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Chapter 6. Attendance index

It is probably fair to say that performance measurement related to workloads and timeliness is comparatively familiar and ‘comfortable’ territory for most Australian Courts. This is not true of measures of cost and efficiency. Despite the fact that virtually every known Court believes that the cost of litigation should be as low as possible, and the use of Court resources should be as efficient as possible, no known Court monitors the cost-effectiveness of its process. There are perhaps many reasons why this is so, but no doubt one must be that the data problems are practically insurmountable, if what is contemplated are direct measures of cost efficiency.

All Courts, however, do keep diaries of the occasions when the parties or their representatives are required to attend a hearing or other official ‘appointment’ at the Court,⁸ and this information can be used as an indirect measure of cost efficiency. The number of times the parties (or their representatives) attend at Court is probably the single, most easily captured datum which is highly correlated with public (i.e. Court) and private (i.e. litigant) cost.⁹ Moreover, well-established and widely accepted case management principles emphasise the goals of achieving early settlement of cases, and of ensuring that the parties and the Court seriously regard each scheduled hearing as an opportunity for disposing of the dispute. The Attendance Index¹⁰ is a directly relevant measure of performance in these terms.

The Index is the number of cases in the Court’s inventory in which there has been a given number or more of occasions — including any ‘appointment’ (however styled) which is adjourned or re-scheduled — requiring the parties’ attendance at the Court. The inclusion of hearings scheduled but adjourned adds an extra degree of refinement to the measure, since adjournments are known to be correlated with efficient resource utilisation.¹¹ The message is, once again, a simple one: ‘n of the Court’s pending cases have been to Court more times than they should have, without a resolution.’ Management attention can then be directed to the problem cases.

The Attendance Index is the cost measure parallel of the ‘timeliness’ index provided by the Backlog measure. As with measures of timeliness, it is necessary for a Court to adopt some standards for the number of times it should be necessary for the parties (or their representatives) to attend at the Court before their case is resolved. The standards adopted will depend on an appraisal of process requirements, experience, and, most of all, a normative assessment of what constitutes ‘acceptable’ performance.

To illustrate, we can imagine that the Intermediate Court of Figure 2 has a case management protocol for civil cases contemplating that cases can be dealt with after three hearings (an early ‘status conference’, a ‘directions hearing’ at or near the completion of all interlocutory steps, and an arbitration hearing or, alternatively, a trial). This protocol, then, suggests a starting point for fixing a norm — what can be, should be. While, however, the formal process suggests that most cases should be finalised after, at most, three hearings, experience and reason may indicate that some proportion of the Court’s cases should be expected to involve a greater number of attendances than the norm. The performance standard might then be set accordingly, as in ‘90% of cases should require no more than 3 attendances before finalisation (the norm), and 100% should be finalised after (say) 5 hearings (the boundary).’

The Attendance Index then, using this example, is the number of cases in the Court’s pending inventory which have had three or more, and five or more, appointments scheduled or held. (Once again it should be noted that the count includes adjournments, if they have required an attendance, because the Index is concerned with efficiency.)

In the Discussion Paper the example given was based on a single, rather than a ‘two-tiered’ or ‘split’ standard, and it was suggested that the number of cases exceeding the standard should be reported as a percentage of the Court’s pending caseload. It is apparent from the consultations that the circumstances of most Courts will be better provided for by two-tiered standards. It is also recommended that, again like Backlog, the Attendance Index should be reported in terms of both simple numbers and proportions, as this both enriches the information provided and makes the Court’s standards more transparent. The calculations are quite simple —

• Pending (>boundary) is simply the number of pending cases in which the number of appointments held or re-scheduled is equal to¹² or greater than the boundary standard (in our example, 5), and this is converted to a percentage of the pending caseload by dividing, of course, by the number of pending cases and multiplying by 100
• Pending (>norm) is the number of pending cases in which the number of appointments held or rescheduled is equal to or greater than the norm (again, in our example, 3), calculated as a percentage of the pending caseload in the usual way; this figure is compared with the proportion which may exceed the norm under the standard (10% in the example)
• Excess (>norm) is the number of cases more than the number fixed by the standard in which the appointments held or rescheduled may exceed the norm (in the example again, the number of cases, in excess of 10% of the pending caseload, in which there have been three or more attendances by the parties at Court).