A. A Unified Court
The problems arising from a multiplicity of courts and the benefits of a unified court have been ventilated in numerous articles and studies. For the purpose of this report, I am not debating the merits of merger. I accept the arguments in favour of one court as overwhelming.
Although New South Wales has a three-tier system, at least all three tiers are funded from the one source. The process of merging the courts does not therefore involve the financial problems encountered, for example, in California.
In California, the merging of the trial courts is proceeding on a two-stage plan. Excerpts of the report regarding the plan and the completion of stage one have been published by the judicial Council of California.40
I recommend that the trial courts of New South Wales be merged to form one court. Without attempting to put forward a detailed plan for such a merger, a task which is clearly beyond this report, I suggest a plan be prepared and that the plan have two ingredients or stages.
First, I suggest that the District Court and the Common Law Division of the Supreme Court be merged. Some of the benefits of such a merger are mentioned elsewhere in this report, for example, the use of a multiple calendar system of listing,41 the division of the court’s business particularly the extension of the District Court default registry42 and the increasing use of Masters.43
Second, I suggest that the magistrates’ courts be absorbed by the, then, unified court. I suggest that the status of magistrate and Master be equal and that there should be transposition of personnel from time to time. The existing civil business of the magistrates’ courts would be allocated among the divisions of the court. The summary criminal business would be dealt with in much the same way as at present, subject to the removal of default criminal work and, perhaps, a different method of allocation of work.
A benefit of this second part of the merger will be a further reduction of the “police court” image of the magistrates’ courts.
B. Appointment of Judges
Australian lawyers tend to be critical of the American system of electing judges, asserting the apolitical nature of the British and Australian judicial structure. On the one hand, such criticism ignores the way the American system works and, on the other, overlooks features of the British system such as that the highest English judicial officeholder changes with a change in government. By way of contrast, a New York lawyer to whom I spoke was appalled at the power of patronage which would be available to a State Governor who had the power of appointment of judges. There are sufficient judicial appointments in Australia which have an obvious political basis to illustrate the point.
The gradual change throughout America to the appointment of judges is not to a system of simple appointment by the government of the day. There are various systems of sifting, generally involving the relevant Bar Association, through which the appointee must pass. I expect that, if appointments continue to be made from the bar, eventually some such system of independent evaluation will come into operation in New South Wales. This involves its own problems. In New York, a judge seeking election stood on a ticket of “Integrity and Experience”. In California, a judge was evaluated by his local Bar Association and received 3 out of 5 for integrity. I consider that the evaluation should be truly independent and I hope that the profession can provide a panel which is accepted as such.
A study done in America indicates that there is no real difference in performance between those judges who are elected and those who are appointed. No doubt the same result would be produced by a study in relation to Australian appointments. Notwithstanding this, there are two substantial disadvantages to a system of election:
(a) In a small community, especially in a suit between a local and a stranger, there must be at least a fear of bias.
(b) The expense of the election campaign. A recently contested election in California was estimated to cost the successful candidate, the incumbent, $US35,000. The election fund is raised by seeking donations from the lawyers who appear before the judge which must affect the way in which the judge can conduct his court.
The view is commonly held in New South Wales, particularly by judges and barristers, that the only source of potential judges is the bar. I am not convinced that this is so. Certainly I consider that there should be more scope for the advancement, or deployment, of judicial officers who have demonstrated capacity. Also there should be more scope for career judges, that is, the appointment of judges at a younger age rather than treating the bench as a non-contributory retirement scheme for barristers, albeit determined by lot. Regard must be paid to the number of great judges who went to the bench at an early age. It must also be borne in mind that the administration of justice, in a community such as New South Wales, is concerned, at the present time, much more with processing work than with asserting the independence of the bench against the monarch, a task which was, as it happens, more often left to the jury. If appointments are to be made at a younger age and from people less experienced in court craft, there will be a greater need for judicial training to which must be coupled the need for continuing judicial education. This is a field which commands great attention in the United States but very little in Australia.
Basically what I am saying is that there must be a degree of professionalism in relation to the bench. The judges are the most important single element in the administration of justice, a proposition I am sure most judges would support. That position carries with it a responsibility. The situation was put to me in the simplest terms by a court administrator in the United States, “any system will work if the Judges will”.
