A LARGE sign spelling AON atop a 12-storey office block glares over the ACT Supreme Court building on the other side of London Circuit. 
It should act as a reminder and warning. But the lesson has been forgotten and the warning ignored.
Three years ago, the High Court pasted the ACT Supreme Court for inexcusable delays an unnecessary procedural shuffling in a case fought between AON and the ANU.
Justice Dyson Heydon was moved to extraordinarily florid language for a High Court judge: “A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other.”
Lawyers had T-shirts and coffee cups specially made with those words emblazoned on them. Tragically, the ACT court system had become a national legal joke.
And it remains so. It has become so desperate that the ACT Bar Association has lodged a formal complaint with Attorney-General Simon Corbell about one judge. The Canberra Times reported last week that the judge was Richard Refshauge who reportedly has 20 cases with the judgment outstanding for more than 18 months, and one for nearly four years.
It is clearly unacceptable. Justice delayed is justice denied.
But Refshauge is just the worst of a poor lot in comparison with their NSW and Victorian counterparts.
The week before, the ACT Court of Appeal comprising three non-resident judges (who are seconded from the Federal Court under a long-standing arrangement) commented on the fact that Justice Hilary Penfold took two years to deliver judgement in a personal-injury case following a police shooting. And even then she determined only the liability issue and not the amount of damages to be awarded. The parties ended up sorting that out themselves, presumably out of exasperation.
And having taken two years – presumably to get it right in a hugely long judgment – it transpires that the Court of Appeal thought she got it wrong, and over-turned her.
Last Sunday, two barristers came especially to Canberra from Brisbane and Sydney for a wills case which had been given a special listing (one that is supposedly guaranteed) for the next day. Imagine their frustration to find to find their case did not get on and they went home unheard – presumably to voice justified complaint about the ACT court system. They had been forced to be here just in case the matters before them settled or collapsed.
This sort of bungling is giving the ACT a bad reputation. Canberra has reputational struggle enough without this.
These are not isolated cases. Litigants should not have to wait for years after a hearing to get a judgment. The listing system should flow efficiently.
Bizarrely, several cases have been run in the past year citing these very court delays as a reason to challenge refusal of bail or to seek dismissal of cases – thereby further adding to judicial workload.
The judges say their load is too big and they should have a fifth resident judge (in addition to the present four and a Master who hears a lot of interlocutory and civil matters). Corbell says a fifth judge is unwarranted and too costly.
Where does the truth lie?
This year (now almost over) the court has delivered 178 judgments, 42 of which came from non-resident judges. That leaves 136 judgements from the four residents and the Master – roughly 27 each or about one a fortnight.
That is not a big load, especially when you look at the nature of most of the judgements. Thirty-seven were appeals from the Magistrates Court which can (and mostly are) disposed of fairly quickly.
A far too-large portion of the rest were interlocutory and procedural points, which the court needs to knock on the head more effectively and efficiently. These are points on limitation, admissibility of evidence, jurisdiction and so on. Far too few of the judgments are ones dealing to finality complex and difficult matters – precisely the things you employ Supreme Court judges to do. And nearly all of those in 2012 were delivered by non-resident judges.
So we have a court structure and organisation that loads judges up with trivia that should be dealt with elsewhere. It is absurd, for example, that a Supreme Court judge should be dealing with sentencing in traffic matters. But it happened in 2012 – more than once.
Corbell tried to fix that with his “Virtual District Court” but did not have the numbers in the Assembly to get it through.
The legal profession is not blameless, either. Justice Heydon in the AON case talked about the parties’ duty to the court. That means their legal representatives. ACT practitioners have been allowed to get away with a lax attitude to deadlines for evidence gathering and other matters leading up to trial that would not be tolerated in other jurisdictions.
Also, the standard of submissions in the ACT is lower than in NSW, though I only have this anecdotally. Nonetheless, that would put ACT judges behind the eight ball.
If a judge can pick up some excellent submissions, it is only a small task to convert them into a judgment.
But that still leaves a problem with some of the judges. Some suffer from what might be called Magna Cartaism – the urge to write the definitive judgment covering every bit of the law on an area going back to the Magna Carta, or the definitive legal academic treatise on the area of law to be applied.
This is the ACT, not the High Court. Parties want expeditious decisions, not legal history.
The Government has to take some blame, too. It has clearly not made very good appointments in the past. It must improve its appointments. Two more judicial appointments are coming up next year when the Chief Justice and the Master retire.
The Government needs to find good lawyers’ lawyers – people who have had at least a decade and a half at the Bar writing opinions and advocating in the courts in a variety of matters and who have the respect of their peers. All other considerations should be put aside. Barristers who have that sort of experience of marshalling complex facts and difficult law into solid written opinions are in an ideal position to get through the work quickly and efficiently.
Of course, such people willing to serve in a court which now has this reputation might be hard to find.
In the meantime, setting some deadlines would help. Within the bounds of the separation of powers, judges should have to deliver judgments within, say, three months of the hearing or give a publicly available reason for the delay, with updates every three months.
Otherwise, I am afraid, the torpid languor of one hand will continue to wash the drowsy procrastination of the other.
CRISPIN HULL
This article first appeared in The Canberra Times on 22 December 2012.