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When the ball in court proceedings is on the judge's side, i.e. the judge is taking their time to work out directions/decisions, and it takes too long — what legal recourse does the plaintiff or prosecutor have? Are there provisions in place that prevent negligent or corrupt judges from stalling proceedings without good reason? Are there timeframes that courts must observe?

If this question is too broad, let's scope it down to private prosecutions in New Zealand, specifically when a proposed prosecution is referred to the judge for a direction (s26(1)(b)). How long should a private prosecutor wait for the judge to come back with a direction before lodging a complaint to the Judicial Conduct Commissioner?

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In the High Court of New Zealand:

The judges of the High Court expect that 90% of decisions will be delivered within three (3) months of the last day of hearing or receipt of the last submission ... Where a litigant or a lawyer is concerned about a delay in the delivery of a reserved judgment in a case in which they have an interest, they may make an inquiry to the court manager of the court where the matter was heard.

But generally the High Court’s reserved decisions concern factually and legally complex disputes which the court resolves with detailed written reasons. A decision of the District Court under s 26(1)(b) seems much more straightforward. Rather than formally complaining about the fact that the decision has not already been made, it might be better just to politely ask the court registry when it is likely to be made.

You have answered the broader aspect of the question yourself – negligent or corrupt judges can be held to account by the Judicial Conduct Commissioner, which could theoretically result in the Commissioner recommending that the judge be removed by the Governor-General under (in the case of a District Court judge) section 29 of the District Court Act 2016. However, this has never happened.

  • "it might be better just to politely ask the court registry when it is likely to be made" I have been in polite contact with the court registrar — they're just saying that the judge hasn't returned the file yet. Apparently they can't chase the judge up, so all I can do is to wait and, if nothing happens within some period, complain. – Greendrake Oct 3 '18 at 5:21
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The availability varies by jurisdiction, but the general mechanism would be a writ of procedendo:

A writ which issued out of the common-law jurisdiction of the court of chancery, when judges of any subordinate court delayed the parties, for that they would not give judgment either on the one side or on the other, when they ought so to do. In such a case, a writ of procedendo ad judicium was awarded, commanding the inferior court In the sovereign’s name to proceed to give judgment, but without specifying any particular judgment.

  • This sounds pretty archaic. Are you aware of any case in the last century where a writ of procedendo was issued to compel an inferior court to deliver a delayed judgment, rather than to remand a case which was previously the subject of a writ of certiorari or prohibition? – sjy Oct 2 '18 at 15:02
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    The bar for granting extraordinary writs is high, so it doesn't happen that frequently. Nonetheless, it's still attempted with some frequency. At least in the United States, I would say it's not archaic at all. Here's a successful one from June: casetext.com/case/… – bdb484 Oct 2 '18 at 15:53
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    Interesting! I've upvoted your answer. It seems that the continued use of this writ is peculiar to the US, although it comes from the common law. In Archbold's Practice of the Court of Queen's Bench (8th ed, 1847) at p 1156, it appears that the writ was only available 'if the cause has been removed when it ought not to have been.' When this text was cited in argument in the High Court of Australia in 2008, the writ was called 'quaint' and 'interesting historically.' – sjy Oct 2 '18 at 22:39
  • Crazy. I see it used all the time here, so it's weird to hear other jurisdictions treating it like a footnote. – bdb484 Oct 3 '18 at 1:51
  • Why is it needed so frequently? Here in Australia, prerogative writs (or statutory judicial review orders, which are basically the same thing with less Latin) are still issued, but not for this purpose. If the court is just backlogged then commencing proceedings in a superior court (which take months to resolve) is unlikely to help. If the judge is failing to do their job due to incompetence or malice, that would be a matter for the chief judge/justice or judicial complaints commission, not a court of review which is concerned with legal error. – sjy Oct 3 '18 at 4:39

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