Parts One and Two

JUDGES’ ANNUAL REPORT FOR THE YEAR ENDING 31 DECEMBER 2001 PARTS ONE AND TWO This work is copyright. Apart from any use as permitted by the Copyright Act 1968, no part may be reproduced by any process without prior written permission. Enquiries to: Chief Executive Officer Supreme Court of Victoria 210 William Street MELBOURNE VIC 3000 Tel 03 9603 6210 Fax 03 9603 6352 This report is also available on the internet at http://www.supremecourt.vic.gov.au JUDGES’ ANNUAL REPORT FOR THE YEAR ENDING 31 DECEMBER 2001 PART ONE 2 May 2002 John Landy, A.C., M.B.E. Governor of the State of Victoria and its Dependencies in the Commonwealth of Australia Dear Governor We, the Judges of the Supreme Court of Victoria have the honour to present our Report pursuant to the provisions of the Supreme Court Act with respect to the year 2001. Yours sincerely J. H. Phillips, C.J. John Winneke, P. W. F. Ormiston, J.A. John D. Phillips, J.A. Stephen Charles, J.A. F. H. Callaway, J.A. J. M. Batt, J.A. Peter Buchanan, J.A. Alex Chernov, J.A. F. H. R. Vincent, J.A. Barry Beach, J. Bernard G. Teague, J. P. D. Cummins, J. Allan W. McDonald, J. T. H. Smith, J. David Ashley, J. John Coldrey, J. David Byrne, J. D. L. Harper, J. G. M. Eames, J. H. R. Hansen, J. Philip Mandie, J. Rosemary Balmford, J. E. W. Gillard, J. Murray B. Kellam, J. M. L. Warren, J. Bernard D. Bongiorno, J. D. J. Habersberger, J. G. R. Flatman, J. Tony Pagone, J. Form of the Report Rules Committee For this year we have resolved to present our Annual The Rules Committee met 18 times during 2001. As a Report in parts. What follows is Part One of those result of its work the Council of Judges made the Rules parts. of Court listed below on the dates there set out. Four sets of rules were made amending Chapter I. The Appointments and Retirements first, Amendment No.16, modified the rules relating to group proceedings in consequence of the enactment of On 5 March The Honourable Mr Justice Ian Gray Part 4A of the Supreme Court Act 1986 and made ceased to be a Reserve Judge. other minor amendments. Amendment No.17 widened the operation of Order 58 in respect of appeals from an On 15 May Mr Michael Joseph Louis Dowling, Q.C. order of the Children’s Court, because of the Children was appointed a Master of the Court. and Young Persons Act (Reciprocal Arrangements ) Act 2000. Amendment No.18 made miscellaneous On 30 May The Honourable Mr Justice Robert Clive changes to Chapter I by way of revision, including, Tadgell retired after 21 years of service. among other things, express provision for costs on an indemnity basis and for the taxation of unpaid On 12 June The Honourable Justice Frank Hollis Rivers disbursements. Amendment No.19 substituted a new Vincent, a Judge in the Trial Division was appointed a Appendix A, reflecting an increase in the scale of costs Judge of Appeal. of 3.94 per cent as recommended by the Costs Co- ordination Committee to reflect changes in the cost of On 3 July Mr David John Habersberger, Q.C. was living. appointed a Judge of the Supreme Court, in the Trial Division. The Chapter II Amendment No.3 Rules, in addition to revising the rules relating the registration of foreign On 18 July Mr Geoffrey Raymond Flatman, Q.C. was judgments, substituted a new Order 12 relating to jury appointed a Judge of the Supreme Court, in the Trial service appeals in consequence of the commencement Division. of the Juries Act 2000. On 30 August The Honourable Justice John Joseph As to Chapter III, the Amendment No.5 Rules Hedigan, a Judge in the Trial Division, retired. introduced provision for "domestic partners" in relation to applications for the grant of administration of a On 2 October Mr Gaetano (Tony) Pagone, Q.C. was deceased estate, following upon the enactment of the appointed a Judge of the Supreme Court, in the Trial Statute Law Amendment (Relationships) Act 2001. Division. Amendment No.6 increased the scale of professional charges because of the goods and services tax. On 30 October The Honourable Mr Justice Alec James Southwell ceased to be a Reserve Judge. Chapter IV of the Rules deals with proceedings for adoption and the Amendment No.3 Rules made During the periods from 2 January to 6 April; 25 June miscellaneous changes in the light of the Adoption to 13 July and 10 to 21 September The Honourable (Amendment) Act 2000. Justice Howard Tomaz Nathan, a Reserve Judge, performed the duties of a Judge. Chapter V consists of rules made under the Corporations Law, rules which are now largely uniform During the periods from 20 to 30 August; 3 to 28 between all States and Territories. The Amendment September; 5 to 31 October; 1 to 16 November and 1 No.5 Rules and the Amendment No.6 Rules were both to 14 December The Honourable Mr Justice Norman made in order to implement amendments