It is not yet time to put forward a particular plan for a change in the system of judicial appointment in New South Wales, but it is clearly an area where there must be developments. While the present system continues, I consider that the bar and the profession generally should make a contribution to judicial administration in the way it does in England through the system of recorders, although there need be no restriction to criminal work. The introduction of such a system would have the following benefits:
(a) It would provide judicial officers at a lower cost.
(b) It would limit the expansion of the permanent judiciary.
(c) It would provide future judges with judicial experience.
(d) It would enable an evaluation to be made of the capacity of an individual to perform as a judge.
To the extent that there is pressure for the appointment of solicitors to the bench, this would provide a proving ground. Once the system is under way, I suggest that the majority, at least, of judicial appointments should be made from those who have served as recorders.
I recommend that a number of barristers and solicitors be appointed recorders to serve as judges for four weeks each year.
In a number of jurisdictions which I visited, concern was expressed at the time taken by courts and judges to deliver reserved judgments and at the problems which the parties suffer by not knowing when the judgment will be delivered. There is considerable diffidence in New South Wales about asking a judge when he will deliver his judgment. In New Jersey, I heard a lawyer put most forcefully to a federal judge that he should deliver judgment by a certain date. Whether his submissions had any effect, I do not know; certainly he received no comfort from the bench during his argument.
It is difficult to legislate in this area and one really relies on the sense of responsibility of the individual judge. There is a practical step which I consider may be of some help. That is, to fix a deadline.
I recommend that if the court or a judge reserves its or his decision, it or he must fix a date upon which the decision will be given. There will obviously be pressure on the judge to fix a date which is reasonable and pressure on him to keep to the date fixed. If, for some reason, he is unable to give judgment on the date fixed, he must have power to fix a further date.
C. Division of Business
This is an area which I consider to be of some importance, yet it does not seem to have received much attention in the countries which I visited. In the United States, the individual calendar system in the federal courts precludes any division. At the State level, New Jersey has a chancery division, but otherwise I saw no evidence of a division of the civil business of a particular court. Some courts have a limited and specialized jurisdiction, such as the Detroit Court of Common Pleas, but lack other jurisdiction, and that must be a handicap.
South Africa, Scotland and New Zealand have no apparent formal division of civil business and no really separate criminal division. England maintains a division which is not unlike that which operates in New South Wales.
I recommend that where categories of business of the court, by reason of volume and common features, are amenable to being dealt with in a particular way, those categories should be recognized and treated accordingly. The division involved may occur at any stage of the court process and need not be maintained throughout the process. For example, a defended default action goes back into the ordinary list. Changes in society and legal rights will cause those categories to change and adjustments will have to be made from time to time.
The first step which should be made is to recognize the existing divisions of the present New South Wales courts that are working well. An example is the District Court Default Registry. This should be retained, with unlimited jurisdiction in the unified court.
At present, a plaintiff making a commercial claim for an amount under $20,000 has a choice of forum. There is the District Court, or, in the Supreme Court, the Equity Division, the Common Law Division or the Commercial List in the registry of the Common Law Division. Each has different procedures, and more importantly, different delays before hearing.
It seems to me appropriate to review the existing division of business of the Supreme Court, in particular the historic division between the Equity Division and the Commercial List.
A recent development in the United States is the setting up of a system to “screen” appeals in an endeavour to reduce the appellate work load. There are two aims. First, to reduce the number of appeals, in particular, by prompting settlement. Second, to define the issues and thus reduce the volume of the briefs (written submissions) of the parties, It must be remembered that there is only very limited oral argument on appeal in United States courts.
The experience in New York, I gather, is satisfactory in relation to the first aim but not the second. This is because the lawyers do not work up the case before the “screening” hearing and accordingly are not prepared to give away any point.
The Colorado Court of Appeals set up a pilot “screening” scheme in one of its divisions this year. The hope was that more preparation would be done before the “screening” and that there would be more success in defining issues.
In New South Wales, with oral argument on appeal by more specialized advocates, I do not consider such a system worthwhile.
D. Multiple and Individual Calendars
While there are considerable variations possible, the basis of a multiple calendar system of listing is that all cases go onto a central list and come for trial before one of a panel of judges. The basis of an individual calendar system is that each case is allocated to a judge on filing and the management of that case remains the responsibility of that judge.
The United States District Court operates on an individual calendar. On filing, cases are assigned by rotation to each judge in the district or division. Each judge has between 300 and 400 current cases before him. The cases are of all types; criminal, anti-trust, personal injury and so forth. If a judge becomes unavailable, cases can be assigned to another judge.
