Citizen's Right of Reply

Citizen's Right of Reply

The PRESIDENT (14:20): I have to advise that I have received a letter from the Chief Justice, the Hon. Chris Kourakis, on behalf of the justices of the Supreme Court of South Australia, requesting a right of reply in accordance with the sessional standing order passed by this council on 6 February 2020.

In his letter dated 20 February 2020, the Chief Justice considers that comments by both the Hon. M.C. Parnell and the Hon. C. Bonaros during debate on the Supreme Court (Court of Appeal) Amendment Bill on 5 December 2019 were based on information that was 'misleading because it was either incomplete or removed from its proper context' leading to assertions concerning the standing operations of the Supreme Court that were wrong.

Following the procedures set out in the sessional standing order, I have given consideration to this matter and believe that it complies with the requirements of the sessional standing order. Therefore, I grant the request and direct that the Chief Justice's reply be incorporated in Hansard. The Chief Justice's reply refers to attachments providing statistical information and graphical representations of those statistics. The statistical information will be incorporated in Hansard; however, the graphical representations are not able to be incorporated.

Dear President

I write on behalf of the Justices of the Supreme Court and request that this letter be incorporated into Hansard by way of reply to the criticisms of the Supreme Court in its appellate jurisdiction made by the Honourable Mark Parnell and the Honourable Connie Bonaros in the course of the debate on the Bill for the establishment of a Court of Appeal (1).

I have spoken to those Honourable members privately and it appears that they accepted at face value information provided to them by the Attorney-General and some members of the legal profession. Unfortunately, the information on which some of their comments were based was misleading because it was either incomplete or removed from its proper context. As a result, the speeches of the Honourable members wrongly asserted that the Supreme Court was poorly regarded by the High Court, that a disproportionate number of the Supreme Court judgments were overturned by the High Court and that the Supreme Court did not determine a large proportion of the appeals it heard in a timely manner. All three assertions are wrong.

Regard for Supreme Court

First, I raise the anecdote related by the Honourable Mark Parnell. It was that, on an application for special leave to appeal, the High Court first asks 'Where is [the appeal] from?' and if counsel responds 'South Australia', the Court immediately grants permission to appeal. I acknowledge that the Honourable Mark Parnell himself recognised that the anecdote was 'likely overstating the case' but nonetheless he suggested that it was indicative of what he described as a 'quality control' issue. In fact, there is not even a grain of truth in the anecdote. Indeed, the person who relayed the anecdote to the Honourable Mark Parnell appears mischievously to have adapted an old joke often swapped amongst barristers about judges whom they wish to disparage. Its falsity is obvious because the extensive documentation, including the judgment against which the appeal is brought, provided to the High Court before it sits to hear an application for special leave to appeal will have already made it very clear which court delivered the judgment. I also know it to be false because I have frequent contact with interstate judges, including the Justices of the High Court, but have never heard an adverse comment made about the quality of the judgments of the Supreme Court of our State. The anecdote is also falsified by the extremely low percentage of judgments of the Court overturned on appeal to the High Court in recent years. Of the judgments delivered in each of the years 2016 to 2018 which have been overturned by the High Court, the percentage ranges from zero to 0.65 per cent. That percentage compares more than favourably against the other Australian jurisdictions. The percentage over the three years combined is 0.43 per cent, which is the lowest of any mainland State or Federal jurisdiction. I explain these statistics in greater detail by reference to the speech of the Honourable Connie Bonaros.

(1) I understand that, by resolution passed for the current session of the Legislative Council, in accordance with a long-established practice, the President is authorised to deal with complaints made by persons whose reputations have been adversely affected by statements made in the Council: Enid Campbell, Parliamentary Privilege (The Federation Press 2003), pp 75-76.

