Operation of the Court

How Does a Matter Progress through the Court?
Although the precise way in which a matter moves through the High Court varies between cases, there are three distinct phases:

  • Preparing the submissions (completed by the lawyers for the parties)
  • Conducting the hearing (involving both the lawyers and the Court) and
  • Producing the verdict and written reasons for judgment (the Court).

Preparing the Submissions
Once the Court grants leave and agrees to hear the case, a hearing date will be set. Prior to that hearing, lawyers for the parties prepare written submissions to be considered by the Justices of the Court both prior to and during the hearing. Usually, written submissions will need to be lodged with the High Court Registry within a few weeks of the grant of leave to appeal. At a maximum of 20 pages (plus appendices), written submissions are highly concise documents that state the legal issues in the case, the relevant facts, legislation and judicial decisions, and, most importantly, the arguments and precedents upon which counsel appearing before the Court will rely. Submissions are exchanged between the parties as well. Recent examples can be found here and here.

Written submissions allow the Justices to understand each party’s arguments before the hearing. This can increase the efficiency of hearings by allowing the Justices to move straight to the most important issues in the case. In addition to written submissions, some cases involve replies (example), in which a party responds to arguments raised in the opposition’s written submissions and/or clarifies the party’s own arguments, and chronologies (example). The ‘High Court Documents’ section of each Case Page on this blog contains a link to the documents mentioned here, held on the High Court website.

Hearing: Before the Court
High Court cases generally take one half to one full day of the Court’s time. However, highly complex matters may require two or more hearing days. Some hearings can be dealt with in a matter of hours, others, such as the 1983 Tasmanian Dam case (Commonwealth v Tasmania [1983] HCA 21) lasted two weeks.

Hearings involve counsel making oral submissions before the Full Court. The word ‘submission’ is reflective of counsel’s role in Australian courts: to ‘submit’ arguments for the court’s consideration and, ultimately, its decision. In addition to raising arguments in support of their client’s case, counsel must also respond to questions from the Bench. These may include clarifications about the argument or legal authorities cited, or they may include challenges to a weakness in the arguments put the Court.

A transcript of a typical criminal appeal hearing — Baiada Poultry Pty Ltd v The Queen — can be found here. In this case, oral arguments before five Justices lasted for approximately an hour and a half, and were adjourned to be continued the next day. The record shows various Justices asking questions or requesting further information on specific topics from counsel representing both parties, and illustrates the kind of language used by the barristers and the Bench.

During oral argument in Baiada Poultry, several speakers referred to an ‘appeal book’. An appeal book is a more substantial case file used produced by the Court’s support staff that usually contains pleadings, relevant lower court judgments and statutory provisions (in full), cases that the parties have stated they intend to cite, any relevant transcripts, and any other material (reports, journal articles) that may be relevant to the hearing.

Judgment: The Court’s Decision
Before and after hearings, the Justices meet ‘in conference’ to discuss the issues raised by the case and impressions of the arguments contained in the written submissions or submitted in oral argument. Following the hearing, however, is when Justices begin to prepare reasons for judgment, using the materials from the hearing.

The ordinary procedure begins with each Justice producing a first draft of reasons for judgment, with the assistance of the Court’s support staff. Following further reflection, discussions and conferences with the other Justices, each Justice further refines his or her written reasons, and eventually circulates a final draft.

At this point, Justices may agree to produce joint reasons, or may decide to issue a judgment that agrees with the reasons produced by another Justice, but adds other comments. Once each judgment is finalised and proofed, the Court’s orders and catchwords for the decision are written and reviewed. Finally, each Justice’s reasons are signed and handed down in the Court.

A Statistical Snapshot from 2011–2012
The following statistics from the Court’s most recent annual report (2011–2012) illustrate the Court’s workload:

  • 728 cases were filed at the High Court, and 455 of these were decided by the Court.
  • The Court decided 384 special leave applications, 59 appeals, 3 cases involving Constitutional Writs, and 9 other cases (a total of 71 matters).
  • Of the 443 special leave applications made, 59 were allowed, 325 were dismissed and 59 were either discontinued or deemed abandoned by the parties.
  • Approximately 50 per cent of these special leave applications were determined ‘on the papers’ (without oral arguments).
  • Of the 67 appeal cases, 33 were allowed by the Court, 29 dismissed by the Court and 5 discontinued by the parties.
  • 193 cases were commenced in the original jurisdiction of the Court. The Full Court delivered judgments on nine of these cases.

Other recent annual reports of the High Court can be found here.