Curial productivity

This morning I went up to the directions list in the Equity Division of the Supreme Court [of NSW].  Something was different.  There was a (mild, very mild) buzz of excitement.

This list is usually heard by a registrar. Most of the time that registrar is Deputy Senior Registrar Musgrave.

Today, Senior Deputy Registrar Musgrave was sitting to one side of the bench, looking a little uncomfortable.  At first I thought he must be training some new registrar, as the list was being presided over by another man to whom SDR Musgrave was handing the files as need be.  But no: the presiding officer was being addressed as “your Honour.”  I then realised (a South African accent helped) that it was Justice Hammerschlag. (Note for the cognoscenti: if anyone thinks lawyers stick together, they should see what the then Mr Hammerschlag said about Justice John Dowd at paragraph 82 or thereabouts of this case.)

At the point I arrived (and until I left), the judge was dealing with directions to be made in cases where the parties have agreed on what directions they will seek.  As each set of legal representatives stepped up to the bar table in turn and announced their matter, His Honour kept asking them if timetables had been complied with.  Where they hadn’t been, he was making directions which included orders that, if directions were not complied with, affidavits had to be filed in court on the next occasion explaining why. 

I assume that Justice Hammerschlag had been sent down by the Chief Judge in Equity (Justice Young) to put a dose of salts through the list.  He didn’t seem to be in a very good humour at all.  In fact, grumpy would be putting too mild a word on it.   I don’t know whether the grumpiness was assumed as part of the dose administration, or was a result of his own unhappiness at having to carry out such a menial judicial task.

Such directions lists are confidently predicted soon to become a thing of the past, once e-court, now called Justicelink , is “rolled out” over the entire NSW court system.

There is more to say about this, as well as whether monstering litigants to comply with court timetables really leads to efficiency, given that (1) expenditure by the litigants themselves is not taken into account and (2) the quality of justice achieved is probably immeasurable. The intention, of course, is to monster their lawyers, but a bit like when old people’s homes (or, more recently, colleges for overseas students) are closed down for non-compliance, it may sometimes be the very people you are trying to protect who are punished, at least in the short term. I presume economists or at least law-and-economists must have a special term for this, but I can’t say I know what it is.

Unfortunately, there is just too much I would need to explain about the process of litigation to make any kind of intelligible point, and the resulting post would be far too long for anyone to read.

Today I escaped a monstering because my matter was, at least recently, up-to-date. If (as seems likely) the judicial visitation continues or is emulated as presumably the registrar is meant to emulate it, things will be trickier for me on Thursday when I am next there. The matter is one which on any view involves so modest an amount of money that any costs incurred will definitely be disproportionately large. If the court goes around ordering affidavits to be filed to explain delay it will only be making things worse.

(Do you like this lawyer-speak, “the court?” It still ultimately means the registrar or, if we are so lucky, judge, grumpy or not.)

6 Responses to “Curial productivity”

  1. The Rabbit Says:

    Do I remember that Kirby J once said (to paraphrase) that the common law depends on what the judge had for breakfast?

  2. marcellous Says:

    Hi R, welcome back!

    The idea (not necessarily confined to the common law) more famously originates with Jerome Frank, though I don’t doubt that Kirby J will have referred to it at some stage. I think he would aspire to a more principled approach.

    Nevertheless, you are right to pick up the echoes of legal realism in my final paragraph.

    PS: Is it true that you maintain a locked blog, and if so, when are you going to vouchsafe me the key?

  3. Club Troppo Says:

    […] tells of an encounter with an intimidatingly grumpy judge at the weekly directions list session, seemingly sent down to whip practitioners into timely […]

    [emphasis added]

    For the record, the directions list is daily except for Wednesday. Perhaps “intimidatingly” overstates the position, or at least overstates it so far as I was concerned.

  4. Curial productivity - An odd sight « Stumbling on melons Says:

    […] Stumbling on melons Just another WordPress.com weblog « Curial productivity […]

  5. Legal Eagle Says:

    I think judges can’t help feeling irritated when matters are not progressing as they should. I guess they hope some bad temper will scare any litigants who are dragging their feet or any slack lawyers.

    Good luck if you do have to tell his Honour that the matter is too small to be worth filing an affidavit explaining delay… Surely he’d have some sympathy for that? Or maybe not, he sounds rather fierce.

    Thursday was back to normal. High point: the mildly camp registrar saying, though not in my matter, “Naughty, naughty plaintiff.” (Truly.) And then on being told that the plaintiff blamed the court for whatever it was, “Well then, naughty, naughty Supreme Court.” It seems camper in print than it did in reality. Maybe that’s why Hammerschlag J was sent to tighten things up, but it may also have been a little ironic after-echoing of his attempt at harrowing the list.

  6. Legal Eagle Says:

    P.S. I wonder whether it increases productivity too? I suspect not, but maybe it makes the judge feel better. :-D

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