9.1 ThE PRObLEm
This review was prompted in part by widespread concern about the costs and delays associated with litigation. The Bar contended in its submission that delay itself can lead to significantly higher costs of litigation as the additional time allows parties to become involved in protracted interlocutory disputes.381 As Chief Justice Gleeson observed in his State of the Australian Judicature Address:
Litigation is a perfect example of Parkinson’s law: work expands to fill the available time.
At present, particularly in the higher courts, there are significant delays before trial dates are fixed. Moreover, in many cases, trials do not proceed on the dates fixed. There may be many reasons for this, including the unavailability of a judge to hear the matter.
The commission considers that setting trial dates early is one method by which costs and delay may be better managed. Earlier and more determinate trial dates are obviously in the interests of all participants in the civil justice process. It is, however, appreciated that there are many logistical and resource issues that need to be taken into account in fixing trial dates. These difficulties are compounded by the fact that the court does not have control over many of the relevant variables. To a large extent, fixing earlier and more determinate trial dates will be more feasible if a number of the other recommendations in the present report are implemented.
In the submissions there was significant support for the early setting of trial dates.
9.2 POSITION IN VICTORIA
Different courts have different strategies in this regard. The Supreme Court recently decided that in cases that are not managed, trial dates will be set after mediation and after witness statements and court books have been filed with the court.382
362 Submission CP 33 (Victorian Bar). 363 Effective 3 October 2005, available
at <www.hmcourts-service.gov.uk/ docs/tcc_guide.htm/section5> at 1 July 2007.
364 Submission CP 33 (Victorian Bar). The case management information sheet is Appendix A to the Technology and Construction Court Guide. 365 Submission CP 33 (Victorian Bar). 366 Submission CP 10 (Peter Mair). 367 Submission ED2 5 (Judge Wodak). 368 Submission ED2 4 (Judge Graham
Anderson).
369 Consultation with the Supreme Court of Victoria (9 October 2007). 370 Submission ED1 8 (IMF (Australia) Ltd). 371 Submission ED2 3 (Steve White). 372 Submission ED2 10 (Victoria Legal Aid). 373 Submissions ED2 7 (State Trustees);
ED2 17 (QBE Insurance Group); ED2 2 (Confidential submission, permission to quote granted 17 January 2008); consultation with the Supreme Court of Victoria (9 October 2007). 374 Submissions ED2 4 (Judge Graham
Anderson) and ED2 3 (Steve White). 375 Submission ED2 4 (Judge Graham
Anderson).
376 Submission ED2 4 (Judge Graham Anderson).
377 Submission ED2 3 (Steve White). 378 Consultation with the Supreme Court
of Victoria (9 October 2007). 379 Consultation with the Supreme Court
of Victoria (9 October 2007). 380 Similar to what occurs at and following
a pre-hearing conference in the Magistrates’ Court.
381 Submission CP 33 (Victorian Bar). 382 Supreme Court of Victoria, Practice
Note 4 of 2006 (2006) [5] <www. supremecourt.vic.gov.au/wps/ wcm/connect/Supreme+Court/ Home/Practice+and+Procedure/ Practice+Notes+%26+Statements/ SUPREME+-+Practice+Note+No.4+of+ 2006+%28PDF%29> at 15 February 2008.
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The majority of cases in the Commercial List
are offered a fixed listing within three to four months (unless the parties desired otherwise), and the opportunity to be heard even earlier where the parties agreed to prepare in advance and to be placed on a ‘standby listing’. Parties to cases on ‘standby’ are warned their case will be listed on a specified day if time becomes available due to the settlement or adjournment of other cases.383
The County Court sets trial dates early, as does the Magistrates’ Court.
