More than half the recent and current Federal Court judges have take a year or more to write judgments, according to a rare ranking of judges that found the speed of justice in the court of choice for companies was largely a lottery.
A database of 11,000 cases compiled for AFR Weekend shows that 39 judges out of 69 have taken more than a year to write a judgment – one took 934 days to be finalised after the hearing ended – and six took more than two years to write judgments.
The two longest waits were out of the judges’ hands because justices Richard Tracey and Alan Robertson had to wait for legal action in other courts to be completed.
Others were highly complex, although one of the most famously complicated cases – the C7 litigation between the Seven group and News Corp – took only ten months to write.
Some barristers have privately complained that some Federal Court judges don’t write judgments when they are fresh in their minds, leading to long delays that frustrate companies that may have spent millions seeking a legal ruling.
“It’s very important to make a start on a judgment, however rough,” said former Federal Court judge Peter Heerey. “If you don’t start straight away, you wipe out a lot of thought. You probably forget the name of the case, not just what it’s about.”
Sarcastic comments from the bench
A rare analysis of individual judges’ performance based on the data in Friday’s Australian Financial Review triggered mixed responses among the legal profession and a judiciary unused to outside scrutiny.
The Federal Court judge hearing a defamation trial involving actor Geoffrey Rush sarcastically referred to the ranking in court. His average 10 weeks to write judgments was 11th slowest on the court.
“I’ll give short reasons on Monday,” Justice Michael Wigney said when asked to accept some expert evidence. “No, I might give long reasons. It will improve my statistics.”
Justice Wigney’s longest delay writing a judgment was 532 days for a case involving a building and computing company than began in 2016 and was decided in April this year.
Some lawyers said judging judges by how long they take to write judgments, or their daily output, was simplistic and unfair. Others said it could draw attention to broader problems that make the courts less efficient.
Courts should publish detailed information about their efficiency because the statistics in their annual reports do not contain enough detail, said Michael Legg, the director of the IMF Bentham Class Actions Research Initiative at the University of NSW law school.
“I think they have got to accept that one of the reasons people conduct these studies, even if it’s not as accurate as you might like, is because the courts don’t provide this information themselves,” Professor Legg said.
Some judges 20 times faster
The Federal Court’s own data says that 7 per cent of cases take 18 months, from start to finish, and 78 per cent take less than six months. The AFR Weekend data showed some judges can write judgments up to 20 times faster than others.
The average judge, with the assistance of a legal associate, secretarial staff and transcripts, takes 6.3 weeks to issue a judgment after a hearing is held. But Lindsay Foster averages 15 and a half weeks, according to the data.
Justice Heerey, who retired from the Federal Court in 2009, said judges were expected to be in court most days, which made it harder to write judgments immediately after cases ended.
Appeals force judges to take longer to write judgments, he said, because they were often based on a claim that a judge didn’t consider every point made in court. To protect their judgments from being overturned, judges were therefore including more material.
‘Mountain of paper’
Michael Douglas, a legal academic at the University of Western Australia who also works on litigation, said judges were being forced to do an excessive amount of reading in cases where huge amounts of documentation was collated by cheap trainee lawyers.
“Judges need to wade through a mountain of paper and this is a problem not created by judges but by litigants,” he said.
The most prompt Federal Court judge is Craig Colvin, a Perth barrister who joined the court in February, who takes under a week to write judgments, based on 42 cases.
The data does not include every case over the timeframe or multiple-judge appeals but may represent one of Australia’s largest independent analyses of judicial output.