Examination of published court and tribunal reports reveals that there are substantial differences in terms of what is being collected and reported, and despite significant work being done on delivering more consistent and comparable datasets, there are ongoing framework, collection, reporting and data variable issues.
These issues surface not only because the information technology systems within courts and tribunals may be ‘old’, but also because in some circumstances limited funding may mean that checking, tracking and collating data are difficult. In addition, courts and tribunals often collect data for operational purposes or for internal reporting, and this may mean that specific data on timeliness is not publicly available or may only be available within a court or tribunal within prescribed and narrow parameters.
The following table provides examples of timeliness measures used by a number of courts and tribunals, as well as reasons that are reported for delay.
Magistrates’ Court of Victoria Reasons for
Delay
1) A broad jurisdiction: The Magistrates’ Court not only deals with almost every criminal case that passes through the state courts at some point, but also many civil matters. Criminal matters that are ultimately tried in the County and Supreme Courts are heard in the Magistrates’
Court to the committal stage, with the only exceptions being cases of murder and treason. Further, all indictable offences triable summarily (of which there are many) can be heard in the Magistrates’ Court at the election of the defendant.
2) An expanding jurisdiction: The Magistrates’ Court also has a broad civil jurisdiction to hear civil claims of up to $100,000. It is noted in the Annual Report that ‘the jurisdiction of the Magistrates’ Court is ever being expanded, enabling the court to increasingly hear more serious matters’.347 A reasonable conclusion to draw is that more serious matters require more time and resources to be heard and finalised.
3) Changes to WorkCover: As a result of changes to relevant legislation, ‘the number and complexity of workers compensation cases issued in the court, has [also] increased greatly’, with an increase in the number of complaints of 56% over the last three years.348
4) An increase in the number of intervention order applications: There has also been ‘significant growth and demand within the intervention
347 Magistrates’ Court of Victoria, Annual Report 2010–2011 (Magistrates’ Court of Victoria, Melbourne, 2011), 51, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2010-2011.
348 Magistrates’ Court of Victoria, Annual Report 2011–2012 (Magistrates’ Court of Victoria, Melbourne, 2012), 41, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2011-2012.
120 Appendix A Examples of Timeliness Measures
order jurisdiction’, with more than 40,000 family violence and personal safety intervention orders granted during 2011-2012.349 The number of intervention order applications has increased 41% over four years, to record levels in 2011-2012.350
5) The use of Automated Number Plate Recognition (ANPR) technology, which has expanded some action areas: The infringements jurisdiction is another area of expansion in the Magistrates’ Court, as Victoria Police and the Sheriff’s Office are increasingly using the ANPR technology, resulting in an increase in infringement matters.351
Examples of Measures
Most reporting in the Magistrates’ Court Annual Report is presented as year-on-year, with change by percentage noted, and seems to relate primarily to a workload perspective of operations management.352 Statistical reporting on caseloads by number is broken down by type and stage in the proceedings.
Criminal:
o A six-month measure for cases finalised is reported.
o A 12-month measure for cases still pending is reported as at 30 June. However, it is not clear what types of cases populate this category nor what stage they have reached.
Civil:
o Defended claims pending for more than 12 months as at 30 June 2011 is reported. However, it is not clear what types of cases populate this category nor what stage they have reached.
It is probable that this type of reporting is oriented towards informing the various financial and political models to which the court is responsible and on which it is dependent. As such, the reporting offers limited insight into actual timeliness within the court.
The civil jurisdiction of the court is divided according to the quantum of the claim, and matters where the total relief sought is less than $10,000 are referred for arbitration in a small claims list.353 Statistics are provided about whether the claims were finalised by arbitration, hearing or
349 Magistrates’ Court of Victoria, Annual Report 2011–2012 (Magistrates’ Court of Victoria, Melbourne, 2012), 43, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2011-2012.
350 Magistrates’ Court of Victoria, Annual Report 2011–2012 (Magistrates’ Court of Victoria, Melbourne, 2012), 4, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2011-2012.
351 Magistrates’ Court of Victoria, Annual Report 2010–2011 (Magistrates’ Court of Victoria, Melbourne, 2011), 31, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2010-2011.
352 Magistrates’ Court of Victoria, Annual Report 2010–2011 (Magistrates’ Court of Victoria, Melbourne, 2011), 31, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2010-2011.
