally. Advertisements appeared in The Age, Weekend Australian and The Australian Financial Review on 2-3 May.

Mr Hulls said the reason for this was to make sure the best possible people were considered for the post and that candidates outside the gender and cultural backgrounds usually handed judicial appointments had the opportunity to be considered.

In the meantime, Chief Justice Phillips continues to work as hard as he did in January 1992 to make the Court as good as it can be.

With the new County Court building facing him through his office window, he dismisses any notion of his Court building a new headquarters to match its lower court colleagues.

“Well, I love old buildings and this is a very, very pleasant place to work,” he said.

“I think it has been a great privilege to have worked as a barrister and as a judge in this building for nearly 40 years.”

Jason Silverii

Supreme Court Chief Justice John Harber Phillips

• Graduate of University of Melbourne
• Completed articles at Dooley & Breen, Solicitors
• Joined the Bar in 1959
• Member of Victorian Bar Council 1974-1984
• Took silk in 1975
• Member of Bar of England, Middle Temple 1979
• Became Victoria’s first Director of Public Prosecutions in 1983
• Appointed a Justice of the Supreme Court in 1984
• Appointed chairman of the National Crime Authority and a Justice of the Federal Court in 1990
• Appointed Chief Justice of the Supreme Court in December 1991
• Appointed by the Governor-General Companion in the Order of Australia for “services to the law, law reform, literature and the visual arts” in 1998

Victoria’s Supreme Court Chief Justices

John Harber Phillips QC is only the 10th Chief Justice of the Victorian Supreme Court since the Court was established in 1852.
The Chief Justices:
1.  Sir William a’Beckett (1852–1857)
2.  Sir William Foster Stawell (1857–1886)
3.  George Higinbotham (1886–1892)
4.  Sir John Madden (1893–1918)
5.  Sir William Hill Irvine (1918–1935)
6.  Sir Frederick Wollaston Mann (1935–1944)
7.  Sir Edmund Francis Herring (1944–1964)
8.  Sir Henry Arthur Winneke (1964–1974)
9.  Sir John McIntosh Young (1974–1991)
10. John Harber Phillips (1991–2003)

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