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History of the District Court of Western Australia
History of the District Court
of Western Australia
By Chief Judge Julie Wager
Caption
Until 1 April 1970 Western Australia had a two-tiered judicial system comprised of the Supreme Court and the Court of Petty Sessions and the Local Court for civil matters.
By the 1960s politicians and lawyers recognised that a third tier, an intermediate court of record, was urgently needed. At that time the Supreme Court had jurisdiction in respect of all civil matters, however Local Courts had a very limited jurisdiction. They could only determine actions for awards not exceeding the sum of $1000 and could not hear certain specified causes of action.1 Apart from its very limited jurisdiction it was noted in 19682 that at least for the South and North (being north of Geraldton) civil matters received very little attention from police magistrates and a number of police magistrates were not competent to handle the matters arising. The work of the Local Courts was placed at the bottom of some magistrates’ lists which resulted in the civil cases listed for hearing either not being heard, or, if they were heard, being allocated insufficient time to have the court consider them.3 An additional concern was that the Supreme Court did not consider regional matters because Supreme Court civil matters had to be dealt with in Perth requiring witnesses from the regions to travel. Some matters that should have proceeded were precluded from being heard because of these logistical difficulties.4 The need to address these issues became even more apparent when the population increased and the mining boom of the 1960s started. The introduction of an intermediate court of record for the whole of Western Australia was driven by the then Minister for Industrial Development, Mr Charles Court (later Premier of Western Australia from 1974 to 1982), who introduced the District Court of Western Australia Bill 1969 on 8 October 1969. The Second Reading Speech in Council was presented by the then Minister for Justice, Mr AJ Griffith.5 The speech provides details of the history of Western Australian courts and a summary of the support from the legal profession for the introduction of a District Court. Notably, the Bill received bipartisan support, the only issue being the selection of the name of the court. In the Second Reading debate, Mr T.D Evans, on behalf of the then Opposition, stated:6 The only criticism I can level at the measure is in using the term “The District Court” when, in fact, the jurisdiction of the court will be co-extensive with the State as a whole. The name “district” suggests that possibly there will be tightly drawn, compact areas in which courts will
Above: The first entry in the Government Gazette in 1970 exercise this co-extensive jurisdiction; but, in fact, this is not so. Mr Court’s response was that:7 Whilst one might argue about the name – and we could argue about it until kingdom come – I think the choice of the word “district” is not a bad one. It has only one disadvantage inasmuch as it does give the impression it is related to a particular part of this State, when the emphasis is really on the fact that it is a court of the State for the State.
However, when we consider the three tiers we will now have – Local Court, District Court, and Supreme Court – we will realise that before long the system will settle down nicely and everyone will understand thoroughly what is meant.
Records held by the Law Society of Western Australia (Law Society) also noted the profession’s support. As early as 1956 its members had considered the desirability of setting up an intermediate court.
A Law Society correspondence from 1967 records that the introduction of a District Court was formally raised by Mr William Pidgeon at a meeting of the Council of the Society. Council resolved to establish a sub-committee convened by Mr Peter Brinsden with members, Mr William Pidgeon, Mr HS Lodge, Mr Edward Franklyn and Mr Desmond Heenan.8
The sub-committee report strongly favoured the introduction of a District Court for the whole of Western Australia and recommended that the then Chief Justice of Western Australia, Sir Albert Wolff KCMG be consulted as it was understood that his Honour was investigating the introduction of an intermediate court for the north of Western Australia only. The sub-committee also recommended that District Court judges preside in Perth to avoid the disadvantages of isolation. The report noted that District Court judges should be based in Perth because this would increase the number of selections likely to entertain appointment. This recommendation was ultimately adopted and saw two of the subcommittee members appointed to be part of the inaugural Court becoming his Honour Judge Pidgeon and his Honour Judge Heenan of the District Court.
Establishment and initial jurisdiction
The District Court commenced on 1 April 1970 following Parliamentary proclamation of the District Court of Western Australia Act 1969 on 26 March 1970.
