Speech by Anne Britton at the Personal Injury Commission Two Year Anniversary

Personal Injury Commission Two Year Celebration

Speech delivered by Anne Britton, Chair of the Council of Australasian Tribunals

Wednesday 1 March 2023

I commence by acknowledging the traditional custodians of the land where we meet today. The Gadigal people of the Eora nation and pay my respects to their elders, past, present and emerging.

Was, is, and always will be, Aboriginal land.

I’m honoured to be invited to speak today at the celebration of the Personal Injury Commission’s second anniversary.

At the very best of times, the task of merging individual tribunals is difficult. Each tribunal will bring to the merger, different IT and administrative systems, different enabling legislation, different procedural rules, and importantly different member and staff cultures. The Commission is no exception.

Add to those challenges, a pandemic with no apparent end in sight, at least for part of it, and you have the potential for a perfect storm. However, on any measure, unlike many courts and tribunals throughout Australia and New Zealand, the Commission has weathered that storm, and weathered it extremely well. I won’t repeat the figures, which President Phillips touched upon in his presentation, but those figures are, on any measure, extremely impressive.

Those figures reveal that the Commission has managed to avoid the COVID induced backlogs that now plague many Australasian courts and tribunals. The Commission’s modest backlog caused by the inability to conduct in-person medical assessments during part of the Sydney lock down, may keep President Phillips awake at night but it is a backlog that is the envy of those leaders of tribunals and courts managing backlogs with no end in sight.

So, are there any lessons from the pandemic that can be applied to designing and redesigning the tribunal of the future or to use the language of COAT’s Tribunal Excellence framework: to promote excellence in tribunals?

And in posing that question I acknowledge that the effects of the pandemic were uneven. Some courts and tribunals were particularly hard hit.

For example, it is unremarkable that courts and tribunals based in the unkindly dubbed “hermit kingdom” of West Australia, fared far better than their colleagues in the east.

Equally, it’s unremarkable that some courts and tribunals in Victoria, the state which suffered the longest period of lock down of any Australian state and territory, emerged from the pandemic, largely, with crushing backlogs.

It is also unremarkable that in some jurisdictions business as usual without breaching social distancing rules, was impossible. For example, Jury trials, hearings required to be held in forensic hospitals, or in the Commission’s case, conducting physical medical assessments.

Those factors explain in part, why some courts and tribunals have fared better than others. But I make these additional observations.

First, those courts and tribunals, such as the Commission, which before the pandemic, had put in place or made significant moves to put in place, case management systems which enabled parties to engage electronically and to participate in hearings remotely, fared particularly well. I count the Commission on that list.

Second, those courts and tribunals whose leaders took an active interest in reviewing and assessing the quality of remote hearings, fared better than those whose leaders who largely left that task to their IT departments.

Justice Tony Payne of the NSW Court of Appeal in an address to last year’s NCAT conference recounted an amusing tale.

At the start of the first lock down, there was a disturbing pattern of dropouts in remote hearings conducted by the Court occurring at about 10.15am. After a series of polite enquiries and meetings, the Court was told by Justice IT that the problem was caused by the NSW Justice having an insufficient number of licenses to accommodate the number of participants attempting to log into hearings. Further polite enquiries revealed that that was not the case: even on a very busy sitting day the number of court users was less than the number of available licences.

Why then did the problem persist? Further polite enquiries and meetings with Justice IT, revealed that the IT system registered Court users who had been logged on the previous day as still being logged on, which meant that the number of users exceeded the number of available licenses, causing the system to crash

Solution: someone in Justice IT needed to push the reset problem. Reset button found. Problem solved!

At the start of the second lock down the all too familiar 10:15 am dropout re occurred. Surely, this time the problem could not be attributable to the reset button. Wrong! The person at IT central whose job it had been in the first lockdown to push the reset button every night had left and forgotten to tell anybody where the button was. Happily, the button was located and the system again worked very well.

Unfortunately, the problems faced by many courts and tribunals were not as easily solved as those which faced the NSW Supreme Court. However, those courts and tribunals whose leaders were willing and able to engage with their IT teams were able to solve the problems they confronted.

Again, the Commission appears on that list.

Third, an engaged leadership and a skilled IT department only gets you so far. You can’t make a silk purse out of a sow’s ear. Tribunals and courts who were not provided with adequate funding to invest in remote hearing technology and electronic filing struggled throughout the pandemic and will continue to do so into the future.

Fourth, those courts and tribunals who turned their mind to whether their electronic filing and hearing systems were user friendly, and engaged with and sought to address the legitimate concerns of their users, unsurprisingly fared better than those that failed to do so.

The Commission is to be commended for its efforts in working with its users and assisting them to work in a new and unfamiliar environment.

A key lesson of the pandemic is the self-evident proposition that technology matters. Tribunals can no longer afford to be slow to embrace the advancements which enable hearings to be conducted remotely and parties to engage with them electronically. And for this to occur tribunals and courts must be adequately funded to embrace these advancements.

Clever and effective use of technology enabled tribunals such as the Commission to continue to be accessible to the people they were established to serve throughout the pandemic. And if I could just make this reflection – Judge Phillips said I’m someone who’s got a pretty good overview of how most tribunals in Australia and New Zealand operate. That’s probably slightly overstating it, but I am able  to look behind the glossy annual reports and see what really happens.

And what is apparent in terms of technology the Commission is far more advanced than many tribunals and courts.

However, as everyone here knows, technology only can achieve so much. The Commission would not have been able to continue to serve its user were it not for the effort, tenacity and commitment of its staff and Members. We are not automatons – working through the pandemic posed numerous challenges for many people, including people working in tribunal: home-schooling, caring for elderly and vulnerable relatives and friends, isolation from family and friends. And especially before the hope offered by vaccines, concern for our own personal health and that of family and friends.

Without the commitment and resilience of members and staff, the figures about which the Commissions can now so proudly boast would undoubtedly have been very different.

Congratulations on what you have achieved in the past two years.

On behalf of COAT, I wish you all the best.

Thank you.