Our resident deputy district judge columnist discusses listing emergencies.
Every DDJ knows to expect emergency applications and that a sitting can take unexpected turns. I always ask the court for a copy of my list in advance, so I have an idea of what to prepare for and what notes to bring, but I am aware that it can all change. A trial can settle and one might spend the day doing boxwork or taking cases from other judge’s lists to ease their burden, or hearings are vacated, providing valuable time to draw breath and read other files. The days are always busy, there’s no such thing as a lunch hour and I’ve never even left the building for fresh air. That isn’t a complaint, I don’t expect time out, it just shows how busy a court day is and how much goes on behind the scenes.
There have been teething problems with centralised listing- with cases removed from the list or no parties turning up because notices haven’t been dispatched or in time. Cases often move between courts resulting in a mismatch between the files and/or the lists. The court staff has a lot to juggle in getting lists, papers and files in order. Then, on the day, judges have to deal with all eventualities and absorb large volumes of information, before making speedy decisions that are justified and sound.
I often think if I had more time, my judgments would be of greater quality, more considered, better expressed and maybe even different. But the harsh reality is that we don’t have time to dwell, or be perfect. We have to wade through huge amounts of work, with the objective of dealing with cases justly and proportionately and usually against the clock. We do not have the luxury of plentiful time.
Amongst all of this, an emergency application has to be slotted into the day somewhere. Usually an application for a without notice order will be put before a judge first to decide whether it should be heard on notice and how soon it needs to and can be heard. It is imperative that the application and supporting papers are in order. Often, the statement does not include explanation for why an order is sought ex parte so the applicant has to amend it and re-sign; or they want to add to it and rely on further detail at the hearing. If the order is based on evidence not contained in the statement, it has to be added, so respondents know all the allegations and evidence against them and can respond. With legal aid limitations, there are more applicants in person, so we are often presented with handwritten, informal, sometimes messy or scored out applications / statements. Provided the evidence is clear and they meet the statutory criteria that is fine, but this definitely makes the process longer as they don’t know or often don’t understand the procedure involved and need help. Court staff can help with the practicalities but obviously cannot advise and neither can the judge.
Recently, I have heard urgent Family Law Act, Children’s Act applications, and anti-social behavior (ASB) injunction applications For the ASB injunction, the applicant was the local authority and alleged that tenants engaged in anti-social behaviour, in one case at the property and in another at council offices, threatening staff. The latter are usually represented by counsel and there is bulky paperwork in the form of witness statements and authorities. With representation, the papers tend to be in better order. Another example is applications for suspension of possession warrants, where an eviction is due to be carried out that day or very soon and an occupant is urgently seeking a stay. Somehow these emergencies have to be heard between other cases and the court staff has the extra work involved in listing, sorting out papers for service and typing up the detailed orders required quickly. It is important that lawyers supply drafted orders and I would urge them to think carefully about whether a case is urgent enough to be without notice. Bear in mind that judges have to consider Whether on the evidence, it is just and if the urgency outweighs the general principle that both parties should be heard, should informal notice be given, and if short notice is required (remembering that time can be abridged for service)what exactly the emergency and risk is and to whom.
In one case, the risk identified was a child’s removal from the jurisdiction and I decided on the evidence, that an interim order prohibiting the non-residential parent, from doing something he should not do anyway (removing the child from the mother’s care without her consent) was necessary to maintain the status quo and protect the child, but listed immediately with both parties, so the respondent’s account could be heard. All emergencies raise concern, Childrens’Act and violence cases particularly, because of the risk of serious harm and often vulnerable parties or children to worry about. I often think about cases after my sitting. We have to make important decisions and, often draconian orders very quickly, knowing that the safety and welfare of a child may depend on it, while needing to be mindful of the relevant legislation, procedural rules and the need for justice to both parties. I am also always conscious of the fact that the rest of the day’s list is delayed and that the waiting room is full of litigants still waiting for their cases to be heard.
Like I said, it’s never a dull day.