353 Magistrates’ Court Act 1989 (Vic), s 102.
Appendix A Examples of Timeliness Measures 121 hearing conferences354and mediation,355 with each represented as a percentage of the total number for the financial year.356 Statistics relating to
defended claims pending are provided as a snapshot as at 30 June 2011.357
In relation to criminal proceedings, statistics are provided that relate to total case activity and are categorised as cases that have been initiated, finalised (finalised within six months, at contest mention, at ex parte hearings) and cases that are pending for more than 12 months as at 30 June.358 Cases recorded as pending for more than 12 months are not broken down by type. That is, they are not categorised according to level of complexity nor in terms of the stage that has been reached within that period (for example, has little, some or major progress been made in dealing with the case?) Similarly, those cases finalised within six months are not specified by type.359
In relation to family law, violence and intervention orders, cases are recorded by type as an annual figure of caseload with no indications as to time.360 In the case of family violence matters, the Family Violence Protection Act 2008 (Vic) provides for most matters to be dealt with quickly within the specialist list, with little delay. Statistics are provided by categories such as those in which intervention orders were initiated, family violence intervention orders finalised, family violence interim orders made, the orders received by the after-hours service, family violence safety notices issued and total family law finalisations.361 There is also some reporting of Court Support and Diversion Services.362
In common with all courts, there is no information about the avenues that people pursued before coming to the court and no information about the demographic profile of court users.
354 Magistrates’ Court Act 1989 (Vic), s 107.
355 Magistrates’ Court Act 1989 (Vic), s 108.
356 The information noted has been taken from the Magistrates’ Court of Victoria, Annual Report 2010–2011 (Magistrates’ Court of Victoria, Melbourne, 2011), 29, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2010-2011.
357 The information noted has been taken from the Magistrates’ Court of Victoria, Annual Report 2010–2011 (Magistrates’ Court of Victoria, Melbourne, 2011), 113, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2010-2011.
358 The information noted has been taken from the Magistrates’ Court of Victoria, Annual Report 2010–2011 (Magistrates’ Court of Victoria, Melbourne, 2011), 28, 110, 111, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2010-2011.
359 The information noted has been taken from the Magistrates’ Court of Victoria, Annual Report 2010–2011 (Magistrates’ Court of Victoria, Melbourne, 2011), 28, 110, 111, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2010-2011.
360 The information noted has been taken from the Magistrates’ Court of Victoria, Annual Report 2010–2011 (Magistrates’ Court of Victoria, Melbourne, 2011), 28, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2010-2011.
361 The information noted has been taken from the Magistrates’ Court of Victoria, Annual Report 2010–2011 (Magistrates’ Court of Victoria, Melbourne, 2011), 28, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2010-2011.
362 The information noted has been taken from the Magistrates’ Court of Victoria, Annual Report 2010–2011 (Magistrates’ Court of Victoria, Melbourne, 2011), 29, available at http://www.magistratescourt.vic.gov.au/publication/annual-report-2010-2011.
122 Appendix A Examples of Timeliness Measures County Court of Victoria
Reasons for Delay
1) Specific issues relating to preparation and running of sexual offence trials: The Annual Report notes that sexual offences make up nearly half of all criminal trials,363 in part due to a low guilty plea rate in these cases (approximately 50 per cent compared with 74 per cent in non-sexual cases).364 One possible reason suggested for this difference is the potentially more severe nature of the sentencing that applies in these cases if proven (with an increased likelihood of immediate custodial sentences and strict reporting requirements for a significant period under the Sex Offenders Registration Act 2004 (Vic)).365 It is also noted that sexual offence cases can often involve children and cognitively impaired witnesses and that strict legislative timelines apply to the conduct of these cases.366 Although those timelines are not always met, it is apparent that such cases receive a higher level of priority, presumably resulting in greater pressure being applied to the hearing of other criminal trials.367
2) Changes to legislation: The Annual Report warns that changes to state sentencing legislation create a risk that the new Community Correction Orders (CCOs) will impose greater burdens on judges in terms of an increased use of judicial supervision, and that the
introduction of the new ‘gross violence’ provisions will lead to a reduction in the number of guilty pleas as offenders attempt to avoid the statutory minimum term of imprisonment attached to these offences.368 It is noted that this will mean it is unlikely that progress in delay reduction can be sustained in the criminal jurisdiction.369 The warning was cautionary, and it will be necessary to revisit the data to determine whether the concerns were justified.
