PARLIAMENT OF VICTORIA

LAW REFORM COMMITTEE

Members Present

Mr M. Thompson Mr D. Davis

Mr A. McIntosh Mr T. Languiller

Mr P. Katsambanis

Also Present

Ms P. Raman, Executive Officer/Director of Research, Parliament of Victoria Law Reform Committee

Ms S. Vohra, Research Officer, Parliament of Victoria Law Reform Committee

Review of Legal Services in Regional and Rural Victoria

Minutes of Evidence

Melbourne - 16 May 2000

Witnesses

His Honour Chief Judge Glenn Waldron, AO, County Court of Victoria

Mr Findlay McRae Registrar, County Court of Victoria

Mr James Hartnett Chief Executive Officer, County Court of Victoria

CHAIR - Firstly, welcome to the hearings this morning. Hansard will be taking a transcript of proceedings. We can provide names to Hansard of those that are speaking here this morning, so the provision of names will not be necessary per se. We thank you for taking the time to contribute to our hearing today.

Chief Judge Waldron - I start with an apology. One final statistical detail was left off attachment B, if I could just provide that to the committee. It relates to the Melbourne statistics, so in one sense it is not immediately of concern to the committee's inquiries.

CHAIR - I make one other comment, too. Half an hour has been allowed for our time this morning. If you could draw our attention to relevant aspects of your report over the 10 minutes or so and perhaps allow a little bit of time for committee members to then ask questions of you and your colleagues.

Chief Judge Waldron - I was proposing to really, I hope, quite briefly make a general observation as to the County Court's involvement concerning circuit work. We would hope that when the committee has the opportunity to read the submission, that these comments which I make today may be, to a degree, superfluous. We would hope that the submission generally speaks for itself.

The first thing I would wish to say is that we believe that we cannot overemphasise the importance and the success of the civil initiative, as we call it; that is, the operation of order 34A under the County Court Rules and the Crimes (Criminal Trials) Act and along with that the CLMS, the case and list management system, which the court is evolving in regard to, first, the criminal area and, ultimately, the civil area.

What we would simply say is that the whole emphasis of both those initiatives - the Crimes (Criminal Trials) Act, of course, is a legislative initiative - nevertheless the court's emphasis is to be as complete and as evenhanded as we can in regard to country litigants as well as city litigants.

The operation has to be moulded, of course, to the particular differences that exist in circuit cases, so far as listing of circuit cases is concerned and the like. Nevertheless, the objective - and we believe it is an objective which is being achieved - is to provide equal access to justice for country litigants to that enjoyed by their city counterparts.

We have endeavoured to briefly tell the committee just what is involved in those initiatives. But I would say to you that if you wish to have those initiatives further explained, I would certainly encourage the committee to invite Judges Jones and Harbison to speak further to those initiatives, particularly Judge Jones, because the Crimes (Criminal Trials) Act having been proclaimed only from 1 September last year, it is only now that we are moving into a more positive application of that act so far as circuit matters are concerned. Frankly, we believe that the prospect of very significant improvement in control of lists and disposition of lists will result from the Crimes (Criminal Trials) Act and the CLMS initiative.

As a side wind, I just think that I ought to say this: Professor Sallman and Mr Wright's report 'Going to Court' does make a reference - I have not read it extensively as yet but I have become aware of their reference - to the civil initiative. I am obliged to say that it is really quite misleading as to the success of the civil initiative. The reality is that at this point the time lines that the court has set itself - I might say that they say we have not set time lines, but indeed we have - are now being achieved. So that the future there, I think, is an encouraging one.

I think it is necessary to say that when looking at the County Court's performance on circuit, the committee really will be looking substantially at the court's performance on circuit because I think it is fair to say - and if Mr McLean is still with us he will correct me later - save for murder trials, the Supreme Court substantially does not deal with criminal matters on circuit. It is in fact in the city as well that the so-called concurrent indictable jurisdiction shared between the two courts is very substantially dealt with by the County Court and has been for many years. But I think that circumstance is even more so on circuit. So that we do not complain about it but substantially the circuit load of the courts is borne by the County Court.

