Existing computerised databases

A computerised database containing basic information about the progress of actions through the court system was used in each registry, but these were of limited scope and each registry maintained a completely distinct and separate database. A single computerised database was collated by the then Registrar from the three registries

137 after the end of each financial year.46 However, this computerised database did not contain any information about whether a trial date had been allocated to cases or a pre-trial conference had been held. On closer scrutiny it proved to be frequently incomplete or inaccurate, particularly in relation to the categorisation of actions filed.

For example, it was the Court’s practice for numerical case codes to be allocated to each matter, each code number representing a particular type of dispute.47 Case categorisation codes were allocated by registry staff at the time of the filing of a writ or application. However, frequently the endorsement on a writ did not give adequate information about the nature of the dispute to enable registry staff to allocate a case categorisation code to it accurately. For example, where the nature of an accident was not specified on the endorsement on a writ in a personal injuries matter and the defendant was the Crown, registry staff might allocate a code of ‘303 personal injuries – other,’ when the appropriate code was more likely to be either ‘302 personal injury – industrial’ or ‘319 professional negligence – medical.’ Because there was no routine practice of reviewing case codes later in the litigation process once the issues had been defined by pleadings, it was necessary to review all case codes before reliable statistics could be produced from the computerised database for the purposes of this research. During 2006 the Registry Supervisor audited the Court’s records and corrections were made for matters filed between January 2001 and June 2006. This meant that the type of dispute involved was accurate for matters

46 _{The computerised database contained details in relation to every case filed including: the court’s file}

number, date of filing of claim, amount of claim, case code, date of finalisation of litigation, manner of finalisation, judgment amount, the types of documents filed with the court and the date they were filed.

47 _{For example, 201 breach of contract, 203 building contract, 206 misrepresentation, 301 personal}

injury – motor vehicle, 302 personal injury – industrial, 319 professional negligence – medical, 304 trespass, 305 property damage and 602 probate. See Appendix D for a full list of the case codes used by the Court.

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filed during that period. It was important for this research that case categorisation codes were as accurate as possible, because they were relied upon to distinguish between various types of matter. Analysis of matters has been conducted according to broad categories of matter (for example ‘torts’ and ‘commercial’) so that

inaccurate case codes do not impact on the results.

The following information was included in the final database from the existing computerised databases: the file number, year, registry, date of filing, case categorisation code and description of the nature of the case. The computerised database also contained a record of the date a matter was finalised, manner of finalisation and the nature of the judgment. However, sometimes the other data sources were relied upon for information about finalisation of matters because where no final judgment had been entered but the matter had otherwise been finalised, no record of finalisation was entered on the computerised database.

The information that was recorded on the computerised database provided

quantitative information about the nature of matters litigated in the Supreme Court of Tasmania and the time between commencement and finalisation of litigation.

However, the computerised database did not contain any mediation specific information, which necessitated the development of the final database.

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3.2

The mediation forms

From 1998 mediators were required to complete a form in relation to each mediation conference they conducted at the Court (‘the mediation form’).48 At the

commencement of this study the mediation forms were kept at the Court registry and no data from the forms had been entered onto a computerised database. The

mediation forms provided, amongst other things, for the recording of:

 the date of the conference;

 the mediator’s initials;

 the file number;

 case name;

 location;

 duration;

 type of matter;

 stage conference called;

 solicitors;

 whether the matter settled;

 whether judgment or agreement was signed;

 if not, whether there was agreement on some matters;

 final offers to settle;

 the mediator’s estimate of settlement;

 the mediator’s opinion about whether the conference was successful; and  general comments.

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From 2002 the forms provided an indication of whether the conference was by consent of the parties or directed by a Judge and the date of the request or order for mediation. This change followed reforms introduced by the Alternative Dispute

Resolution Act 2001 (Tas) which enabled judges to refer matters to mediation with or

without the consent of the parties to the dispute. Additional information concerning the finalisation of matters that had not settled at mediation could also be included on the form. That information was:

 the length of time between the conference and subsequent settlement;

 how the matter settled in terms of consent judgment, final judgment or notification to the Registry Supervisor that parties had agreed on a final settlement; and

 the settlement amount.

An example of the form was provided to the University of Tasmania Human Research Ethics Committee (‘the ethics committee’) for preliminary consideration. The ethics committee determined that there would be no difficulty in accessing existing mediator forms provided that the following information was not sought:

1. any identifying information (including the case name and names of solicitors) 2. the quantum of settlement offers and settlement amounts (and any potentially

identifiable items pertaining to these).49

The information that the ethics committee did not think should be provided was of little interest for the research and much of the information on the mediation form was already contained on the existing computerised database. However, the forms

contained some new information that was useful for the purpose of the research and

141 which was not available from another source. This included the date and duration of the mediation conference and the stage of litigation at which the conference was held. This data was relevant to the second research question, which asks how mediation is practised at the Supreme Court of Tasmania. The ethics committee's determination precluded the provision of copies of the mediation forms for the purposes of the research. However, information in the forms that did not raise concerns about confidentiality was entered onto the final database.

