Sunday, 11 October 2009

Family Court new listing procedures in Justice Murphy's list

NEW TRIAL LISTING SYSTEM – MURPHY J
1.
I intend implementing a new trial listing system for matters within my docket.
2.
I am doing so having consulted with a number of members of the profession
and other judges, including judges in other States.
3.
Despite the increasing complexity of matters being dealt with by this court,
matters continue to settle at, or very close to, “the door of the court” or which
adjourn. Under the current system, that has the potential to result in “judicial
downtime”. That “downtime” is almost always used for judgment writing.
But, as a result, this fundamentally important task occurs unpredictably and is
dependant upon the uncertainty of cases settling. This situation is not
desirable; nor is allocated hearing time not being utilised for hearings.
4.
There can be little doubt that the most efficient means of dealing with this
problem is overlisting within a running list with separate, pre-allocated
judgment writing time.
5.
That, though, creates other difficulties for parties, practitioners and witnesses,
not the least of which is uncertainty. Also, such a system can, as it seems to
me, only work efficiently when applied registry-wide so that judges whose
cases settle or adjourn can take up other cases awaiting trial within the
running list.
6.
My new listing system attempts to strike a balance between, on the one hand,
minimising inconvenience to parties, practitioners and witness and, on the
other hand, maximising throughput of cases.
7.
The proposed new listing system will apply only to matters within my
docket.
8.
It will commence with trials to be listed for final hearing as and from 1
February, 2010. It will continue until further notice.
9.
The system will apply to all trials listed for final hearing irrespective of the
nature of the application/s.
OVERVIEW
10.
My work will be divided into four-week cycles commencing 1 February, 2010.
During the first three weeks of each cycle, I will sit only in trials. In the fourth
week of each cycle I will sit in all other judicial work, viz: Magellan Directions;
duty lists (if any); first days; continuation days; short cause hearings etc.
11.
Leave, Full Court commitments, necessary commitments to other Registries
and the like will be accommodated as and when each falls within each four-
week cycle.
12.
Trials will be allocated into each four-week cycle at a callover. I will monitor
the need for callovers by reference to the number of matters in my docket that
are ready in all respects for a hearing. The “lead time” between callover and
the trial listing will attempt to balance not only the number of matters
awaiting trial, but also to facilitate parties having their trial counsel of choice.
13.
Similarly, the number of four-week cycles to which trials will be listed will
vary, but will, it is anticipated, usually be two. The first callover will be held
at 9.00am on 12 October, 2009. All parties and practitioners required at that
callover will be (or have been) notified. Cases at that callover will be listed
into two four-week cycles, commencing 1 February, 2010.
14.
Trials will be listed, one following the other, according to their allocated
estimate of length with the addition of an extra day (or part of a day). That
extra day (or part of the day) will be used to either deliver the judgment or to
write a draft of a judgment to be delivered on a later date. Accordingly, it
may not be uncommon for trials to commence, for example, on a Thursday or
Friday, and it may be that, in some cases, a trial will commence at 2.15pm.
15.
At each callover, once all available trial days are allocated, the additional
matters will be placed on a reserves list. The purpose is to have matters ready
to proceed, necessarily on short notice, in the event that an allocated trial
settles or adjourns.

16.
The list is voluntary – that is, no trial will be “forced” on. But, it is vital to note
that “reserve lists” have been tried in the past and have failed utterly. Parties
and practitioners will be asked to indicate whether their case is suitable or not
for listing on that reserve list, bearing in mind that any such trial will be called
on with short notice. Shorter matters, matters where there are issues of law or
discrete issues, and cases where parties and witnesses can be marshalled at
relatively short notice might be considered suitable. Obviously, as much
notice as possible will be given. A genuine attempt will be made to give
matters on the reserve list but not reached priority at the next callover.
17.
In large measure, avoiding a future overlisting / running list system will
depend on the success of the reserve trials list.
18.
Cases in the Magellan List are readied for trial by the issue of a trial notice by
Registrar Turner and allocated as evenly as possible to all trial judges within
the registry. Those allocated to me will be included in my callovers.
19.
It is highly desirable that the legal practitioners (if any) who will actually
conduct the trial be present at the callover. In any event, those who attend the
callover MUST be fully conversant with all issues relevant to the matter and
the prospective conduct of the trial.
20.
Not later than 48 hours prior to the callover, all practitioners or self
represented parties involved will be expected to have completed the attached
Callover Document and to have e-mailed it my associate (and
contemporaneously to the other side/s) at brisbane@familycourt.gov.au .