The introduction of the speedy trial legislation has meant that the judges must give priority to criminal cases and the civil list has suffered accordingly. One district judge told me that he had 340 civil cases and 100 criminal cases on his docket and that he receives 30 new civil cases and 17 new criminal cases a month. Because of the speedy trial requirements, he spends between 75 and 90 per cent of his time on criminal work. As a result, civil cases are three years behind and are going behind at the rate of ten a month.
The pressure on a judge to keep his docket up to date is exerted by court administrators. It is also said that a short docket leads to promotion to the Court of Appeal.
Under an individual calendar system, all pre-trial motions are dealt with by the judge to whom the case was assigned or by a magistrate, similar to a New South Wales Master, to whom he has delegated some or all of the pre-trial matters. As the judges tend to adopt different practices in dealing with motions, the practitioners complain of confusion and inefficiency. Also, a great many procedures can be dealt with by consent of the parties and need not concern the judge. Under an individual calendar, the judge seeks to control each such matter which gives rise to inefficiency. If a consent procedure is available, the court need only be approached if the parties cannot agree.
New York has a master calendar system. An attempt was made to allocate all cases to a judge on filing for him to hear the pre-trial motions. It was found that the judges had no time to hear cases and the attempt was discontinued.
In California, following a study done in 1974, the view is taken that the master calendar system is better if properly administered. If there is no proper administration, the individual calendar system is better. What I observed was consistent with this view, with the further comment that federally funded courts could afford the individual calendar while the State courts, with less funds and larger volumes of work to process, used the multiple calendar.
In the United States, a distinction is made between complex civil litigation and other civil litigation. It is said that complex cases should be assigned to an individual judge at the outset.
The person who must ensure that a ‘complex case’ is thoroughly prepared prior to trial is the trial judge himself ... Without a firm attitude on the part of the judge, no measure for minimum volume, expense and delay will be effective.44
Under the adversary system, the parties’ legal advisers are bound, subject to a duty to the court and ethical considerations, to advance the interests of their clients. It is left to the court to control the processing of the case. If complex litigation is to be assigned to a particular judge, it then becomes the duty of that judge to ensure that the case is resolved as speedily and economically as justice allows.
Comments of this nature must be read in the light of the United States discovery procedures and the massive litigation (anti-trust, class actions, multi-district) which occurs there. But there are complex cases brought before the New South Wales courts. For example, elsewhere45 I refer to the prosecution of white collar crime in this context. Certainly cases which involve a great number of documents or a long hearing come within this category and there could well be a benefit in assigning such cases to an individual judge, though not necessarily all to the same judge, at an appropriate stage in the proceedings.
In a previous section of this report46 I have suggested a review of the division of business of the court. In the course of such a review, consideration could be given to changing the emphasis within the common law division from Commercial List cases to complex cases. For example, some defamation cases would be classed as complex and, bearing in mind the way in which some such cases are conducted, there seem good reasons why such cases should be referred to a particular judge at an early stage so that he can ensure that they are brought to trial quickly and without the exploration of irrelevant issues.
The current vogue in New South Wales of proceeding where possible in the District Court or by summons in the Commercial List, looked at in the light of the Californian view,47 suggests a benefit in an examination of the working of the common law master calendar of the Supreme Court.
Various United States federal judges explained to me how they handle their dockets. Each case is assessed in terms of the steps which are required before it is ready for hearing, or for the pre-trial conference. The docket is reviewed periodically, often monthly. If a case is not proceeding at the correct speed, the judge’s secretary telephones the lawyers involved to find out why. If the explanation is not satisfactory, the judge summons the lawyers to a conference before him. It is, of course, always open to a party to proceed by motion.
To the extent that the court operates by way of individual calendar, I suggest that the judges concerned should follow the system to which I have referred in the preceding paragraph.48 In particular, I recommend that the system of running mentions employed in the Commercial List be discontinued.
With a master calendar system, there is no need for more than the statement of claim and appearance to be filed with the court until the pre-trial conference or directions hearing. But while an action is proceeding on an individual calendar, copies of all documents, or notice of them, should go to the judge, in the way copy documents go to an arbitrator, so that he can keep track of the progress of the action.