If we are complaining at all, it is in regard to what we see as the very urgent need for more appropriate resourcing of the County Court's activities. There is a positive devolution, in both the civil initiative and the Crimes (Criminal Trials) Act procedures, of administrative responsibility on the circuit registries. That is a very positive thing and a good thing insofar as it enhances the effective contact between the registries, thus the court, and the local practitioners and local litigants; and, of course, with the local motivation from the registry staff, the administrative support is that much more effective.

As the submission indicates, in a circuit or country registry the staff are beholden to three courts. The local registrar will be the deputy prothonotary in the Supreme Court, he will be a deputy registrar in the County Court and he will be the registrar and in the more populous areas the principal registrar in the Magistrates' Court. Likewise, the staff are beholden to those three jurisdictions. Nevertheless, the funding is through the Magistrates' Court. In these days of close control of court budgets, that does produce difficulties insofar as staff being able to fulfil the duties which we ask of them in regard to these initiatives that I refer to.

We are proposing to endeavour to address this with government. But we do believe it is obligatory to say to this committee that the only concern we have as to the ultimate efficacy of both those initiatives is satisfactory funding at the administrative level and also, as the submission indicates, we believe it is really very much needed for a temporary increase in the numbers of the judges.

Natural attrition will always, of course, account for a circumstance, which has never occurred in my time, but one can theoretically postulate a circumstance where it will be found that there are more judges than are required. Natural attrition in a large court - there are always judges retiring over a given period - will allow that to be redressed. We have made, unsuccessfully, submissions to government to temporarily have the number of judges increased. In this interregnum period in the criminal area, where we are dealing with the pre- Crimes (Criminal Trials) Act cases along with the Crimes (Criminal Trials) Act cases as well, the withdrawal of three listing judges from the trial work has had an adverse impact on the ability of the court to meet its time lines in the criminal area. That is an inhibiting factor. Of course, if government changes its view and provides those additional judges, that will all be the better.

Without going to the particularity of the submission, and I hope you would not want me to do that, I think that is the overview that we would wish to give you, prior to any questions that you and your colleagues would ask of us, Mr Chairman.

CHAIR - Thank you very much.

Chief Judge Waldron - I am sorry, I should have said - and I should have been prompted by Mr McLean's comments when we were seated in the audience while he was making his submission to the committee - we of course do have our internet site. In fact, it was the first site outside of America to be included in the top 10 court internet sites as perceived by whoever it was who makes that judgment. We have not made much song and dance about it but the reality is that all of the things that Mr McLean was talking about, court lists and so on, that are on the Supreme Court site are on the County Court site.

Having said all that, of course, the vital thing is to make effective contact between regional Victoria and the court. The judges, of course, are all housed in Melbourne but go on circuit to the circuit courts. There is the physical contact of the judges going on circuit as regularly as we can afford with the number of judges we have. Additional to that, of course, we have got the videoconferencing and the other IT links that enhance the performance.

CHAIR - Thank you. I would like to invite my colleagues to pose a few questions.

MR McINTOSH - Judge, in relation to country circuits, is there a problem in relation to the backlog of cases and is there a difference you can identify between city listed cases and country listed cases? Chief Judge Waldron - It varies quite markedly. Down the years, certainly down the more recent years, Morwell and Warrnambool have been particular trouble spots so far as the civil list is concerned. As our submission indicates, the lack of adequate court facilities in those two locations has exacerbated that problem. We have tried to overcome it by sitting civil Morwell circuits at Sale and WorkCover and a civil circuit at Warrnambool and Hamilton this year. We try to be as flexible as we can. But we have, if you like, the irony of not sufficient court space in certain locations, particularly Morwell and Warrnambool, and yet, if you like, more than enough in other locations.

