Justice may be blind, but it should not be allowed to take three years to find its glasses, writes STEVEN FENNELL, prompted by the story of the feud between NSW Chief Justice Bell who is irked by Federal Court Justice Jackman’s criticism of judges taking too long to deliver verdicts.
There is something rather peculiar about an institution that quite properly expects everyone else to obey deadlines becoming remarkably philosophical about its own. A litigant can be ordered to file submissions by 4.00 pm Friday; miss the deadline and there may be consequences. A lawyer can be told that an affidavit is late. A witness who fails to appear may attract a warrant. A defendant can be told that the machinery of justice must proceed according to a timetable. But when a judgment is reserved, the timetable can sometimes become rather more elastic.
From the perspective of the ordinary litigant, a judicial delay of two or three years does not necessarily look like judicial solemnity, intellectual reflection or institutional dignity; it can look arrogant. Worse, it can look completely detached from the real world. That may not be what the judge intends, but it is nevertheless how the conduct can reasonably appear to the person whose life, liberty, business, finances or reputation is sitting in the judicial waiting room.
And that is the point that perhaps gets lost when the debate becomes one about judicial collegiality and institutional reputation. The litigant is not sitting in the judges’ common room. The litigant is waiting. Six months is a long time when it is your life.
For a judge, six months may be an interval in a long judicial career, but for a litigant, six months can be an eternity. A business can fail, a relationship can collapse, a child can grow from infancy to school age, a person can lose employment, property can be sold, debt can accumulate, evidence can become harder to find, and witnesses can disappear or die. In criminal proceedings, the consequences can be considerably more immediate.
The ancient expression that justice delayed is justice denied survives because it describes something rather more substantial than impatience. Justice is not merely the eventual production of a beautifully reasoned document; justice includes the timely determination of the dispute.
There is a particularly Australian absurdity in telling ordinary citizens that the courts are there to resolve their disputes while simultaneously suggesting that they should be patient if resolution takes several years. Most Australians understand that complicated things take time, but they also understand the difference between complicated and forgotten.
This is not merely a Federal Court argument
The recent controversy surrounding Justice Ian Jackman’s criticism of lengthy reserved judgments has provided the public with an unusually candid view of a problem that is hardly confined to one judge, one court or one disagreement.
The examples reported in connection with Justice Jackman’s speech are difficult to dismiss as trivial delays. They include Masters v Lombe, where judgment was delivered more than three years after a four-day trial; ToolGen Incorporated v Fisher, where judgment was reportedly delivered approximately two years and nine months after an eight-day trial; and Ezy-Fit Engineering Group Pty Ltd v Microm Nominees Pty Ltd, where the reported delay was approximately two years and four months after a ten-day hearing. Other examples include ASIC v Nuix Ltd and matters involving Justice Bernard Murphy. And then there is Gall v Domino’s Pizza Enterprises Ltd, in which judgment remained reserved for approximately three and a half years according to the recent reporting.
The figures are striking precisely because the public is accustomed to being told that the courts are sophisticated institutions staffed by highly capable people. If so, the question is not unreasonable: At what point does a delay become a failure of administration rather than an inevitable feature of judging?
That question does not require an attack on judicial independence. It requires an answer.
Queensland has had its own salutary lesson
The problem is not confined to Canberra or Sydney. In Queensland, the case involving Federal Circuit Court Judge Michael Jarrett provides a particularly uncomfortable example.
A sexual-harassment proceeding was heard in 2012, but judgment was not delivered until 2018—approximately six years later. The Full Court of the Federal Court subsequently described the delay in exceptionally critical terms, referring to it as “deplorable” and “extraordinary”.
Six years. That is not a delay that can be experienced as an abstraction by the person who brought the case. The woman involved described the wait as agonising. By the time the judgment arrived, the litigation had occupied a substantial portion of her life.
One can imagine telling a litigant: “Your matter is presently reserved.” And then, several birthdays later: “Good news. We have found it.” There is a joke there, but it is not really a funny one.
Reserved Judgements Litigants Waiting Room
The public does not expect judges to be machines.
There is an important distinction to make. Nobody seriously suggests that judges should produce hurried judgments simply to satisfy a stopwatch. Some cases are extraordinarily complex, some involve enormous bodies of evidence, some require difficult questions of law to be resolved, and some judgments are inevitably going to take longer than others. Nor should a judge be encouraged to sacrifice accuracy for speed.
But that does not mean that time should have no upper limit. A six-month expectation does not say that every judgment must be handed down on day 180 at 4.00 pm. It says something much simpler: six months should be the ordinary expectation.
If a case is exceptionally difficult or evidence-heavy, twelve months may be reasonable. If it takes longer than twelve months, the question should no longer be “Why is the litigant complaining?” The question should be: “Why has this taken so long?”
