The Common Law Division

The Common Law Division deals with all criminal and civil actions that may be brought at common law, subject to jurisdictional limits which assign certain categories of cases
to other courts such as the District Court. It also deals with limited appeals on questions of law from Magistrates and certain appeals from other bodies.
Criminal matters dealt with by the Judges of the Division include murder, manslaughter, bail applications and proceedings concerning the confiscation of the proceeds of crime. Civil work includes claims for damages for personal injury arising out of accidents, claims in relation to professional negligence, possession of land and defamation. The Division also includes the Administrative Law List, which reviews some decisions of government and some administrative tribunals.

By their extensive participation in the administration of criminal justice, the Judges of the Common Law Division form the major source from which the Chief Justice selects members of the Court of Criminal Appeal.

ORGANISATION OF BUSINESS

The Common Law Division is the larger Division of the Supreme Court, and comprises the Chief Judge at Common Law and 21 other Judges. In addition to the Judges, there are two Masters who specifically assist in the disposal of litigation. Registrars may also hear a limited range of matters.

As well as hearing cases in Sydney, Common Law Division Judges travel throughout NSW on circuit to hear civil and criminal matters. During 2001, civil circuits were conducted in the Central West, Newcastle, Northern Rivers, Riverina and Wollongong regions. Criminal trials were conducted at Albury, Armidale, Broken Hill, Coffs Harbour, Dubbo, East Maitland, Gosford, Goulburn, Grafton, Griffith, Lismore, Newcastle, Tamworth and Wollongong.

As from January 2001, all Supreme Court proceedings, regardless of where commenced or the venue for hearing, are managed from Sydney.

List Judge

The List Judge is responsible for the efficient allocation of the Division's judicial hearing time. Justice David Kirby was the List Judge during 2001 until 3 August when Justice Anthony Whealy became the List Judge.

The List Judge monitors the availability of Judges within the Division to hear cases and directs listing to maximise the number of civil and criminal cases that can be heard. He or she takes into account the proportion of cases that are likely to settle and the potential for some cases to exceed their estimated hearing time, while ensuring that a minimum number of cases are "not reached" (unable to be heard because the Court cannot provide a Judge). In 2001 less than three per cent of the Division's civil cases listed for hearing were "not reached". The List Judge also conducts call-ups to list matters for hearing and hears any applications to adjourn hearing dates.

Duty Judge

Each of the Judges of the Common Law Division can be rostered to act as the Duty Judge for a week at a time during the law term. A Vacation Judge is rostered during the law vacation. The Duty Judge hears urgent applications, including applications for interlocutory injunctions, throughout the week and outside normal court hours, as required.

The Duty Judge also conducts an applications list each Monday. The applications in this list are matters which cannot be determined by a Master and include stated cases, applications for restraining orders, applications for declaratory relief and applications to dispense with a jury. Matters which cannot be heard on a Monday may be specially fixed to be heard by the Duty Judge later during that week.

The Duty Judge determines interlocutory applications restraining assets and issuing examination orders under the Confiscation of Proceeds of Crime Act 1989, Criminal Assets Recovery Act 1990 and Proceeds of Crime Act 1987 (Commonwealth). The Duty Judge also considers, in chambers, applications seeking authorisation of warrants under the Listening Devices Act 1984.

Lists

In general, matters to be heard by Judges are placed into particular lists. These lists are the Administrative Law List, Defamation List, Differential Case Management List, Professional Negligence List, Possession List, criminal list and bails list.
During 2001, the following Judges were responsible for the management of the Common Law Division lists: Mr Justice Dunford assisted by Justice Michael Adams (Administrative Law List), Justice David Levine assisted by Justice Carolyn Simpson (Defamation List), Mr Justice Studdert assisted by Justice Sperling and Justice Virginia Bell (Professional Negligence List), Justice Greg James (Possession List) and Justice Graham Barr (criminal list). A brief description of each list and other key areas of the Division's caseload follows:

Administrative Law List

The Administrative Law List reviews decisions of government, public officials and administrative tribunals such as the Fair Trading Tribunal and the Residential Tribunal. Practice Note No 119 issued on 2 May 2001 outlines the procedure in the Administrative Law List.