E. Court Facilities
The first point to be made about court facilities is that they must be planned in co-ordination with other authorities and departments. This was stressed to me in the United States, where I was told that: “There is no point in having new courts and judges if there are no prosecutors”.
Then the needs of the courts must be studied. It is rather embarrassing to put 12 person jury boxes into Scottish courts, as it seems an English architect did. And, of course, provision must be made for future trends.
The McGeorge School of Law at Sacramento, California, has a “court room of the future”. It is basically designed as a jury court. The jury sit opposite the judge, in front of the spectators, the lawyers on either side. The court makes considerable use of videotape. It also has a number of security features.
The school runs an elective course on advocacy. The students run mock trials before a judge and jurors from the local community. Part of the study is to observe the jury which is videotaped and watched.
In the United States, a large problem in court planning is the notion of some judges that they have a proprietary right over a particular court room. This notion is hard to dispel and inconsistent with the efficient use of facilities if these are limited.
There are a number of court room facilities which may be needed for a particular trial, but which are otherwise unnecessary. Some of these are:
(1) Seating for the jury,and external jury facilities.
(2) In criminal cases, access to the court by the defendant and any police or prison officials and, if the use of it is continued, a dock.
(3) Security. Hopefully this is a problem of more importance in the United States and United Kingdom.
(4) Ample facilities for lawyers in cases with a large number of parties.
(5) Spectator facilities for cases of public importance and interest.
(6) Screens, blackboards for demonstrative aids, models and films.
(7) Storage of and access to large quantities of exhibits.
(8) Easy access and egress of lawyers in callover courts.
With multi-storey court buildings with private lifts for the judges and their staff, there is no reason why a series of courts with different facilities cannot be planned.
In a number of places in the United States I was told of the court hours. One judge sits in trials from 8.30 to 12.30 and 1.30 to 5.30 (even with a jury) and hears interlocutory matters outside those hours. More generally, court hours were said to be 9 a.m. to 5 p.m.
The office of the Court Administration of New York publishes a Bench Book for Trial Judges. It contains a number of useful tables, medical terms and such matters. One of the New York trial judges considered it to be of assistance.
A great number of judges in the United States have the assistance of a law clerk. To some extent this is rendered necessary by the number of written opinions (judgments) which they give on interlocutory matters (which come before them in written form). I was given the impression that a lot of these opinions are drafted, or even written, by the law clerks. The question of judges’ staffing was very much alive when I was in New York. The administrative head of the courts had sacked the judges’ confidential assistants and the judges had commenced proceedings in the federal court alleging a breach of their constitutional rights.
Judges’ staffing can be considered either from the position of a perquisite of office or as assistance in performing his judicial duties. To the extent that the judge’s staff assist him in his duties there may be a need for differing assistance to judges performing different work. As a judge’s requirements will vary from case to case, it may be more helpful to have staff attached to the court administration who can be made available in particular situations.
F. Computers
It has been said that a computer is only a thousand clerks. But what is important is whether one needs a thousand clerks. Three States in the United States are using computers in their courts.
Colorado uses a computer. It assists with jury selection among its other duties.
Michigan has a computer and is progressively putting the work of the courts onto it. So far three courts are on the computer. The three courts are:
The Recorders Court which, as the main criminal court, deals with 12,000 felony cases each year. It has 20 judges. It presently has an individual calendar system but is changing to a master calendar system.
Wayne County Court which has a master calendar system.
Oakland County Circuit Court which has an individual calendar system. It has 11 judges and is the most productive court per judge.
The Recorders Court has 160 cases which are over four months old. Of its 12,000 new cases a year it is only disposing of 10,000 which means it is falling behind. It relies on a plea rate of 85 per cent to keep going.
The primary duty of the computer is case flow management. It shows:
- The full history of each case including each appearance before a judge.
- The daily calendar for each judge.
- The periodic list for each judge.
- Statistics of the case flow.
The computer has details of the parties, including the criminal record of defendants. This involves a problem of privacy, especially in relation to juveniles. Xerox copies of information can be produced by the computer.
Traffic fines are entered on the computer. It may be that if the New South Wales court system wanted use of a computer it could do so in co-operation with the police department.
The computer is clearly an important tool in case flow management. Its introduction to the New South Wales court system seems to me to be principally a question of relative cost.
G. Videotape and Recording of Evidence
Dealing first with the transcription of evidence given during trials, I must say that of tile courts which I visited:
1. None had a transcription service better than that provided by the New South Wales Court Reporting Branch and most services were distinctly inferior.