363 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 1, available at http://www.countycourt.vic.gov.au/annual-reports.
364 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 15, available at http://www.countycourt.vic.gov.au/annual-reports.
365 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 15, available at http://www.countycourt.vic.gov.au/annual-reports.
366 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 15, available at http://www.countycourt.vic.gov.au/annual-reports.
367 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 15, available at http://www.countycourt.vic.gov.au/annual-reports.
368 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 14, available at http://www.countycourt.vic.gov.au/annual-reports.
369 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 14, available at http://www.countycourt.vic.gov.au/annual-reports.
Appendix A Examples of Timeliness Measures 123 3) A significant increase in workload arising from the implementation of the Civil Procedure Act 2010 (Vic) is noted, yet without specific detail.
Much of the increase occurring in the civil workload is noted as having been in the Banking and Finance division of the Commercial list, presumably as a result of economic conditions.370 A year-on-year increase in the court’s workload for the past three years is noted.371 Examples of
Measures
In the Report of the Judges of the Court (2011–2012 Annual Report of the County Court) and the separately published Statistics of the County Court 2003–2009/10, reporting focuses on the volume of cases and the percentage change from year to year, using a measure of timeliness of 12 months. The key elements are numbers of cases commenced, finalised and pending. There is limited reported related to special initiatives.
In the civil jurisdiction, cases disposed of within 12 months of commencement and cases pending for greater than 12 months are recorded across the entire jurisdiction by percentage.372
In the criminal jurisdiction, trials and appeals disposed of within 12 months (a single, combined figure), trials pending for greater than 12 months and appeals pending for greater than 12 months are recorded by percentage.373
In terms of appeals pending for greater than 12 months, a breakdown is provided according to the grounds of appeal.374
The reporting has little detail, and the marking point of 12 months will be experientially different depending on how far the case has progressed or its actual complexity or significance to the parties involved.
In relation to criminal matters in regional centres, the Annual Report details the duration of cases since their inception: less than one year, more than one year, less than two years, and more than two years, in the context of reporting on efforts to reduce the backlog in the regional centres.375
In terms of time to trial of criminal cases, the Annual Report records the time to trial in months for criminal trials, whether a five-day trial, 10-day trial or 15-day trial (presumably as an average number of months) by comparison with the previous 12 months.376
370 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 1, available at http://www.countycourt.vic.gov.au/annual-reports.
371 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 14, available at http://www.countycourt.vic.gov.au/annual-reports.
372 Court Case List Management System, Statistics of the County Court of Victoria 2003/2004–2009/2010 (produced by the Business Analyst Unit, County Court of Victoria).
373 Court Case List Management System, Statistics of the County Court of Victoria 2003/2004–2009/2010 (produced by the Business Analyst Unit, County Court of Victoria).
374 Court Case List Management System, Statistics of the County Court of Victoria 2003/2004–2009/2010 (produced by the Business Analyst Unit, County Court of Victoria).
375 Court Case List Management System, Statistics of the County Court of Victoria 2003/2004–2009/2010 (produced by the Business Analyst Unit, County Court of Victoria).
376 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 14, available at http://www.countycourt.vic.gov.au/annual-reports.
124 Appendix A Examples of Timeliness Measures
In relation to the commercial list, the Annual Report notes that most cases in the list are listed for trial within six months of issue, and that most cases were heard accordingly. Precise statistics are not provided. This measure is not one that is ascertainable from the statistics in the report itself as it concerns a specific list within the civil jurisdiction.377
Supreme Court of Victoria Reasons for
Delay
The 2010–2011 Annual Report addressed a number of matters that relate to the court’s position as the state’s superior court and that can be seen to have an impact on its capacity to be timely, but which are significant matters in the conduct of its jurisdiction. These are:
Efficient and just disposition – The need to balance demands for efficiency with ‘just’ disposition; that complex matters will not see
‘compromise on the quality of the reasons given in the pursuit of providing quick judgment’.378
A Court for All Victorians – The court reports a revitalisation of its circuit hearings in order to make its services available in an accessible (and timely) manner for regional Victorians. Presumably, this work requires increased court time and resources when compared with Melbourne sittings. Circuit arrangements may also impact on timeliness as they involve set sittings that can be delayed more readily by complex cases.
