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Chapter 7. General results of the consultations

As already noted above, an earlier draft of the Model KPIs was circulated in March 1999 to the chief judicial and administrative officers of each of the New South Wales Courts, for their advice. Several very valuable comments were received, and the improvements made to the model as a consequence have been noted at several points in the preceding discussion.

At a more general level, most of the responses received were supportive. Some concerns were expressed that related fundamentally to issues about performance standards and measurement. These call for a few comments.

While it was acknowledged, for example, that the suggested Backlog and Overload measures were recognised and useful indicators, it was noted their use required the Courts to establish time standards for case processing. At this point several New South Wales Courts do not have these in place. Several responses raised concerns about fixing appropriate time standards.

It does need to be emphasised, albeit in a somewhat uncompromising vein, that modern principles of court administration dictate that the basic case processing time standards adopted by courts should relate to the time taken from initiation (rather than some defined later point in proceedings) to finalisation (including the time taken to deliver judgment where judgment is reserved). The case management schemes administered by the Courts need not necessarily — but nowadays generally do — reflect acceptance by the Courts that they have a responsibility for managing the progress of their cases ‘from go to whoa’.

Some of the concern expressed about appropriate time standards perhaps reflects undue or misplaced concern about the criticism a Court may face if it fails to meet its own performance standards. Performance indicators are about encouraging better management, not assessing blame. Time standards are goals and should be based on informed value judgments about how long it should take to finalise cases. Experience indicating how long it does take may be useful as a reference point, but obviously unsatisfactory performance should not be elevated to benchmark standards for the sake of avoiding ‘a bad report’.

A similar response must be given to concerns expressed about the need to recognise that a Court’s performance may be affected by a whole range of factors that it cannot control. Quite so. The first — and generally only — consequence for a Court that is not meeting its performance standards is that it should investigate and explain. If its performance is being affected by factors beyond its control, it is important that this should be explained. If there is something the Court can do about its predicament, surely it wants to know that too.

The Attendance Index (termed the 'Hearings Index' in the Discussion Paper) was the most novel of the proposed Model KPIs and, it was evident from the consultations, gave rise to the most concern.

Several Courts noted that their information systems did not capture the data required to produce this measure. (Indeed, a number suggested that they might have difficulty accessing all of the data required for other measures on their information systems.) This it must be acknowledged is a serious practical problem, but one which can, however, be addressed by upgrading information systems, assuming a commitment is made to adopting the Attendance Index as a performance measure.

There was some concern about the difficulty of arriving at an appropriate benchmark, and this concern was accentuated by a perception that the particular characteristics of individual or classes of cases result in considerable variability in the number of hearings required. These concerns strongly parallel the concerns expressed about time standards, before these became a familiar feature of court administration, and in many respects the answers to them are the same.

A time standard like ‘90% of cases within 12 months and 100% within two years’ effectively defines an acceptable bracket around the ‘tail’ of the distribution of finalisation times for all cases. In principle, exactly the same can be done for the number of attendances at court involved in cases before they are finalised. The fact that many cases might settle after only one hearing, or even none, while others might involve 10 including a trial, should not be seen as an insuperable barrier to setting standards.

The position is no different in relation to finalisation times — some cases may resolve themselves in only a few days or weeks, and some may take years. Just as it is possible to set a norm for most cases (e.g. ‘12 months for 90%’) and a boundary on what can be considered acceptable even for the exceptional cases (e.g. ‘and in no event more than two years’) it is surely possible to choose the number of ‘trips to the Courthouse’ within which most cases ought to be resolved, and an ‘outside’ standard beyond which, even allowing for the ‘odd’ cases, one would say “That’s too many!”.

As with time standards, the actual standards set should be informed by an assessment of what the Court’s process requires, a critical evaluation of experience and, ultimately, a value judgement about how many times it should be necessary for reasonably earnest claimants to attend the Court to get a resolution of their disputes.

Finally, a few of the comments received appeared to accept the idea of an Attendance Index but objected to the suggestion that hearings which required the parties to attend, but were adjourned, should be included in the count. This objection is based on a view that, as adjournments are ‘caused by the parties and not by the Court’ they are not ‘an indicator of the Court’s performance’. (The same objection was not raised in relation to hearings which are re-scheduled when cases are ‘not reached’ by the Court.)

Of course there are many circumstances — some beyond the control of the Court, and indeed the parties — where an adjournment should be granted in the interests of justice, and it would be improper to refuse. Concern, however, over monitoring the frequency of adjournments may be unduly defensive. Nor does it accord with ‘best practice’ in modern court management.

The same point about ‘not our fault’ could be made (and was made) about delay and time standards. The answer is that performance measurement is not about blame. It does, however, involve acceptance by the Court of some management responsibility for the efficiency of its processes. And it is, in fact, well-accepted that the adjournment rate is something which the Court can ‘control’ through efficient management — Courts which experience high adjournment rates typically have more general problems of listing integrity and efficient resource utilisation.

Adjournments will be necessary and will occur. But it is appropriate to establish some sort of benchmark for an acceptable level of occurrence. This can be incorporated into the standard established by the Attendance Index.

It may well be that some of the concern about the Attendance Index should be attributed to its novelty and unfamiliarity. In that event, a very good suggestion received for handling the data collection problem in the short-term (pending IT system improvements) may also address this concern. This suggestion is that Courts could report monthly on the frequency distribution of the number of ‘appointments’ in cases finalised during the month. This data would be comparatively easy to collect manually, although in ‘high volume’ jurisdictions it would perhaps be necessary to base the statistics on a sample rather than the whole population of finalised cases. The additional advantage of this approach is that it does not require reporting against a ‘performance standard’ and it would allow the Courts to develop a ‘feel’ for what is actually going on in their cases, before resolving on an appropriate standard.