2. The cost of such services was higher and in some cases spectacularly so. For example, in Sacramento, California, the cost of shorthand reporting and transcription is $US175 per hour of evidence which is about 50 U.S. pages. In San Francisco, the transcript for a trial lasting one week costs $US27,000.
I make no recommendation to change the present system although development in videotape and other technology must be watched, particularly in the light of rising salary costs.
In the United States there is a basic premise of a right to trial by jury on an issue of fact. The increasing congestion of the courts has led to moves to abolish or limit this right. It has been said that “technological advances offer possible solutions to court congestion without raising difficult constitutional questions”.49
One area of technological advance which is receiving considerable attention in the United States is videotape. New processes, for example, photographs and computers, are accepted into legal administration after they are generally accepted by the community. This is a demonstration of the conservatism of the legal profession. Even in the United States, it is not yet suggested that criminal trials are suitable for pre-recorded videotape trial.
There are a number of excellent articles explaining the technical aspects and uses of videotape.50 I see no need to reproduce them here.
The first area of use of videotape is to record the trial. It has advantages for an appellate court in relation to seeing the witnesses, observing misconduct by counsel or the judge and the like. It has some advantages at the hearing in relation to replay of evidence during the trial and exhibiting documents to all. So far as I know it is not yet in day to day use in any system of courts in the United States. Bearing in mind my satisfaction with the present New South Wales system of recording evidence, as I have said, I do not recommend use of videotape for this purpose at this stage.
The second area of use of videotape is to pre-record the trial, that is the evidence of the witnesses. This is only really important in relation to jury trials. The evidence of the witnesses is taken before the judge and recorded. The tape is edited to remove any inadmissible evidence. The jury is then empanelled and counsel open to the jury knowing what the evidence will be. In courts which I attended, both counsel open to the jury before the evidence. The jury then watch the videotape in the absence of the judge and counsel, who can attend to other matters. After the jury have seen the evidence, counsel address and the judge sums up. I do not think that the number of civil jury trials which actually proceed in New South Wales would justify the institution of such procedure here.
The third area is of some interest. It is to pre-record the evidence of a particular witness, for example an expert witness. Such a system would enable experts, such as doctors, to give evidence at appointed times and, it is suggested, would make experts more amenable to giving evidence. It would also be available where a witness is about to leave the jurisdiction, is sick or elderly or for some other reason cannot attend the court.
Elsewhere I suggest51 that more use can be made of the reports of doctors and other experts. But I was told of a case which had to be retried. At the first trial, the evidence of a doctor was read from a deposition. At the second it was given by videotape, from which it was apparent that a number of questions were answered with great hesitation which greatly affected the weight of his evidence. I doubt if the difference is significant in very many cases.
I recommend that Part 27 of the Supreme Court Rules be amended to allow the deposition of a witness to be taken on videotape and for the videotape to be admitted into evidence. The videotape operator would have to be sworn in the same way as a shorthand writer.
Videotape can also be used to record a demonstration of a process, such as a machine in operation or a medical operation, which can then be shown to the court.
The fourth area of use is in recording actual evidence such as the signing of a will to demonstrate the capacity of the testator, a motorist walking a line or an identification line up. Such uses seem outside the scope of this report.
The fifth area is as a teaching and research aid. In particular videotape is used in experiments in relation to jury reactions.
FOOTNOTES
40. Judicial Council of Califomia, Final Report on the Unified Trial Court Feasibility Study and the California Lower Court Study (1975).
41. P. 43.
42. P. 42.
43. infra.
44. “Prettyman Report” (1951) 13 F.R.D. pp. 65-66.
45. pp. 35-37.
46. p. 42.
47. Referred to at p. 43.
48. Note also the comments at p. 43.
49. Kornblum, “Videotape in Civil Cases” (1972) 24 Hastings Law Review p. 9 at 10.
50 Kornblum, loc. cit., p. 9; Kornblum, “Videotape in Legal Education” (1973) 4 A.L.I.- A.B.A.C.L.E. Review p. 4; Kornblum & Rush, “Television in Courtroom and Classroom” (1973) 59 A.B.A. Journal p. 273; McCrystal & Kornblum, “The Pre-recorded Videotape Trial: a Status Report” (1975) 25 Federation of Insurance Counsel Quarterly p. 121.
51. p. 22.