Section 50 of the Act set out the Court’s civil jurisdiction as being the exercise of all the powers and authorities of the Supreme Court in relation to specified actions, however the value of damages sought was to be not more than $6,000.9 Section 42 of the Act provided the District Court with all judicial powers that the Supreme Court had in respect of criminal indictable offences where the maximum term of imprisonment that could be imposed did not exceed 14 years. The Court presently has criminal jurisdiction in respect of all indictable offences, including offences that carry a maximum penalty of life imprisonment, except for homicide.
District Court Judges
The District Court commenced with four judges initially sitting in the Old Supreme Court building and moving to the Public Trust Building in 1971. His Honour Sydney Howard Good QC was appointed Chairman of Judges (the position now known as Chief Judge). He had been Solicitor-General and Chairman of the Third Party Claims Tribunal before the Tribunal was abolished in July 1967. William Page Pidgeon AO, Desmond Charles Heenan and Robert Edmund Jones were appointed judges of the Court. Syd Johnson was the first Registrar of the Court. Over the past 50 years, 90 judges have served as members of the Court. The number of sitting judges is presently 33, 15 of whom are women, with two judges appointed Deputy Presidents of the State Administrative Tribunal and one judge appointed President of the Children’s Court of Western Australia. On 7 April 1970 Judge Pidgeon was the first judge to sentence following criminal conviction in the District Court. Mr RF Cannon was defence counsel. The first calendar of prisoners tried in the District Court at Perth notes in respect of indictment 1 of 1970 a conviction of breaking and entering. A sentence of 2 years’ probation with the supervising court being Dalwallinu was imposed. Special conditions were that the offender make restitution in the amount of $7 and pay the cost of restoration of damage caused to the extent assessed by his probation officer. On that first sentencing day his Honour imposed non-custodial penalties for 9 of the 10 offenders, all of whom were convicted of breaking, entering and stealing. The only term of immediate imprisonment imposed on that day was in respect of an offence of indecent dealing with a girl under the age of 13 years for which a 3 year term of imprisonment requiring a minimum term of 12 months to be served before the offender became eligible for parole was imposed.
His Honour Chief Judge Desmond Heenan 1982-1995
Desmond Heenan has been the longest serving Chief Judge holding the position for 13 years until his appointment to the Supreme Court in 1995. The Court experienced many changes and a significant increase in the number of criminal indictments over the 13 year period welcoming the move to the Central Law Courts, considered the ultimate in court facilities in 1982. As Chief Judge, Desmond Heenan introduced procedural management for criminal matters that included the introduction of Status Conferences in order to encourage early disposition of criminal matters and a “fast track” committal procedure for early pleas of guilty that was later supported by legislation.10 Chief Judge Heenan also introduced the practice of overlisting criminal trials that was then known as stand-by trials. A stand-by trial was substituted at short notice for a trial that did not proceed on the allocated dates. It proved to be an unpopular initiative with the profession. In 1992 amendments were made to the Evidence Act 1906 (WA) to better facilitate the giving of evidence by children and
The 25th Anniversary of the District Court
other vulnerable witnesses following a report published by The Law Reform Commission of Western Australia in 1991.11
The reforms included the provision of a support person for children and special witnesses giving evidence in court and the recognition that young and vulnerable complainants were reluctant to come forward by reason of the ordeal of giving evidence in open court and because of their fear of having to face the person they claimed to be the offender.
Desmond Heenan was Chief Judge when her Honour Antoinette Kennedy AO, the first woman to be appointed as a judge of the District Court, was appointed in 1985. Her Honour was also the first District Court judge to employ a female associate, Ms Janene Howard who is now the Manager, Associates and Ushers. Until 1985 the only women employed in the District Court worked as secretaries.