Specialty lists and jurisdiction – The Supreme Court has several specialist lists, each with its own list management practices. These include the admiralty list, the major torts list, the long cases list and the intellectual property list. Some list areas are more difficult than others, with an Admiralty list being part of its ‘important’ although ‘burdensome’ jurisdiction. The court is also responsible for special matters and applications under such legislation as the Bail Act 1977 (Vic), as well as surveillance, major crime and witness protection legislation. Additionally, some matters are heard in closed court and hence are difficult to report on.379
Self-Represented Litigants – There may be particular issues that surface when people are not represented. For example, a case was heard that required 115 sitting days and generated 16,166 pages of transcript.380
Class actions – Major class actions during the year absorb a significant amount of the court’s resources,381 even if they are at times less costly and quicker to resolve than a multitude of individual cases.
377 County Court of Victoria, Report of the Judges of the Court (2010–2011 Annual Report of the County Court) (County Court of Victoria, Melbourne, 2011), 24, available at http://www.countycourt.vic.gov.au/annual-reports.
378 See Supreme Court of Victoria, 2010–2011 Annual Report (Supreme Court of Victoria, Victoria, 2011), 53, available at http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report.
379 See Supreme Court of Victoria, 2010–2011 Annual Report (Supreme Court of Victoria, Victoria, 2011), 66, available at http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report.
380 See Supreme Court of Victoria, 2010–2011 Annual Report (Supreme Court of Victoria, Victoria, 2011), 58, available at http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report.
Appendix A Examples of Timeliness Measures 125
Facilities – The court reports an inability to provide sufficient jury courts from time to time in order ‘to deal with all cases as expeditiously and efficiently as the parties are entitled to expect’. The court has needed to use the County Court on occasions to address this issue.382 The court expects an increasing load in respect of jury trials and insufficient facilities may put increasing pressure on timeliness.383
Examples of Measures
The Supreme Court Annual Report 2011–2012 indicates that the court uses a ‘backlog indicator’ to indicate whether the court considers it is processing matters in a timely manner. The consistent theme of measurement throughout the Annual Report is year-on-year comparison of percentage change in initiations and finalisations. It includes percentage reductions in pending cases and also the median time (in months) taken to dispose of criminal appeals. The Annual Reports also have measures of the interval from last date of hearing to date of the published decision for the Civil Trial Division – Commercial and Equity Division. This method of measurement recognises that ‘time to trial’ is different from ‘time to decision’ and possibly indicative of timeliness within the court.384 The Annual Report highlights critical time targets as being eight weeks, 13 weeks and six months from the last date of hearing. No data is provided regarding the time to trial in these matters. The other measurements reported on in this Division are the length of trials (in days) and length of judgments (in pages). This data appears to be aimed at recording the workload of the Division on an annual basis.385 There is no data published with respect to the goal of the Common Law Division being to list the majority of matters for hearing within three to four months of the first directions day.386
In relation to the Criminal Trial Division, the Annual Report contains no timeliness-specific data.387 The Annual Report notes that assessment of the workload of the Division cannot be gauged by statistical analysis alone; rather, a qualitative approach is also required, having regard to the significant variations in complexity and length of trials within the Division. A single unit of measure can therefore be misleading.388
381 See Supreme Court of Victoria, 2010–2011 Annual Report (Supreme Court of Victoria, Victoria, 2011), 58, available at http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report.
382 See Supreme Court of Victoria, 2010–2011 Annual Report (Supreme Court of Victoria, Victoria, 2011), 61, available at http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report.
383 See Supreme Court of Victoria, 2010–2011 Annual Report (Supreme Court of Victoria, Victoria, 2011), 64, available at http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report.
384 Supreme Court of Victoria, Annual Report 2010–2011 (Supreme Court of Victoria, Melbourne, 2011), 52–53, available at http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report.
385 Supreme Court of Victoria, Annual Report 2010–2011 (Supreme Court of Victoria, Melbourne, 2011), 53, available at http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report.
386 Supreme Court of Victoria, Annual Report 2010–2011 (Supreme Court of Victoria, Melbourne, 2011), 60, available at http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report.
386 Supreme Court of Victoria, Annual Report 2010–2011 (Supreme Court of Victoria, Melbourne, 2011), 60, available at http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report.