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Case crisis the grim reality, despite blitz

Date

Louis Andrews Court Reporter

Attorney-General Simon Corbell.

Attorney-General Simon Corbell. Photo: Elesa Lee

Just what will it take to fix the ACT Supreme Court?

For the legal fraternity, this year started with high hopes and uncommon

solidarity of purpose. Lawyers, judicial officers and politicians were united behind a bid to end the backlogs and delays crippling the territory's higher court.

It ended with an unprecedented complaint against a judge - one that has divided the profession and placed pressure on Attorney-General Simon Corbell.

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The ''blitz'' on the court's lists - 12 weeks of intensive over-listing with the aid of interstate judges, designed to churn through cases and focus lawyers' minds in the hopes of settling matters - has come and gone.

It was hoped the move would return the court to a sense of normalcy, bringing an end to a crisis that left defendants waiting years for trials and litigants sitting in limbo, waiting on reserved decisions.

There's a consensus the blitz, at the very least, cleared up a big chunk of outstanding cases. It was estimated to have cleared up about a fifth of the criminal trials on the court's books and a large proportion of the civil workload.

But after the dust settled, and acting judges John Nield and Margaret Sidis returned to NSW and retirement, came the grim reality.

Jury trials are still being listed for mid-2014, at least for some judges. Master David Harper, shortly to hang up his judicial robes at the mandatory retirement age of 70, will spend his last months in chambers churning out reserved judgments.

A litigant battling cancer - one of six former public servants in a Commonwealth superannuation claim - became so desperate for his judgment day he had the case re-listed twice to beseech the judge for a swift ruling. [He's since got an indicative judgment in his favour but no money.]

Defence lawyers continue to invoke the Human Rights Act, saying unreasonable delays breach their clients' rights. Interstate lawyers are appalled at the situation. Chief Justice Terence Higgins, to retire next year, is still making his case for a fifth full-time judge, an increasingly popular view among the fraternity and the community. Some say they need a fifth and a sixth. Corbell is still declining to appoint just one more for cost reasons.

The Attorney-General has said he wants to see what impact the docket system - a listing reform dovetailing with the blitz - has on the situation. The docket system allocates cases to the trial judge earlier on in the piece. The theory is the scheme lets judges anticipate potential issues and head off delays before they arise. But the effectiveness of the system is dependent on individual judicial officers and, of course, practitioners. It's a move viewed with scepticism by some lawyers and outright dismissal by others. And, in any event, any meaningful evaluation could take years.

It'll be a new-look bench by the end of next year, making it harder still to assess the merits of the docket system.

The government must appoint successors for the Chief Justice and the Master and have already started advertising. If Higgins' successor comes from among his Canberra judicial colleagues, they'll need another judge. He said earlier this year the twin retirements make it the perfect time to appoint a fifth. But, as things stand, he's unlikely to get his wish in the new year.

In the meantime, there's a more pressing problem afoot for the Supreme Court and the Attorney-General. The Bar Association, infuriated by lengthy delays in handing down reserved judgments, took the extraordinary step of making a formal complaint against Justice Richard Refshauge.

Under the all-or-nothing statutes of the Judicial Commissions Act, Corbell has just two choices - dismiss it as frivolous or convene a judicial commission. Such an inquiry is the only way a sitting judicial officer can be removed from office, if it goes that far.

At the time of writing, Corbell had yet to make his call.

The profession is split over the association's complaint. The ACT Law Society doesn't want a part of it. They say they want ''urgent remedial action'' about the issue of reserved judgments more generally, although it's not entirely clear what that means.

Some lawyers back the complaint. Some have questioned whether it was necessary. Others say it should have been broader, encompassing other judicial officers with large reserved caseloads.

Regardless, the Attorney-General is now considering the complaint. If he calls for a commission - a panel of three judges - it would be a first for the ACT.

What would it reveal? Would it throw criticism on the judge? Would it shine a light on a situation direr, broader, more endemic and more desirous of swift political response? Would it say Refshauge needs a rebuke? Would it say the court needs a fifth judge?

Corbell faces a difficult decision. The profession faces uncertainty. Litigants and defendants, on the evidence at least, still face lengthy delays. But who knows what the new year will bring?

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