Bails list

Applications for bail or to review bail determinations can be made to the Supreme Court by any person accused of any offence, even if the trial will not be heard in the Supreme Court. These applications are listed throughout the year, including the law vacation.
Common Law Division Judges are rostered to determine these applications.

Criminal list

Arraignment hearings are normally scheduled once a month and cases are normally listed for arraignment within one to two months after committal. The aim of the arraignment procedure is to minimise the number of trials vacated after being listed for hearing or because a plea of guilty is entered immediately prior to or on the day of commencement of the trial. Both instances result in a loss of available judicial time for the criminal list.

This procedure involves counsel at an early stage of the proceedings, allowing both the prosecution and defence to consider a range of issues that may provide an opportunity for an early plea of guilty or shorten the duration of the trial. Practice Note No 112 details the arraignment procedure.

During 2001 the Court continued to list a number of reserve trials. There were 17 reserve trials listed during 2001. Of the 17, two were not ready to start and were listed a second time and heard.

Re-scheduling of reserve trials has occurred only when a party has successfully applied for an adjournment.

Defamation List

Defamation matters are considered to be appropriate for their own system of pre-trial case management. The List is managed by Justice David Levine with the assistance of Justice Carolyn Simpson. During 1999 the Court began to implement the provisions of section 7A of the Defamation Act 1974. That section sets out the respective functions of the Court and the jury in defamation proceedings. This results in an initial hearing before a jury to determine whether the matter complained of carries the imputation alleged and, if it does, whether the imputation is defamatory. A separate later hearing takes place before a Judge to determine whether any defence can be established and to assess damages. This is only required if the jury makes a finding that the matter complained of was defamatory. Practice Notes Nos 14 and 114 set out the procedure for defamation matters.

Differential Case Management List

This List consists of all civil cases that are commenced by a statement of claim and not included in either the Administrative Law, Defamation, Professional Negligence or Possession Lists. It includes money claims, personal injury claims, claims for possession (excluding land), breach of contract, personal property damage, malicious prosecution and claims under the Compensation to Relatives Act 1897. These matters are case-managed by Registrars who conduct status conferences and final conferences. Practice Note No 120 sets out the procedure for this List.

Possession List

The Possession List deals with proceedings for the recovery of possession of land. The List is managed by Justice Greg James with the assistance of Senior Deputy Registrar Robinson. Practice Note No 106 applies to matters in this List. The management of the List encourages early resolution through mediation, other alternative dispute resolution processes or settlement and provides case-management to clarify the real issues in dispute.

Professional Negligence List

The Professional Negligence List deals with matters arising from claims against medical practitioners, allied health professionals (such as dentists, chemists and physiotherapists), hospitals, solicitors and barristers. The List is managed by Mr Justice Studdert with the assistance of Deputy Registrar Younes. Justice Sperling and Justice Virginia Bell have also provided assistance. The legal profession appears to be responding well to the intensive case management provided under Practice Note No 104, which contains special provisions relating to the jurisdiction and for the calling of expert evidence.

Costs Assessment Scheme
Since July 1995 the Costs Assessment Scheme has been the exclusive method of assessment of legal costs for most jurisdictions. The purpose of making a costs assessment application is to enable an assessor to determine costs disputes between practitioners and clients, between practitioners and practitioners, and between parties to legal proceedings. Officers of the Court administer the Scheme. However, there is provision to appeal decisions to the Court, as of right on questions of law and otherwise by leave. These appeals are heard by Masters in the Division as civil matters. This Scheme is described in more detail in the chapter titled "Executive and Related Services".