The system has a handsome large court at Geelong. Ballarat is about to open at the beginning of next month. The challenge in those courts, because of the restricted number of judges we have, is to adequately populate those courts. The trouble spots are Warrnambool and Morwell in civil and Morwell and Geelong particularly in crime. These initiatives which we have undertaken are having their effect but at the moment they are the areas that give us concern and have been chronically a concern to us.

I think I should also say to you that the submission indicates that we have introduced a procedure whereby two judges at the more populous centres will sit at the one time doing crime together, attacking the list jointly, rather than the one judge being there for the particular circuit. The problem always is that you come to the city with a large number of judges sitting in a particular jurisdiction and if one judge is occupied in a long running trial then other judges will be available and by and large the throughput is not embarrassed. Whereas, of course, when you go to a circuit court with one judge sitting, if there is a lengthy trial then that is the end of it for the circuit. That situation is ameliorated, at least to a degree, where you have two judges sitting in crime together.

It may be fairly said, why didn't we think of it earlier? I can only say to you that this is the year we have started it and there will be more of it, I am confident, and that will help attack that particular problem where we have the court space to achieve it.

MR McINTOSH - In relation to the temporary judges, are you talking about retired judges?

Chief Judge Waldron - No, I am talking about increasing the standing strength of the court. We contemplate it to be necessary probably only for about two or three years. In the submission we made to government, we pointed out that in the next five years I think there are about five judges who will be due to retire, so that at any given time there may be a short time where you have more than you need to have. But natural attrition can always solve that embarrassment, if it is seen as an embarrassment, of having too many judges. MR McINTOSH - Am I able to ask how many judges you have been talking about?

Chief Judge Waldron - We have sought three judges for the city and an additional judge for circuit; a total of four. I think the department sought three and did not prevail with the Economic Review Committee.

MR McINTOSH - Can I deal with the issue of staff on circuit courts. You mentioned that they have a split loyalty between the County Court, Supreme Court and the Magistrates' Court. They are paid out of the Magistrates' Court budget. Does that mean that he who pays the bills calls the tune in that case?

Chief Judge Waldron - Well, I would first of all say that I think it would be a happier description to say split responsibility rather than split loyalty. I might say that we believe that the relationship between the circuit registries and the city is good. There was a degree of neglect, for which I hold myself responsible, some years ago, in that regard. But more recently Mr Kearney, who was acting registrar for many years, was a particular driver of the initiative of having the circuit registrars coming in bi-monthly, not all of them as working party members, and then an annual registrars conference in Melbourne. That, along with the IT WAN connection and so on, has all improved very much the sense of homogeneity within the County Court.

Having said all of that, I do not criticise the Magistrates' Court per se for this, but they have a restricted budget and they find it difficult, I think, to accommodate the additional requirements which we make of the circuit registry staff. As our submission demonstrates, there has been an allowance made of $123,000, I think, in total over the last three years from retained fees to help support the civil initiative requirements. We are yet to go to government to seek appropriate funding in regard to the Crimes (Criminal Trials) Act.

All we would say is that we believe that it really ought to be not from retained fees but the budget increased. If that is increase of the Magistrates' Court budget rather than an increase of the County Court budget to be handed on, as it were, to the Magistrates' Court, that is a matter of logistics, I suppose. But to properly service the country litigants, we believe that recognition has to be made of the need to increase the administrative support in a permanent fashion.

The trouble with retained fees is that every year there is an auction, if you like, for those fees. Each court has its own particular priorities and when we are seeking funds for civil initiative and Crimes (Criminal Trials) Act, the other two courts and VCAT will have their very worthy claims for the same fees, so there is that unsatisfactory uncertainty as to the continued financial support in that regard which concerns us. MR McINTOSH - This is said with the utmost respect to the staff in country areas, but as recently as last month I was at a Mildura court and there you had three staff who were handling a sitting County Court and a sitting Magistrates' Court, together with a plethora of people who were lining up to do things like domestic violence intervention orders, the usual criminal matter and the occasional civil matter.

