Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 01/2002 by Rachel Callinan
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- This paper examines the issue of delays in relation to the
Local, District and Supreme Courts of NSW. Delay has been a long-standing
concern to the courts and successive NSW Governments. The operation of an
efficient and effective court system is crucial to the administration of
justice and delays are a significant obstacle to achieving these goals.
Innumerable legislative and administrative initiatives have been undertaken
over the years, and while many have been successful in their specific aims,
court delay is an ongoing problem, not least of all because the causes of delay
are not static.
- Generally, 'delay' refers to the amount of time between the
commencement and the conclusion of court proceedings which exceeds the time
necessarily spent in the preparation of a case for trial, the conduct of its
hearing and the determination of its final outcome. Delays create many
problems, having both a personal and financial impact on parties, as well as
financial and other effects on the court system.
- The courts are the main source of information about delays.
They keep a variety of statistics and publish information about delays in their
annual reviews. Other bodies also report on court delays. Delays are generally
measured by establishing the time taken for cases to progress through the court
system, usually expressed as the 'median delay' between two points in
proceedings. Other measurements or statistics fill out the 'picture' of delays
such as new cases and dispositions, pending caseload and compliance with time
standards. Reading statistics and other information about delays must be done
with care.
- The Local Court is the court of general access in NSW, with
jurisdiction to deal with many different matters. It sits in 158 locations
across NSW. While delays vary from location to location, there was an overall
increase in delays in the Local Court in 2000. The District Court is
the intermediate court in NSW, handling most of the serious criminal cases that
come before the courts and civil cases where the amount being claimed is up to
$750,000. Generally, the District Court has been successful in reducing delays
in the criminal jurisdiction in the last few years and has contained the level
of delays in its civil jurisdiction. The Supreme Court is the highest court in
NSW. It has unlimited civil jurisdiction and handles the most serious criminal
matters and appeals. Generally, the Supreme Court has been successful in
reducing delays in the past few years. In the 1999/2000 financial year the
median waiting times for criminal trials in the Supreme Court have been reduced
and improvements have also been reported in relation to the Court's civil list.
- There are multiple causes of delay. In relation to a particular
court or aspect of a court's jurisdiction, one or more causes may be more or
less significant. The courts have varying degrees of control over these
factors. Causes include: an increased caseload; increased length of hearings;
insufficient court resources; problems with the management of court resources
and caseload; inefficient legal procedures and court processes; party delays;
and others.
- There is no legal right, under common law or legislation, to
have court proceedings conducted within a reasonable amount of time, in any
Australian jurisdiction. Regardless of this, all stakeholders in the court
system have long recognised the problems caused by delays and the importance of
reducing delay. Dealing with court delay raises issues of performance,
accountability and judicial independence.
- The issue of delays in the NSW court system has been a concern
for many years. Several reviews and inquiry's have been undertaken over the
years to identify the causes of delays and the develop measure to reduce
delays.
- Because of the number and diversity of the causes of delay,
addressing the problem of court delay is not straightforward. Measures include:
increased, and efficient use of, court resources; court management initiatives
which have a flow on effect on delays; case management; simplification of legal
procedures; the recent Local Court reform Acts; and others. Some measures such
as the court management initiatives are broad in scope and ongoing, while
others are designed to fix specific problems causing delays and once
implemented are complete.
- Delay is a problem endemic to all legal systems. While great
improvements have been made over the last decade in reducing delays and
addressing the causes of delay, delays are an ongoing problem. The measures
implemented to deal with delays to date, and the recent focus on improving
court management would seem to provide the infrastructure for dealing with
delays in the future.