OPERATIONAL STATISTICS*

New filings

Civil matters

The number of cases commenced in 2001 was 5032 (including 77 regional venue cases), compared with 4177 (Sydney cases) in 2000 (refer to Figure 1). The civil caseload of the Division is now generally confined to complex cases, including matters in which a large monetary sum is in issue, test cases and administrative law, defamation, possession and professional negligence cases.

Figure 1. Common Law Division civil filings

Country civil filings are not available for inclusion for years 1997-2000.

Administrative Law List

In 2001, a total of 74 new matters were filed in the List, compared with 83 in 2000, 99 in 1999 and 128 in 1998 (refer to footnote on this page).

Defamation List

In 2001, a total of 63 new matters were filed in the List, compared with 72 in 2000, 57 in 1999 and 74 in 1998 (refer to footnote on this page).

Differential Case Management List

In 2001, a total of 798 new matters were filed in the List, compared with 684 in 2000 (refer to footnote on this page).

Possession List

Proceedings for possession of land form a large proportion of the Common Law Division filings each year. In 2001, there were 2671 statements of claim seeking possession of land filed, compared with 2151 in 2000 (refer to footnote on this page). The 2001 filings in the Possession List comprise 53 per cent of new civil filings in the Division.

Professional Negligence List

In 2001, a total of 259 new matters were filed in the List and an additional 50 matters were transferred from the Differential Case Management List. In 2000, a total of 127 new matters were filed in the list and an additional 184 matters were transferred from the Differential Case Management List (refer to footnote on this page).

Criminal matters

Criminal list

The Judges of the Common Law Division preside over the trial of serious criminal charges such as murder and manslaughter as well as certain other cases involving serious criminality or particular difficulty, or test cases in
which there is particular public interest. Indictments for matters other than murder, including Commonwealth prosecutions, are presented to the Supreme Court following an application to the Chief Justice by the relevant director of public prosecutions pursuant to Practice Note No 98. That Practice Note was amended in August 2001 by Practice Note No 122.
During 2001 the Chief Justice granted three applications made by the Commonwealth Director of Public Prosecutions under Practice Note No 98, compared with one during 2000. Additionally, during 2001 the Chief Justice granted one application made by the NSW Director of Public Prosecutions under the Practice Note, compared with 10 during 2000.
The total number of new filings in the criminal list during 2001 was 125 compared with 127 in 2000, 110 in 1999 and 124 in 1998. Figure 2 shows a relatively stable number of filings over the last five years.

Figure 2. Criminal list new filings

Includes committals for trial or sentence, ex officio indictments, re-trials ordered by the Court of Criminal Appeal or High Court, separate trials granted for one or more accused, referred matters from the Mental Health Review Tribunal, transfers from the District Court and re-activated matters (for example, bench warrants executed). The figures for 2000 and 2001 also include applications under section 474D Crimes Act 1900.

Bails list

Bail applications are heard by Judges of the Division, who may grant bail to a person accused of any offence even when the trial will not be heard in the Supreme Court. The number of bail applications lodged in 2001 was 2531 compared with 2257 in 2000, an increase of 12 per cent. This is shown in Figure 3.

Figure 3. Bail applications lodged

The Court's video link with correctional centres enables Judges to hear bail applications without the need to transport prisoners to the Court. This facility provides direct links with Bathurst, Cessnock, Goulburn, Grafton, Long Bay Remand, Long Bay Special Purpose, Mulawa and Silverwater Metropolitan Remand and Reception Centre. Parklea Correctional Centre and Juvenile Detention Centres are expected to be online in early 2002. Video link provides the means of hearing over 90 per cent of bail applications.

Duty Judge

Applications under the Listening Devices Act 1984

The work of the Duty Judge includes the consideration of applications for authorisation of warrants under the Listening Devices Act 1984. There were 1024 such applications lodged in 2001 compared with 1235 in 2000, 1554 in 1999, 1500 in 1998, 753 in 1997 and 883 in 1996.