That is not an attack on judicial independence. It is administration.
A modest proposal: six months, twelve months, and an explanation. Perhaps the debate would benefit from getting away from personalities and towards a practical rule. Consider a system under which:
- Six months is the ordinary target for delivery of a reserved judgment.
- Twelve months is the upper ordinary limit for genuinely exceptional matters—such as unusually complex cases, exceptionally large evidentiary records or matters involving particularly difficult legal questions.
- At six months, if judgment has not been delivered, the matter should be recorded as outstanding.
- At twelve months, the court should record the reason for the continuing delay and notify the relevant head of jurisdiction.
- Beyond twelve months, the matter should automatically become the subject of administrative review.
None of that requires another judge to tell the original judge what conclusion to reach. Nobody needs to mark the judgment with a red pen and write, “Must try harder.” The review would concern the administration of the delay, not the merits of the decision.
That distinction matters. Judicial independence protects judges from improper interference with their decision-making, but it should not create an administrative black hole into which a judgment can disappear for years.
And perhaps the statistics should be public. There is an even simpler reform. Courts could publish statistics showing the number of reserved judgments outstanding at three months, six months, twelve months, eighteen months, and twenty-four months or more. No names would necessarily be required.
The public would simply be able to see whether the system is delivering judgments within a reasonable period. It would also provide an objective answer to the inevitable argument that these are isolated examples. If they are isolated examples, the statistics will demonstrate it; if they are not, the statistics will demonstrate that too.
Numbers have one useful characteristic in these debates: they tend to be rather less sensitive to collegiality.
The deadline principle should work both ways. There is another point worth considering. The courts quite properly insist upon procedural discipline. Parties must comply with directions, lawyers must meet deadlines, evidence must be filed, submissions must be made, and applications must be brought within prescribed periods. All of this exists because delay causes prejudice and because a justice system cannot operate effectively without discipline.
But the principle does not magically become less important when the person holding the pen is a judge. Indeed, one might reasonably expect the institution administering justice to set the example.
The public might therefore be forgiven for wondering whether the courts could apply some of their own case-management philosophy to themselves. After all, if a litigant says, “I needed another two years to prepare my case,” the answer is unlikely to be, “No worries, take your time.” Perhaps the answer should occasionally travel in the other direction.
What about judicial independence? This is where the argument can become unnecessarily overheated. Judicial independence is indispensable, but independence does not mean immunity from criticism, nor should accountability be confused with interference.
A judge must be free to decide a case according to law without fearing that a government minister, newspaper editor, political party or angry litigant will punish the judge for the result. That is entirely different from asking whether a judgment should take six months, twelve months or three years to arrive.
Indeed, public confidence may be better served by acknowledging the distinction. The public does not need judges to pretend that the system is perfect; the public needs judges—and the institutions responsible for administering courts—to demonstrate that when something goes wrong, it is recognised and addressed.
There is nothing particularly revolutionary about that. It is how most other institutions are expected to operate.
Perhaps the real problem is the word “reserved”. “Reserved” is an extraordinarily accommodating word. It can mean the judge needs time to consider the matter, it can mean the judgment is being written, it can mean the judgment is being revised, it can mean the matter is complicated, and, apparently, it can mean that everyone should go home and wait.
Perhaps after twelve months the word should be replaced with something a little more informative: “Judgment outstanding—explanation required.” It would certainly remove some of the mystery.
The litigant is entitled to be more than a footnote. The judicial system understandably thinks about judges. It thinks about precedent, doctrine, institutional integrity, independence and reputation—as it should. But somewhere in that conversation there must remain a very simple proposition: courts exist for the public. The litigant is not an inconvenience that occurs between the important parts of the judicial system; the litigant is the reason the system exists.
That is why the public reaction to multi-year delays is unlikely to be solved by telling people that they should have greater respect for judicial process. Respect is earned by the process itself. A judge who takes time to consider a difficult case carefully deserves that respect, but a system that allows a straightforward judgment to languish for years without explanation invites a rather different response.
And that is why Justice Jackman’s intervention has struck such a nerve. Whatever one thinks of the manner in which the criticism was delivered, the underlying question is difficult to avoid: If justice is a public service, who is responsible for making sure that the service is actually delivered?
Perhaps the answer need not involve public naming, judicial feuds or institutional embarrassment. Perhaps it could begin with something considerably less dramatic: six months, twelve months for the genuinely exceptional, and, after that, an explanation.
That hardly seems an unreasonable demand to make of a system that routinely tells everybody else: Your deadline is your deadline. The public might reasonably expect the same courtesy from the people who administer justice.
And if that proposition causes a little judicial discomfort, perhaps that is not necessarily a bad thing. After all, justice is supposed to be uncomfortable for those who deserve to lose—there seems little reason why punctuality should be one of them.