The Efficient Disposal of Cases after COVID-19

The Commonwealth Magistrates' and Judges' Association - Virtual conference

"Efficient", I suspect, is a much misunderstood word, especially by Treasury or Finance Department officials but also by some in the political class, in the media and perhaps also in the judiciary.

That is because it is apt to be assimilated with but one of its measures, economic efficiency.

That great repository of the English language we share, the Oxford Dictionary, tells us that, as used adjectively, "efficient" means:

"Making, causing to be; that makes (a thing) to be what it is; chiefly in connection with cause."

Our shared "thing" is the independent exercise of judicial power according to law, without fear, favour, affection or ill-will.

As we each now contemplate the exercise of judicial power in the aftermath of this latest of the many pandemics that have periodically afflicted the human species, it behoves us, I respectfully suggest, first to reflect on that which makes judicial power to be what it is. Only if we truly understand that can we assess what, if anything, the experience of the COVID-19 pandemic offers in relation to the "efficient" disposal of cases after that pandemic has run its course.

My peerless sometime leader and adversary at the Bar, sometime Federal Court of Australia colleague and, as a judge of the High Court of Australia, present hierarchical leader, the Honourable Justice Patrick Keane AC, once pithily observed extra-judicially:

An accused person who is tried, convicted and sentenced is not being provided with a service. And when a civil court resolves a dispute between citizens or between a citizen and the State, the parties are not being rendered a service; they are being governed. And the decision which resolves their dispute is the most concrete expression of the law of the land and saves further litigation because it enables the profession to advise their clients so as to avoid litigation.²

Whatever our position in a judicial hierarchy, we exercise one aspect of the sovereign power of the nation we serve. The display of the national (or State or Provincial) coat of arms and crest in a place where we sit is not for personal aggrandisement but a reminder to each of us and those whose cases come before us of the nature of the power that falls for exercise is sovereign. Within its remit, the judicial branch governs.
This basal feature of judicial power must, I suggest, be the paramount determinative in reflecting on what the efficient disposal of cases holds for us after COVID-19. To ignore this feature by continuing, uncritically, practices the adoption of which emergency dictated during the pandemic may result in our shared "thing" of judicial power no longer being, or being perceived to be, sovereign but merely a service to which one subscribes such as Netflix, Prime, Fox Sport and the like. Indeed, some looking for one of our supposed services may come, unwittingly, to subscribe to the "Discovery Channel"!

In Australia, over the course of the last 18 months, successive, pervasive lockdowns of varying duration have been imposed by State and Territory governments for public health reasons. These have been married with international and interstate travel restrictions and related quarantine periods. Even when such draconian measures have not been in place, other public health measures such as spatial separation, "social distancing" as it is called, gathering limits, digital check-ins and the wearing of face masks have been imposed.
The impact of these on the manner of exercise of judicial power has varied not just according to the particular public health measures of the time but also according to particular features of the jurisdiction concerned.

In Australia, we have come increasingly to Balkanise the exercise of judicial power between national or "federal" courts and State and Territory courts. The analogy with the United States or Canadian justice systems is an imperfect one, as some federal jurisdiction may still be exercised by State and Territory Courts but, ever increasingly, there are jurisdictional carve outs from these courts to the national courts. Of the national courts, the Federal Court is the principal, national trial and intermediate appellate superior court. There is a separate national, specialist, matrimonial causes court, which also exercises some other federal jurisdictions in more minor cases.
For the Federal Court, the impact of the COVID-19 pandemic has been profound. The court has judges resident in each of the Australian capital cities. The court's jurisdiction is national. Reflecting this, judges do, as occasion requires, sit interstate to exercise original jurisdiction, especially in particular specialist jurisdictions such as taxation, intellectual property and native title. Even more so in relation to the intermediate appellate jurisdiction exercised by the court do judges travel interstate during appeal sitting periods and for special fixtures so as to constitute a Full Court. Reflecting the national nature of the court's jurisdiction, it is much more frequent than in State or Territory courts for counsel and often also instructing solicitors whose principal place of practice is interstate to travel for the purpose of appearing in court.

The pandemic has led to prohibition or circumscription of travel for such purposes. Further, prudence occasioned by the unpredictable occasion for the imposition of public health prohibitions and restrictions and quarantine periods has made it fraught in any event to travel interstate.

The necessary, reactive result of this has been a pervasive, sometimes near-exclusive use of audio-visual means to constitute the court and for appearances of practitioners and witnesses before the court. Sometimes, this has been via the use of dedicated video links from one courtroom to another, sometimes via computers linked via "Microsoft Teams", our preferred software platform, sometimes by a combination of these and sometimes by telephone alone.
All Australian courts have used these alternatives at some stage during the pandemic but the more local the jurisdiction exercised, the greater has been the opportunity to retain physical appearance in court houses.