put forward Michael O’Bryan, a Reserve Judge, performed the by the Harmonisation Committee established at the duties of a Judge. direction of the Council of Chief Justices. Finally, during 2001 the Chief Justice, the Chief Judge The Council of Judges of the County Court and the Chief Magistrate of the The Council of Judges met on ten occasions during Magistrates’ Court together re-made the rules under 2001. The Executive Committee and the Chief Justice the Courts (Case Transfer) Act 1991 because the and Principal Judges group met, on an average, every Courts (Case Transfer) Rules 1991 were due to expire two or three weeks. after ten years in operation. ANNUAL REPORT 2001 PAGE 1 Rules Made by the Council of Judges Judicial Remuneration Supreme Court (Chapter I Amendment No.16) Rules It is a matter of regret that the Government has, in 2001 - 29 March 2001 effect, rendered inoperative the intention of Parliament Supreme Court (Chapter V Amendment No.2) Rules that judicial remuneration be reviewed regularly by the 2001 - 29 March 2001 Tribunal appointed under the Judicial Remuneration Act Supreme Court (Chapter I Amendment No.17) Rules 1995. The establishment of the Tribunal under the Act 2001 - 30 May 2001 and its annual independent review of judicial Supreme Court (Chapter V Amendment No.3) Rules remuneration thereafter until early 2001 reflect the 2001 - 30 May 2001 recognition that the judiciary be, and be seen to be, Supreme Court (Chapter II Amendment No.3) Rules independent of the Executive Government. In early 2001 - 26 July 2001 2001, the then members of the Tribunal retired from Supreme Court (Chapter I Amendment No.18) Rules office, but the Government has failed to replace them. 2001 - 25 October 2001 Hence, for practical purposes, the Tribunal ceased to Supreme Court (Chapter III Amendment No.5) Rules exist from early 2001. Late last year the Government 2001 - 25 October 2001 sought to amend the Act and it was assumed that it Supreme Court (Chapter IV Amendment No.3) Rules intended to fill the vacancies on the Tribunal once the 2001 - 25 October 2001 amendments were passed, although such an intention, Supreme Court (Chapter I Amendment No.19) Rules if it existed, was not communicated to this Court. It is 2001 - 29 November 2001 also accepted that the passage through Parliament of Supreme Court (Chapter III Amendment No.6) Rules the Government’s proposed amendments has been 2001 - 29 November 2001 delayed by amendments that were sought to be introduced by the Opposition. The amended legislation became law on 3 April 2002, but to this day, the Government has not appointed new members to the Practice Notes Tribunal. The Government’s inaction in this regard has There were four Practice Notes published during the meant that, in contrast with the situation in other States year. and at the Commonwealth level, the salaries of the Practice Note No. 1 – Transcript in the Specialist Lists Judges and Masters of this Court have not been Practice Note No. 2 – Building Cases reviewed after the end of the year 2000. In the result, Practice Note No. 3 – Building Cases Arbitrations the judicial salaries of this Court have dropped below Practice Note No. 4 – Supreme Court Divisional List those of comparable courts in Australia, including those whose workload is significantly less than that of this Court. The consequence is that the recruitment to this Judicial Resources Court of high calibre practitioners has been put at risk. In our last Report we stated, “Throughout 2000 the Judges and Masters of the Court have had to address an ever increasing workload of complex and lengthy Superannuation Surcharge litigation with judicial resources which are patently We understand that it is the intention of the inadequate for the task.” That situation has continued Commonwealth Government to reduce the surcharge during 2001. The urgency of redress of this matter from 15% to 10.5%. This will, however, constitute but cannot be overemphasised for in the year ending 30 a minor amelioration of the present unfair and June 2001 this Court took in 4,840 matters (not discriminatory imposition on Judges and Masters. We including probate). continue to urge the Commonwealth Government to review the effect of this legislation upon the members of the Court. Budget Issues The Court has continued to have allocated to it by the Department of Justice an allocation which lacked any Public Information Desk rationale or logic in its original composition and which During the year a public information desk staffed by has been eroded by 12 years of annual “productivity volunteers from the admirable Court Network gains” – a euphemism for cuts of at least 1.5% per organisation and a security officer was established in annum.

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