High Court Appeals

The Honourable Connie Bonaros informed the Legislative Council that between 2004 and 2015, of the 30 matters appealed to the High Court, 19 judgments were overturned. I observe at the outset that much of that statistical information is more than a decade old. The Attorney-General, at my request, has provided me with the document, prepared by her Department, which appears to have been the Honourable Connie Bonaros' source of information. Unfortunately, the document does not anywhere place that information in its proper context. Using as the only statistic the proportion of successful to non-successful appeals after special leave has been granted gives a completely inaccurate picture about the performance of the Court for the reasons which I explain below.

The only relevant measure of frequency of error is the rate of judgments overturned to total judgments delivered by a court. It is well understood by legal practitioners, with an understanding of the appellate practice of the High Court, that special leave to appeal is only infrequently granted and, when it is, it is generally because the proposed appeal appears to have merit to the Justices of the High Court who granted leave. It is not surprising, therefore, that once special leave is given, the appeal is often successful. For that reason, the significance of the number of appeals allowed depends not on its proportion to the number of applications for special leave granted, but on its proportion to the total number of judgments delivered by the Court.

The tables and graphs attached to this letter show the number of judgments delivered in each year from 2016 to 2018, and the number of those judgments subsequently overturned by the High Court. In 2016, the percentage of successful appeals, to total judgments delivered by the Full Court of the Supreme Court of South Australia, was 0.65 per cent. South Australia ranked second behind New South Wales in holding its judgments. The highest percentage of successful appeals in that year was in appeals from the Full Court of the Federal Court of Australia, not because the standard of that Court is less than any other, but because the matters heard by it are primarily in the Federal jurisdiction, in which, therefore, the High Court is likely to take a closer interest.

For the 2017 year the percentage of successful appeals against the total judgments delivered by the Full Court was 0.58 per cent. In that year, judgments of the Supreme Court of South Australia were less likely to be overturned than any other court in Australia.

For the 2018 year there was no successful application for special leave to appeal against a judgment delivered by the Full Court and accordingly judgments of the Supreme Court of South Australia were, once again, the least likely to be overturned.

The tables and graphs attached also consolidate those years which show that for South Australia the percentage of appeals to the High Court allowed, out of the total judgments delivered, was lower than any other jurisdiction. Obviously enough, the relative proportion in each of the jurisdictions will vary depending on the years selected. It does so for a number of reasons, primarily dependent on factors other than the legal standard of the intermediate courts of appeal. That is not surprising. Governments across Australia are well aware of the importance of maintaining proper standards in the administration of justice of the nation's highest courts and make appointments accordingly. Reasons for variations in the percentage of judgments against which appeals are successfully brought from year to year include statutory changes and emerging general law principles argued in a particular jurisdiction which may attract the interest of the High Court. It must also be remembered that some judgments are reversed only in part, that the grounds of appeal may raise issues not fully argued in the intermediate court of appeal, and that some appeals turn on a fine evaluation of the evidence, on which different views may reasonably be taken.

Judgment Delivery Times

On the question of judgment delivery times, again the information provided was incomplete. The Judges accept that there have been occasional substantial delays in the delivery of reserved judgments by the Full Court. The reason for those delays is usually the high judgment writing demands of appeal courts and the under-resourcing of the Court to which I refer further below.

However, the attached table shows that, despite that under-resourcing, the average time for delivery of Full Court judgments after they have been heard is about three months. The table also shows that appeals are listed for hearing within about two months of the parties or their lawyers asking the Court to set down the appeal for hearing. I understand, albeit from anecdotal evidence, that the time from when the parties and their lawyers are ready to set down an appeal to the delivery of judgment compares favourably with other Australian jurisdictions.

