Address by the Honourable JJ Spigelman,
Chief Justice of NSW
Opening of the Law Term Dinner
Parliament House, Sydney
31 January 2000

I grew up in a country in which the Prime Minister was able to travel to England for six weeks by boat with the Australian Cricket team, stay for a month or so watching cricket and then return by boat, taking another six weeks to do so. Things have speeded up since then. Not all of the change has been an improvement.

Sir Robert Menzies would never have approved of one day cricket: a game with special rules designed to speed things up, including penalising a team for a slow over rate.

Most other changes in sports have been in the same direction. Tie breakers in tennis. Olympic sports like luge, cycling and canoeing are now measured in milli-seconds.

Of course, there have been many improvements associated with increased speed. Indeed, if there were a competition to build a statue for the one person who has most improved the Australian standard of living in the twentieth century, I would nominate the Chief Engineer on the Boeing 747 Project.

Nevertheless, as a nation we have substituted the tyranny of distance, with a tyranny of immediacy, which, at least, we share with everyone else.

The process of acceleration is unremitting. In the United States, it took 46 years for 25% of the population to be connected to electricity. It took 35 years for that proportion to get the telephone, 16 years for that proportion to take up personal computers and 7 years for that proportion to be connected to the world-wide web.

Anyone using contemporary telecommunications or computer technology has experienced a curious phenomenon: the sense that a particular delay in some processing function was quite intolerable, even though that length of delay was perfectly acceptable only six months or one year before.

Where we once spoke of words per minute, we now speak of characters per second. One can buy telephone answering machines with a quick replay button - in a digital format, so that the replay is accelerated without the high pitch of a Disneyfied chipmunk. Similarly, one can buy music CD players with an option that lets the user close the one or two second gap between tracks. \

Time is more important than ever. In Tokyo one restaurant charges by time: at the rate of 35 Yen per minute. You clock in, you clock out and your bill is computed on the time difference. Indeed, it is necessary for us to create the illusion that we are saving time, even when we cannot do so. On many elevators, the “door close” button is in fact a placebo. It has no function, other than to placate those who measure their life in seconds.

Perhaps we need more time because there is more to absorb. On one recent calculation, a search on the subject “Information Overload” on the world wide web, hits twenty thousand different sites Gleick “Faster: The Acceleration of Just About Everything” 1999 p88.. Information overload indeed.

Two things, however, have not speeded up during the period since Sir Robert Menzies travelled to England with the First XI. One is city traffic. The other is litigation.

In this regard, traffic and litigation share another characteristic. There are significant limits as to the desirable speed with which either should be conducted. Some things take time. Justice is one of them.

In the course of my address to this dinner last year, I indicated my commitment to the maintenance of the quality of justice. Speed is like light: if you have too much, it will obscure not illuminate. There is a limit to the extent to which litigation can be hastened. We are not yet close to that limit.

Delay is not only a quantitative factor. It is also of significance in terms of the quality of justice. Most significantly, delay in the litigation process does add to the costs which that process imposes on litigants. Parkinson’s law operates: work expands to fill the time set aside for it.

Perhaps the greatest challenge facing all of us involved in the litigation process is the restoration of a rational relationship between the cost of litigation and the subject matter in dispute.

Psychologists tell us that a normal fast talker speaks at up to 150 words a minute. Listeners, however, can process speech reaching the ear at 500 or 600 words a minute. Any judge will tell you that one of the technical facilities he would most like to have is a fast forward button for advocates - in digital form for the reason I have already mentioned. This would enable an oral hearing to take only one-third or one-quarter of the time that it now takes.

Of course, any such process of acceleration would prevent a judge thinking about what was being said to him. This would stop a judge formulating and putting questions to the advocate about the submissions being made. Any advocate would tell you that the absence of questions from the bench would speed things up even more. Accordingly the technical innovation many advocates would want is a stop, or at least a pause, button directed at the judge.

While we wait for these inventions we will have to do the best we can.

It is incumbent upon all of us as participants in the administration of justice, to ensure that litigation is conducted as efficiently and expeditiously as possible. For centuries, indeed it was only abolished in the late eighteen century, the common law had a mechanism known as peine forte et dure, a form of torture inflicted upon a prisoner indicted for felony who refused to plead and submit to the jurisdiction of the court. Heavy weights were applied to his body until he consented to be tried by either pleading “guilty”” or “not guilty”, or until he died. This was an early form of case management. It remains a model for some contemporary practices.

The extension and elaboration of case management has been a feature of judicial administration over a period of two decades. The courts are not immune from the change in public expectations with regard to accountability for public funds that has affected the entire gamut of governmental institutions. Nor are they immune from the restrictions on availability of resources to which all areas of government are subject. Furthermore, the courts, like all areas of the government over recent decades, have been subject to assessment in terms of the extent to which performance of their functions impose avoidable costs, relevantly on litigants and third parties.