During the more severe lockdowns, the conduct of jury trials in criminal cases had to be suspended. These have returned but, presently, courtrooms have had to be adapted so as to achieve prescribed spatial separation. Jury trials apart, spatial separation and related gathering limits have generally impacted upon the number of persons who can be inside a courtroom at a given time. That has limited the number of members of the general public who can attend so as to observe court proceedings.

Lockdowns have also meant that many judges, registrars, associates, personal secretaries, library and registry staff have been obliged to undertake their duties from home via remote internet links, sometimes for extended periods. Opportunities for direct collegiate contact with fellow judicial officers and informal exchanges with personal and other court staff have become commensurately infrequent during lockdowns.

There is a separate conference session especially devoted to problems with remote hearings. Both for that reason and another, I do not intend to dwell overmuch on that subject.

The other reason is that we all know that a hearing, be that in the exercise of original or appellate jurisdiction, is but one manifestation, an obviously important one, of the disposal of cases in the exercise of judicial power. There are a myriad of pre-hearing and also post-hearing procedures entailed in the disposal of a case. Indeed, many a case is disposed of without ever proceeding to a hearing or with only a truncated hearing; in the criminal jurisdiction for example, via a sentence hearing rather than a trial; in the civil jurisdiction via compromise after some pointed exchanges about prospects at a first case management hearing, perhaps coupled with an early referral to mediation.

I do wish to share with you two experiences of a remote hearing.

One occurred last year during the height of lockdown periods in several States in case managing an application for prerogative, or what we have come latterly to call in Australia, "constitutional" writs in respect of an exercise of judicial power by an inferior tribunal. A senior officer of the Executive, represented by senior counsel, was the respondent party. The hearing was conducted via the internet using Microsoft Teams. As the audio-visual link opened, fortuitously at the appointed time, there was the Silk, appearing from his chambers. In itself, that was routine enough in those times. What was not routine, even for a case management hearing, was the sight of counsel wearing, as he was obviously want to do in his chambers, his favourite cardigan! That casual attire was not deliberate, as his all too evident, genuine embarrassment demonstrated when I announced I would adjourn briefly so he could attire himself correctly.

The other experience occurred just last month in relation to an exercise of appellate jurisdiction by a Full Court. In pre-COVID-19 times, that jurisdiction would have been exercised in person in the State where the case had arisen. However, travel to that State was subject to the most severe restriction on public health grounds. The Full Court was constituted virtually by me, resident in Brisbane, another judge resident in Sydney and another resident in Melbourne. Each of them had to participate from home, given the lockdowns then in place in those locations. The day prior to the hearing date, I was rather nonplussed when my Associate relayed to me as presiding judge for answering a question from the appellant's counsel as to what was expected to be worn under robes? Lockdowns had also dictated that counsel appear remotely. He was then based in what was at any time of the year, apt to be a very hot part of Australia. Briefly and unworthily, the one word answer, "Something" occurred. That was followed in short order by the recollection that newsreaders under hot studio lights had once adopted the practice of suitcoat, shirt and tie and football shorts, the latter not visible under the desk to the viewing public! Regaining composure, I requested my Associate to convey that the tropical rig adopted in pre-air-conditioned days in Far North Queensland and to this day in Papua New Guinea of barrister's robe over long-sleeved white shirt, bands and dark trousers would suffice.

These anecdotes have their humorous side but they also convey a more serious truth, related to the nature of judicial power. It is not a casual affair. Yet remoteness is conducive to casualization in ways in which physical attendance is not.

Recognition of this is a deliberate design feature of courthouses.³ The robes worn by judges and counsel reinforce this, as does the court officer's cry, "Silence. All rise. The [named] court is now in session" (or words to this effect). All of this emphasises that sovereign power falls to be exercised.

Make no mistake, there will be calls in the aftermath of the current pandemic and under the guise of the "efficient" disposal of cases and reducing the cost of justice, both from within the executive branch and even also from within the practising profession, especially from those within the solicitor's branch who have come to believe that the practice of a learned profession is measured in six minute units, that there is no need or a reduced need physically to attend court any longer. It will be said that the experience of the pandemic has proven that. Courthouses, expensive to build and maintain, are redundant. Lawyers need no longer spend time in traveling from chambers or office. Parties and other witnesses can appear remotely. We need to move with the times!

At best and benignly, this, I suggest, is a call for economic efficiency, not for the efficient disposal of cases.

The judicial branch is not populated by Luddites. Even prior to the pandemic, it was increasingly recognised, and as resources permitted adopted, that there were aspects of the efficient disposal of cases that were enhanced by the adoption of modern technologies.⁴ During my judicial lifetime, I have seen not just the Federal Court of Australia but also, truly impressively, the Supreme Court of Papua New Guinea and now, increasingly, the National Court of Papua New Guinea adopt electronic court files.

