Court Delays in NSW: Issues and Developments
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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
- 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.