His Honour Chief Judge Kevin Hammond 1995-2004
Kevin Hammond was the first Chief Judge appointed after the founding judges. The criminal jurisdiction of the District Court increased in 1996 when the jurisdiction in relation to sexual offences that had previously been heard in the Supreme Court moved to the District Court.12
Chief Judge Hammond chaired the “Hammond Committee”, the review committee established in 1996 to consider all aspects of remission and parole. The committee’s report led to substantial amendments to the Sentencing Act 1995 (WA), legislation that substantively changed the practice of criminal law in Western Australia. His Honour was a skilled and powerful communicator who encouraged early pleas and pragmatic resolution of criminal issues by offering a charismatic “carrot”, being a reduction in sentence. His Honour actively supported the introduction of therapeutic measures such as the Drug Court for District Court offenders. On his retirement Chief Judge Hammond was described by Judge Kennedy as:13 … [A]n erudite and lively member of the court. Most new judges during that time would attest to the fact that he had an uncanny knack of turning up just when you needed him. Just when a problem in a particular case became too difficult and there was nowhere to turn for assistance, his Honour would turn up with much common-sense and wise advice and was always willing to assist.
As Chief Judge, Antoinette Kennedy oversaw the development and implementation of a range of initiatives that improved the quality of justice for people appearing before the court and increased the efficiency of the court’s operations both in Perth and throughout the regions. By 2000 it had been recognised that the court had outgrown the Central Law Courts. In 2004 the State Government awarded the tender for the District Court building to Western Liberty Group. Construction began in 2005 and was completed in 2008. Senior Judge Paul Healy was actively involved from design through to completion, however sadly his Honour passed away just prior to completion. Chief Judge Kennedy oversaw the introduction of amendments to the Evidence Act 1906 that allowed the initial interview of a child by police to be visually recorded for later use in court as the evidence in chief of the child or as part thereof. The amendments expanded the automatic use of video links and other benefits to all children under 18 and extended the use of video links and pre-recording of evidence to adult complainants of serious sexual offences by mandatory special witnesses orders.14 Her Honour introduced new District Court Rules in 2005, greatly improving case management and shifting from a one size fits all to a system tailored to the needs of the court users. Her Honour also introduced the Civil Trial Preparation Project in 2007 that streamlined civil procedure and reduced the cost of litigation. Chief Judge Kennedy oversaw the introduction of the Integrated Court Management System (ICMS) in June 2003. ICMS replaced the previous case management system to facilitate real time and recording of case events and enabled the courts to develop the eLodgement system. The first writ to be lodged electronically was by the firm Trewin Norman & Co in February 2005. Chief Judge Kennedy implemented court management of the criminal list reducing the median time to trial from 74 weeks in 2004 to 21 weeks in 2009. Chief Judge Kennedy’s criminal management techniques are still followed in part by the Court in order to address delay. Despite taking a hard line with practitioners her Honour maintained a balanced and merciful approach when dealing with criminal accused and offenders.
Peter Martino oversaw regional circuit improvement which reduced delays to criminal trials for circuit matters. Chief Judge Martino introduced Sentence Mention Hearings before Registrars exercising criminal jurisdiction delegated to them following amendments to the Criminal Procedure Act 2004 in 2013 in order to streamline sentencing lists, avoid delays and avoid “judge shopping”. His Honour established a civil case management system for old cases that substantially reduced the number of cases on hand older than 12 months.
Chief Judge Martino oversaw the implementation of ICMS for the criminal jurisdiction and oversaw the introduction of appeals to the court under part two of the Workers’ Compensation and Injury and Management Act 1981 that had formerly been determined by the Commissioner of the Dispute Resolution Directorate, Workcover WA. Chief Judge Martino introduced the Trial Listing Certificates and Trial Listing Hearings requiring counsel to sign an undertaking that the trial was ready to proceed and that all pre-trial matters had been addressed. This initiative encouraged pre-trial directions hearings, agreement of evidence and conferral between parties.
His Honour Kevin Sleight 2015-202016
Kevin Sleight was the third Chief Judge appointed who had practiced predominantly in a regional location prior to appointment.17 His Honour oversaw the introduction and implementation of eFiling and eTrials in the civil jurisdiction. Chief Judge Sleight was a national leader in the introduction of the pre-recording of evidence and the provision of support for children and vulnerable witnesses in criminal matters.