Other new filings

Applications and examinations under the Confiscation of Proceeds of Crime Act 1989, Criminal Assets Recovery Act 1990 and Proceeds of Crime Act 1987 (Commonwealth)

Applications under these Acts are made in the Common Law Division initially before the Duty Judge. If a hearing is required the application is fixed for hearing, without further case management, before a Judge. The number of applications under these Acts for 2001 was 92 compared with 94 in 2000.
Examinations under these Acts are conducted by a Registrar. During 2001 the NSW Crime Commission applied for 53 examinations which proceeded over fifteen weeks compared with 110 in 2000 proceeding over fifteen weeks and 76 in 1999 proceeding over sixteen weeks. The Commonwealth Director of Public Prosecutions applied for 2 examinations in 2001, which proceeded over two days, compared with 2 in 2000 also proceeding over two days and 5 in 1999 proceeding over five days.

Disposals

Civil matters

During 2001, 3972 civil matters (including 156 regional venue cases) were finalised by judgment, settlement or dismissal of inactive proceedings pursuant to Part 32A or Part 14B of the Rules. In 2000 there were 4702 such disposals (refer to footnote on this page). Additionally, during 2001, 1405 matters were disposed of by entry of default judgment, compared with 1211 in 2000 (refer to footnote on this page). Figure 4 shows the total number of Common Law Division civil cases listed for hearing, together with the number of these cases that were disposed of, whether by hearing or some other method. In 2001 there were 651 matters fixed for hearing and 545 disposals. In 2000 there were 449 matters fixed for hearing and 384 disposals and in 1999 there were 526 matters fixed for hearing and 470 disposals (refer to footnote on this page).

Figure 4. Common Law Division disposals of civil matters listed for hearing

Includes administrative law matters listed for hearing from 1998 onwards and regional venue cases listed for hearing during 2001.

The disposals for 1997 do not include 2448 matters transferred to the District Court or otherwise disposed of through the District Court transfer program, nor do the disposals for 1998 include 858 matters similarly transferred or disposed of.
Judges of the Court sat on circuit for a total of 13 weeks to hear civil cases (refer to Annexure A).

Administrative Law List

There were 97 matters disposed of during 2001, compared with 96 in 2000, 93 in 1999 and 58 in 1998 (refer to footnote on this page).

Defamation List

There were 102 matters disposed of during 2001, compared with 107 in 2000, 87 in 1999 and 127 in 1998 (refer to footnote on this page).

Differential Case Management List

There were 773 matters disposed of during 2001. Comparable figures from previous years are not available.

Possession List

Most of the cases in this List are finalised by default judgment. Defended proceedings are specially case-managed in the List. Any default matters that are not finalised within five months are audited and, unless the plaintiff can persuade the Court otherwise, dismissed. There were 159 defended cases and 2502 undefended cases disposed of during 2001, compared with 62 defended cases and 1230 undefended cases between 1 February 2000 (when the List commenced) and 31 December 2000 (refer to footnote on this page).

Professional Negligence List

There were 255 matters disposed of during 2001, compared with 423 in 2000 and 61 between 1 April 1999 (when the List commenced) and 31 December 1999 (refer to footnote on this page).

Criminal matters

Criminal list

During 2001, 130 criminal matters were finalised compared with 144 in 2000 (refer to Figure 5). Disposals include cases finalised by way of plea, verdict or other disposal (for example, no bill, order for bench warrant to issue, referral to Mental Health Review Tribunal, transfer to another court, discharge of jury, order for re-trial, accused deceased or final judgment/order in applications under section 474D Crimes Act 1900).
The higher levels of case disposals over the last three years can be attributed to prudent listing of reserve trials since 1999 and the arraignment procedure introduced in 1998 and refined in 2000. The arraignment procedure encourages the early entry of pleas and also allows cases that should be transferred to the District Court to be identified at an early stage.

Figure 5. Criminal list disposals

Figure 6 shows the number and type of disposals of criminal matters, in Sydney and at circuit venues. There were 96 matters disposed of in Sydney during 2001 compared with 34 at the circuit venues.

