CLRC No 14

The Community Law Reform Committee

of the Australian

Capital Territory

Report No 14

Appellate Structure of the ACT Supreme Court

Committee Reference: CLRC No 14

The ACT established the Community Law Reform Committee in July 1990.

The purpose of the Committee is to:
. help the Government to identify areas in need of reform;

. anticipate emerging social and legal issues; and

. assess the practical impact of various proposals and laws on the people of the ACT.

The Committee's Secretariat is at 2nd floor, GIO Building, City Walk, Canberra City, ACT 2601 (Tel (02) 62070546 fax (02) 62070538).

Copyright in this publication is waived. It may be copied freely without the need for permission being sought. However, acknowledgment of the source should be made.

Community Law Reform Committee of the

Australian Capital Territory

To the Honourable Gary Humphries, MLA,

Attorney-General for the Australian Capital Territory

REPORT ON

Appellate Structure of the ACT Supreme Court

Dear Attorney-General

This report examines the appellate structure of the ACT Supreme Court.

While in part related to the Committee's reference on Rules of the Court, the Committee has issued this report under the functions of the Committee as expressed in its Constitution.

K. J. Crispin QC

Community Law Reform Committee

Appellate Structure of the ACT Supreme Court

1 At present, appeals from the Supreme Court are heard by the Federal Court of Australia and are governed by the Federal Court of Australia Act 1976. This means that appeals are effectively taken out of the hands of the Territory. This system involves several obvious disadvantages:

(a) The Territory government cannot maintain effective legislative control over the appeal process. This means that any perceived problem concerning appeals from the Supreme Court can only be remedied by persuading the Commonwealth Parliament to pass amending legislation. This is cumbersome and time consuming. Furthermore, it does not reflect the status of the Territory government as a separate body politic responsible to its own electors.

(b) The Territory government cannot maintain effective control over the selection of judges who hear and determine appeals. Where Federal Court judges assist as additional judges of the Supreme Court they do so after being offered commissions by the Territory government and being allocated cases by the Chief Justice of that Court. On the other hand, judges who sit on the Full Court do so without any appointment by the Territory government and are allocated appeals by the Chief Justice of the Federal Court.

(c) The Federal Court generally has a different focus from the Supreme Court. Consequently judges are frequently called upon to decide appeals on issues with which they have little familiarity. This is particularly troubling in criminal matters where judges may be forced to grapple not only with unfamiliar principles but with issues relating to the exercise of discretions to ensure fairness in trials before juries and sentencing 'tariffs' both of which depend largely upon judicial experience. Furthermore, if one ignores cross-vesting legislation, the Federal Court generally has no nisi prius jurisdiction in personal injury cases. These cases constitute the bulk of the civil appeals and again involve issues of judgment, such as the assessment of general damages for pain and suffering, which are dependent upon experience. Whilst it may seem inappropriate to cite examples in a paper of this nature, there is an abundance of anecdotal evidence to suggest that problems of this kind have caused not only excessive cost and delay but more serious injustice.

(d) Furthermore, there is a perception that this lack of familiarity can lead to a situation in which one resident judge exercises disproportionate influence over his less experienced colleagues and, in substance, there is little more than an appeal from one resident judge to another. Some counsel believe that the prospects of succeeding on appeal are enhanced by this situation in which judicial rivalry may favour appellants. This belief, coupled with the unpredictability inherent in the system, encourages appeals of dubious merit.

(e) A further anomaly lies in the availability of appeals at least in disciplinary matters from decisions of the Full Supreme Court to a Full Federal Court. No analogous procedure exists anywhere else in Australia.

2. Whilst these problems have been generally acknowledged within the profession for several years, there has been a perception that the cost of establishing an appellate division of the Supreme Court would be prohibitive. In 1990 Lindsay Curtis AM suggested that to sustain a Full Court within the Supreme Court would require the availability of at least five and perhaps six judges. However, as Mr Curtis pointed out, that did not mean that one would need to enlarge the pool of resident judges to five or six since some or all of the existing visiting judges could be called upon to sit on appeals in the Appellate Division of the Supreme Court. There is no obvious reason why more than four would be required.

3. With four resident judges it should be possible to have at least two on most appeals. This should lead to more informed decisions and greater consistency.

4. There would be a number of options for the provision of further judges:

(a) Some of those who have already been appointed additional judges of the Supreme Court could be asked to serve in the appellate division. The co-operation of the Chief Justice of the Federal Court would be required but the court would need to provide only one judge per appeal instead of the two or three sought under the present system. Whilst this might still involve utilising some judges of limited relevant experience, it would not only narrow the field but enable the Territory to determine which judges should be in that field.

(b) It might be possible to negotiate a reciprocal arrangement with the Northern Territory where judges of each territory sat when needed on appeals in the other. This would have two potential advantages. Firstly, the Northern Territory judges would have had experience in the type of cases under appeal and, indeed, the perspective of having had to determine such cases in a self governing territory. Hence, they would bring valuable experience and understanding to the ACT appeals. Secondly, it might provide broader experience for the ACT resident judges and reduce the risk of ACT decisions becoming out of step with the those prevailing in other state and territory jurisdictions. Alternatively, it might be possible to reach a similar agreement with one of the smaller states.

(c) Judges recently retired from, say, the Supreme Court of NSW might be engaged on a daily or weekly basis. I understand that this course is followed in the Fijian Court of Appeal and other jurisdictions. In a place as conveniently located as Canberra it should enable the selection of people with appropriate experience.

5. Any decision to divert appeals from the jurisdiction of the Federal Court to an ACT Court of Appeal would require amendments to the Federal Court Act as well as the Supreme Court Act. It will obviously be necessary to discuss this matter with the Commonwealth Attorney General but it is difficult to envisage any logical objection.

6. The decision would involve some revenue considerations. On one hand there would be some additional work which would have to be absorbed by the Supreme Court Registry. On the other hand, if the Supreme Court were to follow the Federal Court practice of charging fees for appeals some revenue could be expected. It is difficult to provide a precise estimate of the quatum of fees that might be collected. However, in civil appeals the Federal Court charges filing fees of $1,000 for individuals and $2,000 for bodies corporate and hearing fees of $1,000 and $2,000 per day respectively. Pensioners are not charged and no fees are payable for criminal appeals.

7. In the light of the above discussion, the Committee seeks your agreement in principle to proceed to discussion with stakeholders concerning this matter.