It appeared to me when I was actually at the registry office watching and talking to people for in the order of half an hour, in that time it seemed that there was one registrar who was dealing with members of the public with the usual inquiries about where do I go, what do I do and where is the toilet; and someone else dealing with the constant flow of professionals, the lawyers, police and other people; and there was another clerk who was occasionally inputting stuff into a computer, then dashing into the Magistrates' Court to deal with the witnesses. That was my experience.

My observation is perhaps a lack of resources. But what about a differential in the qualification and ability to deal with the technology that you were talking about? Is there a differentiation you perceive between the staff who are employed specifically by the County Court to operate that equipment and adopt that technology in Melbourne and the qualifications of staff in the country?

Chief Judge Waldron - I will give Mr McRae a chance to have a say in that regard. My understanding is that, save for the larger courts, there is not a particular member of staff who has sole responsibility for County Court matters. Mr McRae may be able to assist the committee there.

Mr McRae - I would say that there is not a differential in terms of the qualifications between someone dealing with Magistrates' Court work and County Court work. However, the type of administrative support needed for the criminal list initiatives would lend itself towards more senior staff but the skills needed are similar for both courts.

The Magistrates' Court runs a computer system. We are moving to an integrated computer system ourselves. With the introduction of the new building in the city, we intend that our computerised case management system will be state-wide. We are hopeful that the Magistrates' Court will adopt the same technology that we are proposing to adopt at this stage. But the skills are pretty well identical.

There is a trade-off between in-court support and the over-the-counter support that you have seen. What I have noted through my travels through the circuit registries recently is that the demands that you saw from the Magistrates' Court, in terms of the clerk being permanently within the court, has meant that there is less capability for the circuit courts to provide over- the-counter assistance to the people who come in for intervention orders and the people who come in off the street.

That is a Magistrates' Court type workload, it is over-the-counter type work, whereas in the higher jurisdictions we are dealing more with case management techniques, negotiating with solicitors and having highly skilled registrars in that area. The Magistrates' Courts have registrars focused on providing over-the-counter advice, especially in regional centres to people who come in off the street.

MR McINTOSH - Is there an argument for a discrete registrar who deals with just County Court work in these areas?

Mr McRae - Once again, that is a workload issue. In some courts you would have very few County Court writs issued and presentments filed, so I think that needs to be looked at on a court by court basis. Certainly I would not like to see the County Court registrar divorced from the Magistrates' Court work, Supreme Court work, Coroner's Court work or the Children's Court work, completely under the banner of the County Court. It might be a selfish reason for me to ask for that, but in terms of the workings of the circuit courts, they really need to wear the four hats.

I would say that in terms of support of the criminal initiatives, which is a very sophisticated method of case management, which has been brought in state- wide, we would be looking at a more senior registrar - not the registrar in each court because we have to remember that the numbers of people working from these courts might be from three people to 12 people, they are not big enterprises - I would be looking at a standardisation of the qualification or classification of the officer who deals with the County Court work.

MR KATSAMBANIS - Chief Judge, following on from Andrew McIntosh's query about court facilities and the obvious lack of adequate facilities in some areas of the state, has the court explored any more innovative solutions to the problems of court space? What comes to my mind is that in a lot of regional centres there are municipal chambers available, particularly during the day, and in a lot of cases available simply due to amalgamation. Has that avenue been explored to provide further space?

Chief Judge Waldron - The overwhelming preponderance of County Court work on circuit is jury work. The criminal trials, of course, all have juries. There are non-jury civil matters but I think it is fair to say that the preponderance of civil circuit work is personal injury work still. That will, of course, increase with the reintroduction of common law claims in the industrial accident area. I think logistically that would be difficult.