GETTING TO A CALLOVER
21.
I will manage all cases in my docket in the usual way. (See generally Chapters
12 and 16 Family Law Rules 2004).
22.
My usual practice is to assume that legal practitioners do not need to be
“spoon fed” directions for trial.
A legal practitioner’s professional responsibilities include readying the matter for trial in an intelligent, appropriate and cost-effective way consistent with the needs of the particular
case.
23.
Accordingly, I frequently (but not always) make orders that assume a process
whereby directions will be made by consent. An example of the order made is
attached. At a point when directions for final hearing are contemplated as
appropriate, an assessment will be made by the parties, together with me, of
the likely approximate date of hearing so that directions can be framed
accordingly.
24.
At that time, assuming an order is made in terms similar to that contemplated
above, the orders will include an order that the parties shall appear at a
callover at a time and date to be advised and also an order for the parties to
file by e-mail with my associate the Callover Document not later than 48 hours
prior to that callover. Failure to do so will likely result in the matter losing its
place and being adjourned to a Registrar for directions.
25.
An order will also be made that a compliance check will be held by a Registrar
at a date and time to be advised (approximately four weeks prior to the
allocated trial dates) and, unless considered inappropriate by the Registrar, by
telephone.
26.
If at the compliance check the Registrar is satisfied that the matter is ready for
trial, the Registrar will notify me and the parties in writing of that fact.
27.
In the event that the Registrar has concerns about a matter’s readiness for trial,
those concerns will be raised with one or both parties, as the case may be, with
a view to them being remedied.
Assuming proper professional responsibilities are being exercised, attention is being given to the matters raised, and appropriate co-operation is being exhibited, the process will be
facilitative, not punitive.
28.
If the Registrar has serious concerns that the matter cannot be ready for final
hearing on the allocated dates, those concerns will be raised with the parties
with a view to them being remedied. They will also, in that case, be raised
with me.
29.
If the Registrar, after consultation with the parties, remains of the view that
the matter cannot be readied for final hearing, the matter will (irrespective of
the views of the parties) be listed for mention before me at the earliest
opportunity with a view to vacating the trial dates.
30.
I am hopeful that this system will assist in the efficient use of judicial time and
facilitate a greater “throughput” of hearings.
31.
I seek the assistance of the legal profession in implementing it and welcome
considered and constructive feedback in respect of its perceived strengths and
weaknesses.
Murphy J
23.9.09



MATTERS IN THE DOCKET OF JUSTICE MURPHY
SAMPLE DRAFT ORDERS



...IT IS ORDERED THAT:

1. This matter be listed at a callover of matters awaiting trial before Justice Murphy at 9.00am on a date to be advised or [specify date].
2. Upon receiving written notification of the date of the said callover, the parties, or their legal practitioners as the case may be, shall:
(a) confer as soon as reasonably practicable with a view to settling such directions for trial applicable to their matter as are necessary for the efficient disposition of the hearing; and
(b) within 28 days of the said written notification, forward those agreed directions by e-mail, agreed to by all parties, to the associate to Justice Murphy at brisbane@familycourt.gov.au.
3. The said directions shall include the following:
(a) Not later than 2 days prior to [the callover date] each of the parties shall file, by forwarding same by e-mail to the associate to Justice Murphy at brisbane@familycourt.gov.au (and contemporaneously to the other side/s), a duly completed and signed “Callover Document” (a copy of which is annexed to these orders);
(b) Not later than 14 days prior to the first day of trial to be allocated at the said callover, the parties shall file:
(i) A joint chronology of relevant events and, in the event that a relevant date is not agreed, the chronology shall be in the form “husband alleges”; “wife alleges” or as the case may be;
(ii) In a case in which an order pursuant to s 79 of the Act is sought, an updated joint agreed balance sheet which shall indicate any areas of disagreement and reason/s for same;
(iii) A minute of the precise orders sought. In the event that those orders are in accordance with a document previously filed, that minute shall be in the form: “As contained in [insert document] filed on [insert date of filing];
(iv) A short outline of argument outlining the relevant issues of fact and law and the findings sought in respect of same said to justify the orders sought in the said minute;
(v) A list of documents to be relied upon at the trial.
4. A compliance check shall be held by a Registrar at a date and time to be advised, approximately four weeks prior to the allocated dates of trial, and, unless the Registrar shall advise in writing otherwise, such compliance check shall be by telephone.
5. In the event that the said directions are considered appropriate, an order by consent shall issue in chambers incorporating those agreed directions.
FAMILY COURT OF AUSTRALIA

MATTERS IN THE DOCKET OF JUSTICE MURPHY
CALLOVER DOCUMENT

Filed by:
Applicant Respondent ICL Other party
Matter:

File no.

Callover date:

Estimated no of days:


Practitioner conducting trial (if any)
Name


Family Consultant
Name
Unavailable from (date)
to (end date)




Expert witnesses (attach additional page if necessary)
Name
Area of expertise
Unavailable from (date)
to (end date)













Lay witnesses (attach additional page if necessary)
Name
Purpose of evidence
Unavailable from (date)
to (end date)













CERTIFICATION

I, _______________________________, legal practitioner, represent the Applicant Respondent in this matter before Justice Murphy and HEREBY CERTIFY TO THE COURT THAT:

1. I am fully conversant with the issues in these proceedings.

2. I have complied with Rule 19.04 of the Family Law Rules 2004 with respect to notification of costs in so far as it applies to the other side and will comply with the Rule in so far as it applies to notification to the Court at the callover. My estimate of costs so provided includes the estimated costs of trial.

3. I have conferred with the legal practitioner named in this document who is conducting the trial on behalf of my client and, after such consultation:
(a) my best estimate of the likely length of this trial is as provided earlier in this document;
(b) in my professional judgment, this matter is ready in all respects to proceed to trial.

4. I will advise the court in writing immediately I become aware of any issue, whether within my control or not, that might result in this trial not being ready to proceed on its allotted dates or if the matter may resolve or of any matters likely to result in the trial proceeding for a shorter or longer time than its current estimate.

Signed: ______________________________ Date: ___________________
Legal Practitioner

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