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.