We also come back, of course, to the availability of judges. If, theoretically, we had a second judge available to go to Warrnambool, then it could possibly be considered seeking out the local council chamber. If one goes back far enough in time when the courts have not been available because of renovation, council chambers have been used, but they are designed for another purpose so it is not easy to get effective use from them, I have to say.

MR KATSAMBANIS - As far as the implementation of information technology, we heard from Mr McLean that the Supreme Court forms generally are becoming available electronically for downloading by any practitioner or individual across the state. I take it that is the case for the County Court as well?

Mr McRae - Yes, on the internet site are the commonly used forms.

Chief Judge Waldron - The directions hearing judge has a set form of orders and they are available to the practitioners so that if they reach common ground as to what interlocutory orders they wish - the judge, of course, determines whether they are appropriate, because we limit interlocutory work to make the system more effective - but the forms of orders are there for them to prepare for the judge's review.

MR KATSAMBANIS - Is there any facility for electronic lodgement of the court forms at the moment?

Mr McRae - Not at this stage.

Chief Judge Waldron - I believe so in the Magistrates' Court. But that is very definitely what we are aiming for with the CLMS, electronic lodgement.

MR KATSAMBANIS - Is there a time frame for that?

Chief Judge Waldron - Certainly the hope and I would like to think the expectation is that it will be in place by the time the new court is built and that time frame there is February 2002.

MR McINTOSH - In relation to some of the country courts I observed in this role and in a previous life, certainly as a member of the profession as a barrister, I was always concerned about some of the facilities in the court. It was a longstanding problem, it was not as if it was something that was created over a short period, it was a longstanding problem.

You mentioned Warrnambool, and I have been to the Shepparton court and recently Mildura. While there has been a gradual improvement of those court facilities, things such as interview rooms, large areas for the public to meet and to sit down inside the court, purpose designed courts for civil work as opposed to criminal work, are all luxuries that a member of the profession would love to see. Is it something that is shared by the judges? That this is a pretty critical part of the role of justice in these country towns. Chief Judge Waldron - Yes. We were enthusiastic contributors to the court design manual which was put out many years ago and the court very much recognises the need for interview rooms and the facilities generally within a court building additional to the courtrooms themselves. I think the need is that much more in civil litigation because of the weight of numbers of people, nevertheless, naturally enough you need safe areas and discrete areas for vulnerable witnesses in criminal trials.

I can only say, as a general motherhood statement I suppose, that the court would certainly wish to see adequate ancillary facilities in every court, whether it be metropolitan or in the circuits. Of course, that is being provided at Geelong, Bendigo and Ballarat. I think the government - I do not think, it is a statement of government that Mildura and Warrnambool are going to be rebuilt, so that the trend is there. We would say that there is a pressing need for the facilities at Morwell to be improved. It is not satisfactory at all there.

CHAIR - Judge, two questions perhaps to round off, taking into account the time. The first one is: what best practice models in terms of innovation would your staff be looking at in overseas jurisdictions or interstate?

Chief Judge Waldron - There is a risk of being complacent as to one's own court's performance but I would have to say to you very frankly that in judicial administrative affairs there is a curious resistance to recognise the achievements of intermediate courts vis-a-vis Supreme Courts. We are very much alive to what is occurring interstate. The Chief Judges have a conference which is regularly held more than once a year and I am therefore au fait with what is happening interstate at the intermediate level. The AIJA in its various activities gives us that same information in regard to the spread of courts.

In my time I have been to America and I would have to say to you that America is very surprising in its, I think, lack of sophistication in regard to court administration. There are exceptions to that but by and large, based on the counties, so often they are really inadequately funded. In the UK things have changed materially there since I was there. Of course, we will all have to wait the Lord Woolf reforms to see how they are progressing. The present government is pressing forward with reforms in the criminal area.

I can only say that we are aware of all those initiatives but I would go on to say that we are firmly of the belief that the civil initiative is working really splendidly and I would like to think that the broad spread of legal practitioners would support that.