Figure 6. Criminal list disposals - Sydney and circuits

Bails list

The number of bail applications heard during 2001 was 2509 compared with 2306 during 2000, and 2839 during 1999. Figure 7 shows the number of bail applications heard over the last five years.

Figure 7. Bail applications disposed

Duty Judge

Matters before the Duty Judge are usually dealt with immediately. If they are not, they are listed for hearing as soon as is practicable.

Alternative dispute resolution
During 2001, 21 civil matters were referred for arbitration (refer to Table 1). The decreased number of referrals is due primarily to the impact of the District Court Amendment Act 1997 which saw the transfer of a large part of the Court's personal injury caseload to the District Court.
Mediation has been and will continue to be encouraged as an alternative to a contested hearing. The use of mediation has been particularly encouraged in the Professional Negligence List and the Possession List. Several of the Registrars are trained as mediators and are available to conduct mediations for no additional fee.

Pending caseload

Civil matters

The total number of civil cases pending at the end of 2001 was 4039 (including 209 regional venue cases) compared with 4716 (Sydney cases) in 2000 (refer to footnote on this page). The figures include proceedings which may be determined by entry of a default judgment, mainly in currently undefended proceedings for possession of land or for a liquidated sum of money or cases commenced by summons. There are presently 1558 such matters lodged at the Court. The pending civil caseload of the Division is analysed in Table 2.

Table 1. Civil arbitrations

	1997	1998	1999	2000	2001
Referrals	664	53	47	44	21
Settled at arbitration	279	19	20	25	12
Heard	313	24	21	14	5
Other orders (including adjournments)	72	10	6	5	4
Applications for re-hearing	169	29	12	8	3
Re-hearings	31	13	1	4	4
Settlements before re-hearing	103	18	13	5	4

Matters commenced before 31 January 1994 were managed using Active Case Management (ACM) procedures. The Court's remaining ACM matters (excluding class actions) were transferred to Differential Case Management procedures during 1998 so that one system of case management would apply to ordinary civil matters in the Division. An ordinary civil matter is one that requires case management procedures and is not included in any specialist list. Before February 2000, defended cases for possession of land were managed under Differential Case Management procedures.
Since January 2001, all Supreme Court proceedings, regardless of where commenced or the venue for hearing, have been managed from Sydney and included in all statistical reporting.

Criminal matters

Criminal list

The pending criminal caseload at the end of 2001 was 82 matters compared with 95 matters in 2000 (refer to Figure 8). The average length of trials heard in Sydney during 2001 was 15 sitting days compared with an average of 13.5 days during 2000 and 13.3 days during 1999. There were 10 re-trials during 2001

Table 2. Common Law Division pending civil caseload (as at 31 December)

	2000	2001
Administrative Law List	63	40
Defamation List	162	122
Differential Case Management List	1746	1395
Professional Negligence List	539	550
Possession List	984	1149
Summons matters	573	442
Class actions (lodged prior to 31.1.94)	612	304
Applications	37	37
Total	4716	4039

arising from the necessity to discharge the jury before completion of the trial. During 2000 there were seven such
re-trials and 13 during 1999.

Figure 8. Criminal list pending caseload (as at 31 December)

Almost all criminal cases in the Supreme Court are long trials involving a charge or charges of murder or manslaughter. Other trials may be heard by the Supreme Court pursuant to Practice Note No 98 as amended (see also above under criminal list new filings).
Trials for offences such as sexual assault, assault resulting in serious physical injury, robbery and major drug offences are often shorter and are dealt with by the District Court unless an exemption is granted under Practice Note No 98.

Bails list

There were 165 pending bail applications at the end of 2001 compared with 143 applications at the end of 2000 (refer to Figure 9). The average pending caseload throughout 2001 was 130 and 128 during 2000.