His Honour also promulgated the consolidation of the Court’s Practice Directions and Circulars to Practitioners in both its civil and criminal jurisdiction. During a 5-year period Chief Judge Sleight managed an increase in criminal matters committed to the District Court of nearly 35%. That increase was in part due to the Court Jurisdiction Legislation Amendment Act 2018 that came into effect on 1 January 2019 giving the District Court an increased jurisdiction in non-homicide criminal matters that attracted a maximum penalty of life imprisonment. The District Court now deals with a substantial number of matters (such as arson and armed robbery) that were previously dealt with by the Supreme Court.18 Chief Judge Sleight encouraged judicial education and organised the first Aboriginal Cultural Awareness Program that saw judges being invited “on country” in the Kimberley. Chief Judge Sleight was the first Chief Judge to acknowledge the original custodians at formal sittings of the court.
2020 Onwards
The 50th Anniversary year has been an unpredictable one. The formal court sitting to mark the occasion that was to be held in April 2020 was cancelled due to COVID-19 lockdown measures. The 50th Anniversary Gala Dinner hosted by The Law Society of Western Australia was postponed from 4 April 2020 until 27 February 2021. The court has adopted COVID-19 measures to keep all court users safe.
Additional court room accommodation is urgently needed by both the District Court and the Supreme Court. Given the increase in the number of listed murder trials and their length and complexity the Supreme Court is presently sitting in the majority of larger court room spaces in the District Court building. This has compromised District Court trial listings. Regardless of the difficulties ahead, the judges and the staff of the District Court will ensure that justice continues to be done. My appointment as Chief Judge commenced on 2 May 2020. I leave it to future historians to reflect on the new normal period of 2020 and 2021 and to comment on its impact on the District Court of the future.
Endnotes
1 Local Courts could not hear and determine actions in ejectment, that involved the title to land or the validity of a devise, bequest or limitation under a will or settlement. The Local Court could not deal with libel or slander, seduction or breach of promise of marriage. 2 ‘District Court of Western Australia Twentieth Anniversary’ (1990) 17(2) Brief 8, 9. 3 Above n 2 Brief, 9. 4 Above n 2 Brief, 9. 5 Western Australia, Parliamentary Debates, Legislative Council, 16 October 1969, p 1580 (Mr AF Griffith, Minister for Justice). 6 Western Australia, Parliamentary Debates, Legislative Assembly, 14 October 1969, 1485 (Mr T.D Evans). 7 Above n 6, Parliamentary Debates, 14 October 1969, 1485 (Mr C Court, Minister for Industrial Development). 8 Peter Brinsden: Supreme Court Judge 1976-1990; William Pidgeon AO: appointed District Court Judge on 1 April 1970, Supreme Court Judge 1982-2001; Edward Franklyn: Supreme Court Judge 1984-1998; Desmond Heenan: appointed District Court Judge March 1970; Chief Judge from 1982; Supreme Court Judge 1995-2000. 9 The present limit is $750,000. 10 Criminal Procedure Act 2004 (WA) s 39(a) – (c). 11 Law Reform Commission of Western Australia, ‘Report on Evidence of Children and Other Vulnerable Witnesses, (1991). 12 Anderson JNR v Melville 2003 WASCA 12 [16-23]. 13 Her Honour Chief Judge Antoinette Kennedy, ‘Retirement of Kevin James Hammond’, (2007) Western Australian Bar Association Review 3(4). 14 Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004. 15 Supreme Court Judge from 2015-2018. 16 His Honour served as a Commissioner of the Supreme Court for five periods from 2011 until 2014. 17 William Pidgeon AO had been a partner at Slee Anderson Pidgeon in Bunbury. His Honour Kevin Hammond had been a partner at Mayberry Hammond in Northam. His Honour Kevin Sleight shared a very similar legal history having also been a partner at Mayberry Hammond in Northam prior to practising in Perth 5 years before appointment in 2005. 18 District Court of Western Australia Annual Review (2019).