Frankly, the Crimes (Criminal Trials) Act reforms have the potential to be spectacular in their success, in my view, because not only will they shake out of the system so many inefficiencies and so much unsatisfactoriness that previously was there but the reality is that they are demonstrating themselves to be genuinely fair to Crown and accused alike. So they really are splendid reforms and it is a matter of applying them as effectively as we can to rural Victoria as has started to be done in the city. But it is still comparatively early days there, it is six months or so only since the act same into operation.

Mr McRae - Can I make a further comment in terms of administration? I have recently come from the Federal Court, which has changed to a docket system of management. I have had the advantage of looking at the American systems with the docket system of case flow management and also some experience of the Commonwealth courts. The comment that I would like to make is to draw the committee's attention to page 2 of the report, which sets out that Victoria has the highest volume of lodgements per registry staff member and goes on to say that the number of staff assisting judges within the court is the second lowest number. So in terms of administration we are certainly running a very tight ship throughout the state.

Chief Judge Waldron - Mr Chairman, I think I should also have said that this is in Melbourne only at the moment but the Melbourne registry has benchmarked its performance over now two years, going into the third year, and that is a very useful self-analysis and indeed it is demonstrating that the performance of the registry is good. I think I probably should also say that the court is committed to business excellence ideals and we have enthusiastically adopted that. I think the Department of Justice has recognised our worthwhile endeavours in that regard.

CHAIR - Is there a level of coordination between the three main court levels - Magistrates', County and Supreme Court - in the development and application of technology to assist with the processing of cases and the implementation of new technology?

Chief Judge Waldron - I take it that the committee is conversant with the criminal justice enhancement program. That certainly, as we perceive it at all events, contemplates common IT support for the system.

Judge Jones, who is one of the three judges in charge of administering the Crimes (Criminal Trials) Act, for the last six months of last year was active in conceiving and, if you like, encouraging the CLMS initiative. As Mr McRae said earlier, we hope, rather than can say it will be the fact, that the technology will be common between the three courts. We very earnestly believe it should be and I would have thought that CJEP would certainly contemplate it to be.

Mr Hartnett - I was just going to add that we do cooperate very much with the Magistrates' Court, certainly in matters of common interest in the technological area. As I speak, the Magistrates' Court is rolling out a new generation of hardware under the banner of the CATCOE system. We took a decision last year to become involved in that and we have recently rolled out, with the assistance of the Magistrates' Court, on-line facilities for our judges who are on circuit. I think there is a great deal of cooperation between the courts and a great deal of goodwill.

At a CEO level, Mr McLean, myself and the CEOs of VCAT and the Magistrates' Court meet fortnightly. Hardly a day would go by that we would not discuss some common problem. I think it is also worth noting in the IT area the roll-out of videoconferencing in the courts. Those facilities are used by all four jurisdictions, including VCAT, so I think there is a great deal of common endeavour between the jurisdictions. Indeed, my perception as a relative newcomer to the Victorian court system is that there is a good deal of goodwill, certainly at the CEO level and I hope that permeates through the other levels as well.

Chief Judge Waldron - I think there is every good reason to be optimistic that there will be a unified system as I have described it.

CHAIR - Time is moving swiftly and we have perhaps used our component of time for this morning's discussion. Thank you very much for the written submissions you have forwarded to us, which our staff have gone through carefully, and thank you for taking the time today, Chief Judge Waldron, Mr Hartnett and Mr McRae.

Chief Judge Waldron - Thank you, Mr Chairman. We do say in our submission that a practice note is about to be put out in regard to the Crimes (Criminal Trials) Act and I have promised to the committee a copy of it when it is actually published, which ought to happen I think within the next week or two. Thank you, gentlemen.

CHAIR - We will be pleased to attend the launch of your internet site as one of the top 10 in the legal world.

The witnesses withdrew.