Figure 9. Bails list pending caseload (as at 31 December)

Time standards
Criminal matters

Criminal list

The 2001 time standards for criminal cases were initially announced in 2000 but were proven to be unrealistic. In early 2001 the time standards for 2001 were revised and those for 2002 were announced. The 2001 performance against time standards is shown in Table 3.

Table 3. Performance against time standards

Time from commencement to finalisation	Standard	Disposals achieved
within 9 months	50 per cent	68 per cent
within 12 months	70 per cent	81 per cent
within 15 months	90 per cent	86 per cent
within 18 months	100 per cent	91 per cent

As most of the cases dealt with in the criminal list are murder or manslaughter trials, the period between verdict and sentence is not time critical. In measuring performance against time standards, the time to finalisation is the time between commencement and date of plea, verdict, no bill, order for bench warrant to issue, referral to the Mental Health Review Tribunal, transfer to another court, discharge of jury and order for
re-trial or other disposal (for example, death of the accused).
Where a new trial occurs by reason of a hung jury or successful appeal, commencement is taken to be the date of the order for the new trial.
The time standards adopted for 2002 are: 50 per cent of criminal list cases to be disposed of within nine months, 75 per cent within 12 months, 95 per cent within 15 months and 100 per cent within 18 months.
Table 4 shows the median waiting times for criminal cases (calculated from the date of committal for trial or sentence). In 2001 the median waiting time for all disposed cases was 7.2 months. Prior to 2001, the waiting times were based on cases listed in Sydney only and whether the accused was in custody or on bail. Custody and bail cases are no longer separately streamed.
The complexity and length of the Court's criminal matters limit the ability to list reserve trials or matters on short notice, although the Court has continued to list a number of such trials.
The continued reduction in median waiting time for criminal cases has been achieved through increased allocation of judicial resources to criminal trial work and the number of early pleas encouraged by the arraignment procedure, along with prudent listing of reserve trials, which permits more effective use of the allocated judicial time.

Bails list

Table 5 shows that the waiting time for bail hearings at the end of 2001 was similar to that at the end of 2000, 1999 and 1998, namely two to three weeks from filing. The waiting time in December of each year is not reflective of the average waiting time during the rest of the year because the number of applications filed increases significantly as the end of the year approaches. For most of 2001 the waiting time was between one and two weeks.

Table 4. Median criminal case delays (in months)

	1997	1998	1999	2000	2001
Accused in custody	17	14	13	11	7.2
Accused on bail	24	22	18	10	7.2

From 2000, delay is the time between commencement and plea, verdict or other disposal. For previous years, delay was measured between commencement and the date of the first trial.
For the years up to and including in Sydney only. For 2001, the delay is for all cases, regardless of hearing venue.2000 the delay is for cases listed

Table 5. Bail hearing delays (in weeks) as at 31 December

	1997	1998	1999	2000	2001
Delay	1-2	2-3	2-3	2-3	2-3

Delay is the time between lodgement and hearing.

Civil matters

The Court has determined that it will develop time standards for the disposition of its civil trial work. The Court is not able to publish time standards until improvements are made to computer-based case management systems that will enable the Court to monitor and measure the case management process with a speed and precision not presently available.
Common Law Division civil cases are placed into a call-up list for the appropriate hearing venue to obtain a hearing date as soon as the judicial officer or Registrar case-managing that case determines the matter to be ready for hearing. Table 6 shows the median time between commencement and disposal for cases finalised in the specialist lists.

REGISTRY SUPPORT

The Registry provides support by creating files when documents are lodged, processing fees and payments, listing matters for hearing and issuing listing notices. The Registry staff secure the custody of court documents including exhibits and documents produced under subpoena, ensure that court files are maintained and delivered to court for call-overs and hearings, record all listing results and other decisions, issue warrants, provide information about court procedures and liaise with litigants and the legal profession. The Registry also ensures that legislative and rule requirements are met and review and, where necessary, amend procedures within the Registry to accord with changes in legislation or Rules.