9.3 OThER mODELS
Federal Court Fast Track List
The recently introduced Federal Court Fast Track List aims to offer trial dates within six months from the commencement of the proceeding. At the initial directions hearing, known as a scheduling conference,
the presiding judge will set a trial date for the case which, except in urgent cases, will be between two and five months from the date of the Scheduling Conference, depending on the relative complexity of the case. Urgent cases will be heard on shorter notice.384
The scheduling conference occurs not less than 45 days from the date the application was filed.385
Ontario
A report by The Hon. Coulter A Osborne, QC to the Ontario Attorney-General (‘the Ontario report’) in November 2007 recommended that the Office of the Chief Justice of the Superior Court and the Regional Senior Justices of each region consider options to:
(a) Eliminate the requirement of personal attendance at Assignment Court and replace it with a new practice for setting trial dates (e.g., vest trial coordinators with the authority to set trial dates; use of an administrative form, jointly submitted by the parties, to permit trial dates to be set; use of teleconference hearings for Assignment Court; use of the Internet for fixing tentative trial dates).
(b) Direct and enforce time limits on trials, to ensure greater certainty in trial duration and improved trial scheduling.
(c) Adopt and consistently enforce a policy with respect to adjournments.
(d) Establish outside time standards within which trials ought to be heard, to be considered when scheduling trials and to provide a benchmark for litigants to know when a trial date is likely to be available upon the case being set down for trial.386
9.4 RATIONALE FOR ThE RECOmmENDATION
Various studies over the past few decades have found that the early setting of trial dates leads to the early settlement of cases, which reduces delay. For example, an inquiry by a Delay Reduction Committee comprising representatives from the NSW Supreme Court, the profession and the Attorney-General’s Department revealed problems of delay in the Common Law Division of the Court. The committee recognised that firm trial dates lead to more effective preparation and settlement.387
Justice Marks, writing about the Victorian Supreme Court’s Commercial List in 1992, identified that the ‘best lever to settlement’ is the fixture of a firm trial date.388
United States studies have produced similar results. The results from a Rand study were that an early trial date tends to save money and time.389 A National Center for State Courts (NCSC) study in the
United States found that when firm trial dates were set there was a greater than normal number of settlements just before trial, as a result of increased activity by attorneys.390 Another study found that
the single most effective stimulant to settlement was the scheduling of a firm and unavoidable trial date.391
As discussed in Chapter 1, Professor Scott identified 10 ‘concerns’ which he contends need to be taken into consideration in connection with the judicial management of litigation. As he notes, proactive judicial case management imposes discipline on the courts and the courts must have the capacity to respond to the demands for their services in accordance with the standards and goals of the case management system. One important element is a firm date for hearings.392
The commission considers that further consideration should be given to means by which trial dates could be set earlier than at present. It is recognised that there are many ‘variables’ over which the court does not have control and we are mindful that the overwhelming majority of cases do not proceed to trial. It is also appreciated that the courts are very aware of these difficulties and have taken and are continuing to take various initiatives to achieve earlier and more determinate trial dates.393
The commission understands that there is a tension between the desirability of setting early trial dates and the necessity to take account of the largely unpredictable factors that influence the availability of judicial officers to hear matters on a designated date. In the higher courts in Victoria this problem is compounded by the fact that judicial officers deal with both civil and criminal cases. In recent years, the increased demands of long criminal trials appear to have had a significant impact on the judicial resources available to deal with civil matters.
To some extent these difficulties would be reduced if the length of civil trials is reduced and more determinate. Again, this is an area where a number of the recommendations in the present report, if implemented, may assist.
One of the practice notes in the Supreme Court provides that ‘at the conclusion of the time estimated for the trial, the trial judge will stop the trial and make arrangements for the resumption of the trial at a later date’.394 The commission supports this approach as it endeavours to make the parties
responsible for trial estimates and it helps ensure that judges are available to hear trials on the date set in circumstances where the immediately preceding trial is likely to exceed the time initially allocated. The commission also notes that although the County Court sets dates early, it still encounters problems. Once the trial date is set proceedings need careful supervision to ensure that they are ready for trial. It is sensible to have the trial commence as soon as possible after the procedural steps have been completed. However, there may be problems with compliance where there has not been supervision of the interlocutory steps before trial.