The following data was entered onto the final database from the mediation forms: date of mediation conference, whether by consent or order, date of consent or order, mediator, location, stage conference called (very early / pleadings closed / judges papers filed / set down for hearing), whether the mediation resulted in a settlement (Yes / No), whether a judgment or agreement was signed (Yes / No), if there was no settlement whether the matter was adjourned to another conference, whether the parties agreed to a further conference after completing certain steps, whether it was agreed that the matter be set down for trial, or whether there was no agreement. The mediation forms also identified some finalisations that were not recorded in the computerised database because a consent judgment had not been filed.

It became apparent when the data was being analysed that there was a discrepancy between the number of mediations reported in the Chief Justice’s Annual Reports and the number of mediation forms. There was a significant difference in the figures relating to the financial year 2002/2003.50 The Court’s Annual Reports between 1999/2000 and 2004/2005 published overall numbers of mediations held. The

50

Chief Justice Cox, 'Report of the Chief Justice of the Supreme Court of Tasmania: Annual Report 2002-2003' (Supreme Court of Tasmania, 2003). See Chapter 4 [Chart 3.3] and notes.

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discrepancies in the overall numbers published were 1 in 1999/2000, 23 in

2000/2001, 5 in 2001/2002, 169 in 2002/2003, 3 in 2003/2004 and 2 in 2004/2005. The Court has been unable to explain these inconsistencies. I have chosen to use the final database figures so that they are consistent with other data presented in Chapter 4, except for the year 2002/2003. I suspect that some mediator forms were misplaced for that year between the publication of the Annual Report and the creation of the final database. I am not able to provide further explanation for the difference between the figures published by the Court and the figures produced from the Court’s final database. Because there is no breakdown of matter types other than ‘personal injuries motor vehicle,’ ‘personal injuries industrial’ and ‘other’ matters in the Annual Report, details of ‘other’ matters cannot be ascertained. For that reason no detailed analysis of mediations held during the financial year 2002/2003 has been conducted. The figure published in the Chief Justice’s Annual Report has been relied upon for a record of the number of mediations conducted in 2002/2003, although there is no means of testing the accuracy of that figure.

Some omissions on the mediation forms were also detected during compilation of the final database. In particular, some mediators regularly neglected to indicate the duration of the conference on the mediation form. Consequently, the duration of mediation conferences could not be analysed in detail.

3.3

The cards

The third Court record that provided information for the final database was created by the Registry Supervisor in Hobart. A series of cards (‘the cards’) was compiled for the purpose of managing the trial lists in Hobart. Each card related to a matter

143 which the Court had been notified was ready for trial. Upon receipt of such

notification, the Registry Supervisor recorded information on a card in relation to pre-trial conferences and the convening of mediation conferences. The cards also contained information about pre-trial applications and appearances, trial dates, mediation dates and the date of settlement. The date of settlement might be the date of a mediation resulting in a settlement or the date that the Registry Supervisor received advice that a matter had settled and therefore should be removed from the Court’s list of matters awaiting finalisation.

The following information from the cards was transferred into the final database: the date allocated for trial, mediation dates and the date of finalisation. The cards showed how close to an allocated trial date the mediation occurred. The cards also identified some matters that were settled without a formal consent judgment and outside of mediation. The Registry Supervisor recorded the dates on which he was informed that settlement had occurred.

It was discovered when compiling the final database that the cards produced by the Registry Supervisor contained dates of a number of mediations for which there were no mediation forms. This indicated that there were occasions where a mediator had not completed a form. Details of those mediations were entered onto the final database. These omissions, however also raise the possibility that some mediations were conducted without either cards or mediator forms being completed, so that the final database may not include information about all mediations. There were also occasions where a mediation had occurred prior to the certification of readiness of a case for trial but there was no record of a mediation on the cards. The fact that a

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mediation had occurred was revealed on the mediation forms and that form was able to be relied upon as evidence that a conference had been held. Nevertheless, it did disclose inconsistencies between the records that were compiled into the final database. A further limitation of the data on the cards prepared by the Registry Supervisor is that they are not a comprehensive record of listing information in relation to the Court’s entire Tasmanian caseload. Although the cards did provide a comprehensive record in relation to matters listed for trial in Hobart, they were prepared for only a few matters listed for trial in Launceston or Burnie. For that reason statistics used in this study about the timing of mediation, settlement and allocated trial dates are necessarily restricted to matters filed in the Hobart Registry.