News: Court’s workload in March and April 2019 is ‘extraordinarily large’

In a directions hearing on Wednesday, Gordon J rebuffed an attempt by Julian Burnside QC to avoid having a challenge to the Court’s 2004 Al-Kateb ruling heard in February (because he would be overseas) saying:

Well, the difficulty about it is twofold, Mr Burnside. One is that – and this is why they are insurmountable hurdles – this case, your client, has been in detention for a long time; that is the first. The second is that the Court’s workload in March and April is extraordinarily large and so, in the circumstances, the Court thinks that it would be in a sense the only opportunity and window to hear what I suspect is a one-day case in the second week of February.

This is the first indication from a High Court judge of the Court’s 2019 workload. What is not clear (to me, at least) is what the Court’s extraordinary workload in March and April next year will comprise.

There is only one sitting of the High Court remaining in 2018 – the two weeks in December – but the Court has (again) only scheduled three not-especially big cases, filling just one week. Putting aside any special leave grants in December (there are six matters listed for oral hearing),  the Court will enter 2019 with eleven full court matters pending for hearing:

Assuming (as is very likely) all eleven of these cases will be heard in the six sitting weeks through to April, this does not seem like a heavy load at all. There are some 25 sitting days during those weeks, and yet only one of the eleven cases is foreshadowed (for now) as a two-day matter. None of them seem to be blockbusters.

There are a number of possibilities that may explain Gordon J’s remark:

  • one of the eleven matters (perhaps the first one) will actually take a good deal of the Court’s time
  • the Court may have a backlog of as-yet unpublished matters – for example, the legacy caseload from Nauru – that will be dealt with in March and April
  • the Court may be anticipating hearing matters that have not yet reached a ready stage for hearing (including perhaps the challenges concerning Aung San Suu Kyi, parliamentary committee summonses and ASIO findings on immigration detainees, which are yet to be referred to the full court.)
  • the Court may be anticipating a rush of original jurisdiction matters for some other reason (for instance, challenges before and after the next federal election)
  • there may be pending hearings in complex matters whose very existence is currently suppressed
  • Gordon J’s comment may concern already heard matters where complex judgments are being written (such as the abortion protest cases and the native title compensation case)
  • the Court may have non-judicial work in those months (for example, hosting visitors or attending conferences.)

Regardless, the fact that the Court faces an extraordinary workload in March and April provides a possible explanation for the low number of special leave grants in recent months (but not the low number of cases the Court has opted to hear of late.)


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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.

4 thoughts on “News: Court’s workload in March and April 2019 is ‘extraordinarily large’

  1. Curious,when as I pointed out,the November sittings were 1 week instead of 2 and December is the same.

  2. An update.Five of the matters in your list above are listed in the February sittings of the Court including M47,so that only leaves 6 for March/April plus whatever grants of special leave are made on Friday.Of the six left,only one is a case of more than one day(Comcare) which is about the use of twitter in the course of employment,and raises free speech issues.
    So where is this very heavy workload coming from?

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