Submissions
Submissions in response to the Consultation Paper
There was significant support in the submission in response to the Consultation Paper for setting earlier trial dates. For example, the Law Institute ‘believes that matters should have trial dates set from the outset, which would encourage greater adherence to timetables for the completion of interlocutory steps’. In addition, the Institute noted that ‘the advantage of setting the trial date early in the process means that when parties attend mediation, they already know when the trial will be and, therefore, prospects of settlement are maximised’.395
Slater & Gordon and Hollows Lawyers suggested that the best way to facilitate the early settlement of claims is to fix a trial date at the earliest possible stage. The Building Practitioner’s Society also supported the early allocation of a trial date.396
Corrs Chambers Westgarth submitted that to improve the efficiency of the case flow management of matters, particularly in the Supreme Court, it is important to fix a trial date early in the proceeding, or at least as early as circumstances may permit. It further contended that:
Currently there is great uncertainty and considerable delay in obtaining a date for trial and that when the dates are eventually fixed they extend into periods that often sit uncomfortably with clients’ expectations. Such delay and uncertainty could be removed by fixing a trial date early in the proceeding and giving the parties sufficient time to prepare. Once fixed, a trial date should not be vacated by the court without extraordinary grounds or irreparable prejudice.397
The Supreme Court noted in its submission that it has decided that in certain cases trial dates will be set after mediation and after witness statements and court books have been filed with the court.398
State Trustees commented that:
It is often the case that even though parties may have prepared for trial and engaged counsel, they are unable to have the matter heard by a judge on the scheduled day due to a variety of reasons including the unavailability of judges or another matter having exceeded its allocated court hearing days. As a consequence, litigants unnecessarily incur substantial costs. Reform of the court’s listing or case management practices may alleviate this problem.399
383 Supreme Court of Victoria, Annual
Report 04/05 (2005) 21.
384 Federal Court, Notice to Practitioners—
Directions for the Fast Track List (2007)
above n 189, [6.6]. 385 Ibid.
386 Osborne (2007) above n 170, xviii-xix. 387 James R T Wood, ‘Case Management
in the Common Law Division of the Supreme Court of New South Wales’ (1991) 1 Journal of Judicial
Administration 71–87.
388 This is something Marks J believes can be achieved only in a managed system: Kenneth Marks, ‘The Interventionist Court and Procedure’ (1992) 18
Monash University Law Review 1, 10.
389 James Kakalik et al, An Evaluation of
Judicial Case Management Under the Civil Justice Reform Act (2000) xxiii.
390 Larry Sipes et al, Managing to Reduce Delay (1980) National Center for State Courts (USA).
391 Ibid.
392 Ian Scott, ‘Caseflow Management in the Trial Court’ in Adrian Zuckerman and Ross Cranston (eds), Reform of Civil Procedure: Essays on ‘Access to Justice’ (1995) 1, 17–29.
393 As identified above, the Supreme Court decided that in certain cases, trial dates should be set after mediation and after witness statements and court books have been filed with the Court: Supreme Court, Practice Note 4 of 2006 (2006) above n 382.
394 Ibid [9].
395 Submission CP 18 (Law Institute of Victoria).
396 Submissions CP 20 (Slater & Gordon); CP 52 (Hollows Lawyers).
397 Confidential submission CP 42 (Corrs Chambers Westgarth, permission to quote granted 14 January 2008). 398 Supreme Court, Practice Note 4
of 2006 (2006) above n 382. The procedures set out in the Practice Note apply to all cases other than: a. cases in those lists where the managing judge is also the trial judge; b. cases which have been set down early by or at the direction of the managing judge; and c. cases which are in the nature of appeals or reviews.