The last two decades have witnessed very substantial changes in many areas of public administration, with a view to improving the efficiency of their operation. Almost invariably such changes have involved alteration of long existing practices. The emergence of case management in place of the traditional hands-off approach to the conduct of litigation, has been the judicial response to these new expectations.

The time has now arrived for the Supreme Court to further develop its case management by accepting responsibility for the progress of cases before the Court. In this State, the acceptance of this responsibility has been pioneered by the District Court and I acknowledge the significant role that Justice Blanch, the Chief Judge of that Court, has played in this regard.

Of course, the caseload and the functions of the Supreme Court differ in significant respects from those in the District Court. Accordingly, practices adopted in one court for the conduct of proceedings efficiently and expeditiously, yet in compliance with the dictates of justice, will not be appropriate in the other. Nevertheless, the acceptance of responsibility by the adoption of a comprehensive system of case management from the commencement of proceedings to their disposition, is the same in both courts.

The judges of the Supreme Court have decided to adopt time standards for the conduct of proceedings within the Court. This decision necessarily involves an acceptance of responsibility for the progress of such proceedings from their commencement to their disposal.

Over the course of last year, the Court has engaged in a number of reviews of practice and procedure, particularly with respect to civil justice. These have included a dialogue between myself and representatives of the Law Society and of the Bar Association, as anticipated in my speech on being sworn in as Chief Justice, when I emphasised the central importance of the performance by practitioners of duties to the Court.

The Bar Association, with my active encouragement during this dialogue, has recently incorporated a number of these duties to the Court in its professional ethical rules. These rules now emphasise the importance of

• Confining a case to issues genuinely in dispute.

• Refraining from making allegations of fact without a proper basis.

• Complying with orders, directions, rules and practices of the Court.

• Preparing a case for hearing as soon as practicable.

• Presenting issues clearly and succinctly.

• Being as brief as reasonably necessary.

• The Court has adopted a new statement of overriding purpose, inserted at the commencement of the Supreme Court Rules: that the objective of the Rules is to facilitate the just, quick and cheap resolution of the real issues in civil proceedings.
• The Court has adopted specific time targets for the disposal of cases, together with a plan for the progressive reduction of delays.
• The Rules will impose on all parties an obligation to refrain from making allegations, or maintaining issues, unless it is reasonable to do so. A new summary procedure is created for the payment of costs on an indemnity basis by parties who breach this obligation.
• The Rules will now identify a range of specific directions which the Court may make in the course of managing cases, including the imposition of time limits on the evidence of witnesses, or on submissions, or on the whole, or part, of a case.
• The Rules will now empower the Court to direct a legal practitioner to give a party a memorandum providing an estimate of the length of the trial of the costs and disbursements of that practitioner and of the estimated costs that would be payable by the party to another party, if the party were unsuccessful.
• The Rules will now empower the Court to specify the maximum costs that may be recovered by one party from another, to avoid the injustices that can occur when one party has “deep pockets”.
• The Rules will empower the Court to order that costs be payable forthwith, in any case in which a party has been subject to unreasonable delay or default, or the proceedings are unreasonably protracted, or justice otherwise demands such an order.
• The Rules will expressly empower the Court to order a person to pay the costs occasioned by the failure of that person to comply with a direction of the Court.
• There are amendments to the existing Rules which identify circumstances in which a legal practitioner can be ordered to pay costs. By means of a Practice Note, a new procedure for the making of such orders is established. Breach of duties to the Court - duties now reflected in the Bar Rules themselves - may lead to a practitioner being ordered to pay costs occasioned by the breach.
• The Rules promulgate a Code of Conduct for expert witnesses. The Code establishes that an expert witness has an overriding duty to assist the Court impartially. It specifies that an expert witness’s paramount duty is to the Court. He or she is not as an advocate for a party to the proceedings.
• The new Code establishes a system by which experts make full disclosure of relevant matters in their reports and, upon direction by the Court, confer with other expert witnesses in an endeavour to reach agreement on material matters. An expert is obliged to state any qualification without which, in his or her opinion, a report may be incomplete or inaccurate. Furthermore, where the expert has insufficient data or research to state a concluded opinion, he or she must say so.

• An obligation on the Court to give effect to the overriding purpose when it exercises any of its powers.
• An obligation on a party to civil proceedings to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.
• An obligation on legal practitioners to refrain from engaging in conduct which causes his or her client to be put in breach of this duty.
• A power in the Court, when exercising the Court’s discretion to award costs, to take into account any failure to comply with these duties by a party or a legal practitioner.