News: Court announces fewer oral hearings for special leave applications

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The ‘News Room’ heading on the High Court’s website contains a notice from the Court’s Chief Executive titled ‘Changes to Special Leave’ that is mostly devoted to the following change:

In represented applications, a Panel of Justices will determine in the first place whether an oral hearing is warranted. If the Panel considers that no oral hearing is required, the application will be granted or refused special leave on the papers. If an oral hearing is required, the application will be listed for hearing as soon as practicable.

This announcement continues a decades long trend away from oral hearings in the Court’s function of determining its own appellate docket and brings the Court’s practices closer those in comparable courts in the UK, Canada and the US. In previous years, the Court moved from five-judge benches to three-judge and then the current two-judge benches, and generally stopped giving oral hearings to self-represented applicants. The current announcement indicates that there will now be up to two hearings for all special leave applications, one on the papers and then a possible second oral hearing. It seems that the first non-oral hearing will always involve a decision on whether or not to proceed to an oral hearing and, if there is to be no oral hearing, will also determine whether or not special leave will be granted.

There are a number of aspects of this new process that are not entirely clear from the notice.First, it is not clear when the process commenced.The change in hearing procedures appears to be possible within the exisiting High Court rules:

41.11 Oral argument
41.11.1 Any two Justices may determine an application without listing it for hearing and direct the Registrar to draw up, sign and seal an order determining the application.

The notice states:

While some of the changes (relating to the introduction of new forms of application) will involve changes to the High Court Rules 2004, other procedures do not require changes to the Rules and have therefore commenced.

But the  notice contains no formal date, although the .pdf file name is ‘16.03.11_Notice_regarding_special_leave_changes.pdf’ (EDIT: It’s now been changed to ‘Special_Leave_Changes.pdf’) and it appears the notice went up last night. Second, the notice does not identify how many judges will comprise the ‘Panel of Judges’, how it will reach decisions or the criteria for determinations of whether or not oral hearings will be held. Third, there is no indication of when the outcomes of non-oral hearings will be determined or announced (e.g. the High Court’s scheduled ‘special leave dates‘?) and, indeed, whether any decision to proceed to an oral hearing (which may well be of interest beyond the parties) will be publicly announced or privately communicated to the applicant or respondent. Nor is there an indication of what precisely it means for an application to be listed for hearing ‘as soon as practicable.’

Despite these uncertainties, my view is that this move is a positive one. The Chief Executive states:

Adoption of these changes is expected to reduce the interval between the filing of an application and the oral hearing, or the pronouncement of the grant or refusal of special leave, as the case may be. It is anticipated that there will be fewer oral hearings in applications for special leave, with consequent savings in costs to litigants.

If this occurs, these are indeed significant savings for litigants and, it seems, also benefits for non-litigants with an interest in High Court proceedings (for example, the relatives of Daniel Morcombe, as discussed here), the wider public (that presumably will be well-served by speedier timelines) and taxpayers (because the Court might save money by holding fewer oral hearings, allowing that money to be directed to other High Court costs – or perhaps to reduce the Commonwealth deficit.) These savings must be balanced against the benefits of oral hearings (including potentially altered decisions and, perhaps, transparency.) As well, savings to litigants may translate to less earnings for Australian barristers and fewer opportunities for them to appear before the High Court.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

8 thoughts on “News: Court announces fewer oral hearings for special leave applications”

  1. I wonder if the apparent date (which suggests a document prepared in 2011) in the title of the Notice is a typo?

    • If you mean the 16.03.11 in the file name, that would be the date of the notice in YY.MM.DD format (i.e. 11 March 2016).

  2. Thank you for reporting this change. It does look like a positive one. The cost to barristers—that does not outweigh the overall benefits—might have another aspect: who gets a chance to appear before the High Court. It is reflected in the interview that Martin Clark has conducted for this blog with the retired Gummow J:

    WG: … Another problem is that the High Court is always eager to hear from the ‘next generation’ of counsel. They know the present generation. They’re interested in the next generation and the generation after the next one. They’re always eager to hear from counsel who are smart and starting off. There’s less of that now unfortunately.
    Solicitors think they have to get some known, big-name, but the Court is likely to say ‘oh not you again’. Whereas they say, ‘it’s Mr Brown or Ms Smith, they’re very bright’. They might have got special leave for example, and this happened several times, in my experience. We said ‘we’re granting special leave’ — words to the effect of ‘this counsel is good!’ And then they turned up on the appeal with some well-known leader. The client is paying more money, and the Court isn’t as cheerful as it would have been.
    MC: And you thought that counsel appearing in the special leave hearing would have done just as good, if not a better job?
    WG: Of course! I mean there may not be a lot of money involved, there may be an interesting, difficult legal point.

    BTW, in the UK the odd special leave hearing still occurs, like this one last week.

  3. I suspect “16.03.11” is written in reverse and intends to refer to “11 March 2016”.

  4. Thanks all for the 11 March theory. (We will have to put up with year/date ambiguities like these until 2032.)

    Note that the document title has now been updated on the hcourt website to remove the date altogether.

  5. I suppose it may also mean that for a case that “obviously” merits a grant would also not get a leave hearing but instead go straightaway to the appeal, ie “hope-full” cases might be treated the same as hopeless cases.

    • Yes, that’s how I read it. One possibility is that, if both judges agree on either granting or dismissing, then that’s it. But, if they disagree, then there’ll be an oral hearing. At the moment, it seems, such cases just get a three-judge bench for the oral hearing. I’ll be interested to see how many judges sit on benches for the cases that go to an oral hearing.

      • There is not much point in holding a leave hearing for cases such as this one http://www.austlii.edu.au/au/cases/cth/HCATrans/2009/284.html
        which lasted all of one minute (or more accurately, under 2 minutes!)

        But I just wonder with the cutting off at both ends, how much of the middle is left. It could be still quite substantial or it could well be not very much at all.

        I am reminded of one former judge saying he was always open to counsel convincing him otherwise during a special leave hearing. On this approach, we could still have quite a lot of leave hearings. But how that open-mindedness translates in practice is always a bit of a mystery to me.

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