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WorkCover expressed the view that:
A lack of certainty of court hearing dates can cause problems with witness availability or issues of ’stale‘ evidence, particularly in a medico-legal setting … the closer a date can be given once readiness for trial is confirmed the better with regard to both delivery of timely outcomes and cost effectiveness.400
The Magistrates’ Court noted that it has considered the certificate of readiness process. However, it was felt that the present arrangement of rule-imposed time limits for the taking of steps together with the fixing for trial following the completion of a pre-hearing conference or mediation was considered preferable. It enabled the court to exert greater control over the proceeding by fixing the times for steps and fixing the time of the conference or mediation.401
Submissions in response to Exposure Draft 2
A number of submissions expressed support for the draft recommendation incorporated in the second exposure draft. Clayton Utz contended that earlier and more determinate trial dates were of ‘critical importance’.402 Another submission discussed experiences in the Supreme Court:
At our abortive trial date, the Master said that the matter was likely to settle in a day or two not the 8-10 days allocated and she can’t have Judges sitting around doing nothing. We were bitterly disappointed at this attitude plus that the Court couldn’t organize itself one year in advance for our trial, knowing our dire circumstances, and then hitting us with another 9 month wait.403
Maurice Blackburn submitted that:
It is the prospect of trial and the certainty of getting started on or near that trial date that promotes resolution, which in turn clears court lists. If an insurer considers that a case has reasonable prospects of not getting a start, either because of a clogged court list or lack of judges, there is a good chance that less of an effort will be made by the insurer to resolve the case.404
Judge Wodak contended that early trial dates should be provided, as is the case in his list. However, as he noted, there are many impediments to the successful maintenance of trial dates allocated. In his view, some of these difficulties may be overcome by judicial management, but not always.405
Justice Whelan suggested that practitioners may want early trial dates but that they come at a cost to the court where there is large-scale vacation of trial dates. He stated that ‘there is no half-way house’.406 Master Kings of the Supreme Court said that the practice at the moment is to give late trial
dates ‘because so many cases settle’.407
9.5 RECOmmENDATIONS AND CONCLUSIONS
Despite the concerns raised, the commission considers that further consideration should be given to means by which trial dates could be set earlier than at present to help bring about earlier settlements and reduce delay. We are persuaded that it would be better to set trial dates at the earliest possible opportunity to ensure that there is some certainty in the proceeding for the parties and lawyers. Setting trial dates early places pressure on the parties and lawyers to prepare for trial. In doing so, parties’ and lawyers’ minds are focused on the proceeding, including on the costs of the hearing and potential adverse costs orders. This pressure can lead to parties settling before trial. Also, anecdotally, legal practitioners prepare court books close to trial. Without a set trial date, court books may not be a priority for legal practitioners, which could cause delay.
Once a trial date is set, it is obviously important that the courts should take steps to ensure that there are sufficient judicial resources available to conduct the trial on the designated date(s). It is at this point that problems arise, given the largely unpredictable factors that influence the availability of judges to hear matters on any date. No doubt the expansion of the docket system would help ensure that the trial date is not vacated if the designated docket judge fixed matters for trial on dates when he or she is available.
The commission is not in possession of reliable data on the frequency with which trial dates are vacated because of the unavailability of judges to hear the matter. However, in the course of consultations, this was said to be a matter of significant concern. The costs incurred, the delays
experienced and the inconvenience and frustration caused when parties prepare for a trial and are informed on the day of the trial that there are no judges available to hear the trial are significant. The consequence can be that the parties receive a trial date many months after the first trial date.
Setting trial dates early and ensuring judges are available on the day will ensure that proceedings move through the court process quickly. Early trial dates also place pressure on the parties to settle early, which should reduce delay. There are various means by which judicial resources may be re-deployed where cases settle on or before the date fixed for trial. The approach in the Commercial List could be considered.408
In part, earlier trial dates may be more achievable if the periods allocated for the hearing of trials were fixed and if parties were required to adhere to stricter time limits in conducting the trial. Many parties and lawyers would no doubt more readily accept such limitations on the conduct of trials if they were able to obtain earlier and more determinate (albeit shorter) trial dates. Such greater ‘certainty’ would also be advantageous to the legal profession (and witnesses).
The goal of earlier and more determinate trial dates is likely to be more achievable if a number of the other recommendations in this report are implemented. For example, the proposals in respect of pre- action protocols and ADR are likely to substantially reduce the number of disputes resulting in litigation and proceeding to trial. The proposed overriding obligations may facilitate a narrowing of the issues and a change from the combative ‘adversarial’ conduct which is characteristic of many proceedings.