For some 30 years, the High Court of Australia has offered the alternative of appearances in applications for special leave to appeal by video-link. It has long been routine in pre-trial case management in the Federal Court of Australia for interstate practitioners to appear by video-link. It is likewise hardly unusual to grant applications for particular witnesses based remotely in Australia or abroad to give evidence via video-link. There are challenges in relation to the prepositioning of documents and sometimes as to whether, truly, the witness is quarantined from prompting but nothing which ever has been incapable of resolution on a case specific basis.

All of this has already enhanced economic efficiency in the exercise of judicial power without compromising the efficient disposal of cases.

I am quite sure that the experience of the pandemic will translate into the use of other audio-visual links, some remote from court houses, on a case specific basis and as alternatives for such interactions with the exercise of judicial power, most likely for case management purposes.

Some, supposedly economically efficient aspects of the exercise of judicial power, in my view, already at least had a tendency to compromise the efficient exercise of judicial power. Increasingly in recent years, the Federal Court's appellate lists are populated by cases brought by failed asylum seekers. Many appear on their own behalf with little understanding of English, let alone of substantive and procedural law. In the original jurisdiction, as a result of legislative change, we are increasingly encountering judicial review cases concerning the deportation of non-citizen offenders, some of whom have lived in Australia for many decades. By the time litigation has been instituted, most of the latter class are in immigration detention.

There is a serious access to justice issue entailed with any adoption of internet based technology for appearances by litigants in person and also as between well-resourced larger law firms or chambers and smaller firms and sole practitioners.⁵ It is all too easy to assume that there is ready and general access to computers and reliable internet connections. This is just not so even in generally prosperous Australia, let alone in a developing nation such as Papua New Guinea. Access to and reliability of the internet has greatly improved over the decade I have served in PNG but that access, even access to a computer at all is far from pervasive.

Further and fundamentally, in certain public law cases there can be an inherent tension between the institution of a judicial proceeding challenging the legality of a decision grounding executive detention and the retention of the challenger by the executive during the course of a hearing in respect of that challenge. Production of a detainee before a judicial officer in a court house emphasises both to the detainee and to the executive that an independent aspect of sovereign power, judicial power falls to be exercised. Even more so is this true in relation to the production of a prisoner for a criminal trial. Control of the detainee or prisoner is, for the purposes of the exercise of judicial power, passed from the executive to the judicial branch of government.

Even before the pandemic, there were pressures on the judicial branch to yield such control. Economic efficiency and sometimes security issues grounded such pressures. In relation to pre-trial case management including bail proceedings, video link and computer based internet link can serve such grounds without compromising the efficient disposal of cases. But they are not perfect substitutes. A complaint to a judicial officer about conditions of detention or access to lawyers is diminished in its impact or even likelihood, I suggest, if made from the facility where the basis for the complaint, real or imagined, has arisen. The same features can attend a judicial command to remove restraints for the purposes of a hearing, I suggest.

In jurisdictions large and small, judges and magistrates are either out-posted or proceed on circuit, the Assizes of old. Why is this done? It is not just because it enhances access to justice; it is also because justice is best delivered, and just as importantly seen to be delivered not just in public but locally and by physical attendance. In relation to any exercise of sovereign power, there is a qualitative difference between physical and online attendance. The same is true in relation to the observation of cases by the public.

In relation to sovereign power, that is not confined to its judicial aspect. I have taken oaths of office before Vice Regal officers at Government Houses both in Canberra and in Port Moresby. Last year, in respect of my current term of appointment in PNG, the exigencies of the pandemic dictated that this be performed via an internet link to Port Moresby. It was an honour again to take the judicial oath for PNG but the experience was qualitatively different to an attendance in person.

In my home State, Queensland, the most decentralised in Australia, recognition of this desirable, local aspect of the exercise of judicial power has long seen not just magistrates but also judges out-posted to major regional centres. Even more so is this feature recognised and necessary in Papua New Guinea, where rugged terrain greatly impacts on ready regional travel other than by air.

Not just in theory but also in practice with the march of technology remote court hearings for many cases great and small were possible even before the pandemic. But as this conference and our experience of it illustrates, the sense and society of a remote hearing is qualitatively different to physical attendance.

We humans are social animals. An exercise of judicial power, civil or criminal, original or appellate, is a very particular form of socialisation. No-one who has experience of appearance in court in practice or in the exercise of judicial power in open court needs any reminding of the force which direct judicial involvement brings to a proceeding. Nor of the tempering quality in terms of judicial behaviour of that power being exercised in public. Many a civil case never proceeds beyond a first case management hearing and many an offender never re-offends because of the experience of the force of judicial power. Commensurate savings in public finds and private angst are the result. Experienced judicial officers know this. Treasury officials, I suggest, do not.