The Honourable Connie Bonaros referred to backlog benchmarks for the time taken to dispose of actions. The backlog statistic is based on the amount of time an action is before the Court. That time is primarily a function of the action or inaction of the parties or their lawyers. I have been provided with a document prepared by the Attorney-General's Department which may have been the Honourable Connie Bonaros' source of information. The Honourable Connie Bonaros appears to have mistakenly quoted from a graph setting out backlogs for civil trials, not appeals. The mistake is understandable because the Attorney-General has informed me that copies of the documents were not left with Ms Bonaros to study for herself, and because the document does not explain that an action may remain in a court list because of the time it takes the parties or their lawyers to prepare it for hearing. If the backlog statistic was a reliable indication of court delay, the measure mentioned by the Honourable Connie Bonaros would have supported an increase in the judicial resources of the trial division, not the appeal division. It is evident from the Attorney-General's document that the benchmark statistics for the appeal division were much lower. If the document had been left with the Honourable Connie Bonaros, she would have seen that the criminal appeal backlog was generally within, or close to, the benchmark and that the civil appeal backlog benchmark was exceeded by between six per cent and 25 per cent, depending on the particular year.

However, and more fundamentally, the backlog statistic is not a measure of the efficiency of the Judges. Matters are not listed before the Full Court until the parties or their lawyers indicate that they are ready to proceed. There are sometimes substantial delays, caused by lawyers or the clients, in reaching the point of listing a matter. The table I have attached shows that the Full Court has set down matters for hearing within about two months of the parties or their lawyers notifying the Court that they are ready to have the matter listed. I acknowledge that the Honourable Connie Bonaros is not familiar with the Court backlog measure.

Court Resourcing

I return to the question of the proper resourcing of the Court. It should be noted that from 2012, due to budget cuts and in order to preserve sufficient Registry staff to deal with the work of the courts, the number of Supreme Court Justices was reduced from 13 to 12. In late 2013, Justice Parker was appointed as one of those 12 Judges, but at the same time was appointed President of the South Australian Civil and Administrative Tribunal (SACAT). He divided his time equally between SACAT and the Supreme Court. Effectively, the number of judges fell to 11.5, representing a reduction of more than 10 per cent in the judicial resources of the Court. In 2017, with the appointment of Justice Hughes as the full-time SACAT President, the judicial complement was again 12. However, from June 2019 the non-appointment of a replacement for Justice Vanstone reduced the complement to 11 and, later in the year, the appointment of Justice Hinton as Director of Public Prosecutions reduced it to 10. Nonetheless, as the attached table shows, the Court has met the three-month benchmark for the delivery of judgments in 2016, 2017 and 2018 in terms of the average time for delivery.

I provided a draft of this letter to the Honourable Mark Parnell and the Honourable Connie Bonaros. I accept unreservedly their assurances, given in their replies to that letter, that they relied on information provided to them in good faith. I thank them for engaging with me on this issue in the spirit of mutual respect which is to be expected in exchanges between our two branches of government. I am grateful to them for permitting me to convey to you their support for the incorporation of this reply into Hansard.

It is important that statements made within the institutional arms of government should not disparage other arms of government unless, after proper investigation, there is good reason to do so. To avoid difficulties of this kind in the future, I make myself available to provide, in an appropriate form, an explanation for, and a proper context to, any statistical information concerning the administration of justice in the courts of this State, should their operations become the subject matter of debate in the Legislative Council.

Yours sincerely

The Honourable Chris Kourakis

Chief Justice of South Australia

SUMMARY 2016

Full Court of the Federal Court had the highest percentage of judgments overturned (2.08%)

NSW had the lowest percentage of judgments overturned (0.14%).

SA had the second lowest percentage of judgments overturned (0.65%).

SUMMARY 2017

Full Court of the Federal Court had the highest percentage of judgments overturned (4.37%).

South Australia had the lowest percentage of judgments overturned (0.58%).

SUMMARY 2018

Full Court of the Federal Court had the highest percentage of judgments overturned (1.26%).

Supreme Court of South Australia had the lowest percentage of judgments overturned (0.00%).

Number of judgments granted special leave and overturned which were handed down by SC between 2016-2018 as a percentage of the total judgments handed down by the SC during that period.

Full Court of the Federal Court had the highest percentage of judgments overturned (2.58%).

Supreme Court of South Australia had the lowest percentage of judgments overturned (0.43%).

COURTS ADMINISTRATION AUTHORITY

Supreme Court average time from set down to hearing (in days) and hearing (judgment reserved) to judgment delivered (in days)