“The selection of our judiciary is quaint. The community might reasonably expect that applicants demonstrate a capacity to write a decision prior to appointment. That doesn’t happen.” Legal columnist HUGH SELBY has some challenging ideas to speed up slow judgments.

This week Jeffrey Archer, British novelist, politician and jailbird, died aged 86. His final novel, Adam and Eve, is due to be published. It’s long.

Earlier this year Sir Anthony Mason, former chief justice of the High Court of Australia, died just short of 101. As late as 2020, so at age 94, he was publishing erudite legal articles in highly rated legal journals.

These men had a passion for communicating ideas, a passion that went much further than writing being just a job.

Luckily for both them and us neither was afflicted by writer’s block. That’s a condition that can affect any writer.

Joseph Mitchell, well known for his work in The New Yorker magazine between the ages of 30 and 56, then did nothing of significance for the next 32 years.

He came to work every day. He sat at his desk. He went out for lunch. “Sometimes”, as one of his colleagues recalled, “in the evening elevator, I heard him emit a small sigh, but he never complained, never explained”.

This year there has been some “naming and shaming” by a current judge of a few Australian judges who in recent years have taken far too long to deliver one or more decisions.

A quick internet search turns up judges in the UK, Canada and South Africa who have also taken many, many months, even years too long. 

The same search also failed to list other Australian judges known to this author who often took a year or more to bring down their decisions, much to the annoyance of the parties and other judges.

In this article any reference to “judge” should be taken to include any person who sits on a tribunal. They need to be kept to the same standards.

Sadly, the reported institutional response (when there is any response) to these examples of judicial non-performance is to be shaming and/or punitive, quaintly imagining that public humiliation is the best way to get work restarted.

That approach has all the finesse of after-school detention for those who failed to do their homework. It neither deters nor changes for the better the underlying problems.

It brings joy only to those who mix outrage with sadistic pleasure.

Selection of judges

Today’s judges must be able to write decisions. The days when both criminal and civil trials had juries give decisions with no reasons are long gone. 

Judgment writing requires up-to-date legal knowledge, the ability to sift and prioritise facts, organisation skills, and good writing craft.

The selection of our judiciary is quaint. The community might reasonably expect that applicants demonstrate a capacity to write a decision prior to appointment.

That doesn’t happen.

One way to achieve it is short-term “acting appointments”. Real-time performance is always better than interview performance.

And that explains why the occasional movement of a judge from one level to a higher one is a safe bet because there is proven performance.

Causes of decisions taking too long to deliver

The causes of delay in writing judgments are many and varied. Here is a list. They range across the demands of the task, personal factors, and environmental issues. There is some overlap. No doubt there are other causes, too: 

Number and complexity of legal and factual issues to resolve;

• Whether the decision is about a pre-trial, procedural or substantive hearing determination; 
• Length of the decision. There are judges, not many, with the capacity to write ‘book length’ decisions. A recent example is the 1600 pages by Justice Smith in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd & Ors [2026] WASC 101. There were 51 days of hearing in the second half of 2023, followed by written submissions from the parties between March 2024 and early February 2025. Hence the decision took 14 months to complete. Her Honour had an age-required retirement in 2024, but she was re-appointed so that she could finish the job. She did;
• Ability of support staff, such as research assistant, and judge’s associate to assist. This factor reflects not only the skills of those staff. It also reflects the judge’s capacity to make effective and appropriate use of those staff;
• Capacity of the judge to make relevant notes during the hearing and then interrogate the transcript;
• The intellectual limits of the judge;
• Familiarity of the judge with the factual and legal issues;
• Quality of the advocacy – spoken and written – from the competing parties. Good advocacy from both sides makes the decision task easier than when the judge is hindered by poor advocacy from one or both sides;
• The work pressures on the judge can cause delays, such as: whether matters are running back-to-back without a break; and whether all matters are demanding, rather than a mix of easy and more difficult.
• Personal factors are significant too, as the following reveal:
  • Native ability to reach a decision on the merits without anxiety;
  • Organisational strengths. A chronically disorganised lawyer is unlikely to become organised when given a judicial post;
  • Ability to perform across the range of tasks; for example, does the judicial officer have administrative responsibilities as well as hearings;
  • Burn out;
  • Consequences of trauma – bereavement, illness, accident, relationship breakdown;
  • Age related slowdown;
  • Tenacity, resolve, commitment; and,
  • Antipathy to the parties and/or their lawyers which is reflected by putting and keeping such cases at the bottom of the “to do” list.

Limited scope to deal with the problem

Given the certainty of recurrent complaints about decision delays, the absence of serious work to address the problem is striking, until we recognise the closed system within which the problem occurs. 

For so long as criticism of judges is framed within the traditional concepts of serious misconduct (which does not include tardiness in judgment writing) and maintenance of judicial independence, there is limited scope to deal with the problem.

We have to go back to October, 2018, to see the results of a study commissioned by the Australian Financial Review. It still makes for useful reading 

Indeed, the results of that study across 11,000 cases (covering a 10-year period) and 69 judges are so disturbing that this year’s criticisms by one sitting judge of around 10 of his past or present colleagues seem almost bland by comparison.

The average judge, with the assistance of a legal associate, secretarial staff and transcripts, took 6.3 weeks to issue a judgment after a hearing.

But more than half took more than a year to complete a judgment. 

How to fix the problem

Most of our judges are drawn from practising barristers. This is a profession that prides itself on individual achievement. Success and failure are personal.

There should be much more use of short-term acting appointments that “test out” an aspirant judge before they are appointed to a permanent position.

Managing others is not a skill commonly found in barristers, but it is a necessary skill for managing a contingent of judges in any court.

Managing non-performance is not a judicial matter. It is an HR matter requiring expertise from clinical psychology, team management, and industrial relations.

It should not be the role of a chief judge to be responsible for “curing” judicial non-performance.

Neither should the courts persist with requiring the parties to contact the non-performing judge to request “make haste”.

This traditional approach requires a joint approach which raises these questions: “If I expect to lose, why help the likely winner get there quicker”, and, “Will asking for speed after all these months help or hinder getting a result?”

The HR role in the courts should extend to:

• Close monitoring of pending decisions so that those overdue are followed up immediately;
• Requiring that delays be explained by the judge in writing; 
• Giving non-performing judges helping pathways to try to make them properly productive;
• Monitoring the results of the use of such pathways;
• Putting errant judges on fractional pay until they catch up; and,
• A finding of “unacceptable delays in finalising a decision” based on proper inquiry should be a specific ground for dismissal from a judicial post.  Such a finding may reflect one or more delayed decisions. 

Will anything change?

A changed approach to dealing with delays in judgment writing is necessary.  Past practices have not worked.

Respectfully, it is not appropriate for judges to be expected to criticise their tardy colleagues, let alone try to change behaviours.

Managing work performance is a job for professional HR. The courts need to employ the staff to do that job. Time to write decisions is just one aspect of work performance.

Head of jurisdictions around Australia need to agree on indicative time frames for decision writing.

Such time frames should be clear to any person being offered a judicial appointment.

Similarly, the process for managing non-performance should be uniform across all Australian courts and tribunals, well publicised, and efficiently and fairly implemented.

Where a judge is repeatedly tardy and fails to follow the guidelines, then the public interest requires that they voluntarily quit or they are removed from office.

Hugh Selby is a former barrister and CityNews legal affairs columnist.

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