In modern times, various forms of alternative dispute resolution, mediation especially, have become a feature of the disposal of civil cases. Once again, it needed no pandemic to instruct that in theory and via increasing access to technology in practice mediation could be conducted remotely. Once again, however, the dynamics of a mediation are very different if remote means are adopted rather than physical attendance. The reasons also lie in our in-built disposition to society. A pressure cooker atmosphere is hardly enhanced if a real-life pressure cooker is hissing in the background of a remote attendance!

Each of us also knows from experience the benefit in cases great and small in original and appellate jurisdiction of Socratic dialogue between bench and Bar. Attention can quickly be focussed on the real issues for decision. My experience is that the opportunity for this is invariably diminished, even by the most reliable of internet connections. Non-verbal communication signals are muted; interruption is apt to be difficult. Even more this is so where pandemic necessity and the fallibility or unavailability of the internet has dictated the use of the telephone only. With the latter, I have found that an adaptation of long ago learned military radio procedure – OVER – is the only way efficiently to exercise judicial power. It stops mutually stressful, unintended interruptions, as it does on a military radio net.

In the Federal Court, next year, I expect we shall resume generally the discharge of judicial power via in person hearings for trials and appeals. In Papua New Guinea, that is already occurring in the exercise of original and appellate jurisdiction both at Port Moresby and in provincial centres and will increasingly occur in the forthcoming year.

Over the last 18 months as an emergency measure during lockdowns, the PNG Supreme Court adopted as an alternative when requested by the parties the hearing on the papers of appeals. This method is adequate in an emergency but is not truly efficient. A question which occurs on looking at a written submission and which might be answered instantly by Socratic dialogue must either not be answered or, because of the dictates of natural justice, be posed and answered in writing with attendant delays in the disposal of the appeal.

We should not diminish the value of direct collegiate contact. In court, in the exercise of appellate jurisdiction, this is well-nigh impossible during the hearing of an appeal. Try monitoring a chat line in conjunction with counsel appearing remotely while navigating the PDF appeal book – possible, yes, just, desirable not at all. That is quite apart from the benefit of an informal chat with a colleague over lunch or before or after court, possible via "Teams", desirable not at all.

I wish to conclude by sharing this thought about the pandemic and the efficient disposal of cases after the pandemic.

None of my Federal Court colleagues or court staff has died as a result of COVID-19. Not so in relation to Papua New Guinea. Two of my PNG-resident judicial colleagues died from that cause earlier this year, one a good friend and contemporary, the other younger but each with a wealth of experience from high level legal practice. There have been deaths due to COVID-19 in the ranks of court officers and administrators and their families in PNG. Thankfully, reports of such occurrences are diminishing, perhaps because the pandemic is running its natural course. Of course none of us is indispensable and each of us must eventually retire. There is a usual turnover in any judiciary. But the premature loss of experienced judges to a bench which is already challenged in numbers to meet the demands of an increasing and increasingly sophisticated population disrupts that usual turnover and has a magnified impact. Those of us in the judiciaries of developed countries need to be sensitive to this occurrence and ready in lending support as requested to our developing country colleagues to assist them in doing our shared "thing". That is a good way of enhancing the efficient disposal of cases.

(C) J. A. Logan, 2021. Moral right of author asserted. Non-exclusive publication licence granted to the Commonwealth Magistrates' and Judges' Association.

¹ The Honourable Justice John Logan RFD, judge of the Federal Court of Australia and of the Supreme and National Courts of Justice of Papua New Guinea.

² The Honourable Justice P A Keane AC, The Idea of the Professional Judge – The Challenges of Communication, Speech to the Judicial Conference of Australia Colloquium, Noosa, 11 October 2014: https://www.hcourt.gov.au/publications/speeches/current/speeches-by-justice-keane Accessed, 9 September 2021

³ See The Hon Justice Melissa Perry, --- "2019 SCCI Architecture Hub, "The architecture of justice" - Introductory remarks" (FCA) [2019] FedJSchol 12.

⁴ See, in relation to the Federal Court of Australia, The Hon Chief Justice J L B Allsop AO, "Technology and the future of the courts", TC Beirne School of Law, University of Queensland Special Lecture Series on Technology and the Future of the Legal Profession, 26 March 2019: (FCA) [2019] FedJSchol 4.

⁵ For a critique of the access to justice issues related to proposed introduction of "online courts" in the United Kingdom, see, recently, Catrina Denvir and Amanda Darshini Selvarajah, Safeguarding access to justice in the age of the online court, Modern Law Review, early view, published online 24 August 2021: https://onlinelibrary.wiley.com/doi/10.1111/1468-2230.12670