Handbook for Judicial Officers — Relationship with legal profession, bullying and sexual harassment

Chief Justice Tom Bathurst, who has been President of the NSW Judicial Commission, stated:

Psychological health in the workplace is well recognised as a desirable outcome across society. The topic of judicial bullying, that is by and against judges, has been a topic of discussion over some years. There are differing views about it and how best to achieve a definitive answer to the problem.

Bullying in the courtroom is not just about judicial officers’ behaviour.

Bad behaviour in the courtroom can involve a number of relationships — lawyer v lawyer; lawyer v client; lawyer v witness; lawyer v judge; and judge v any of the above.^[4]

One can understand how judges can have their patience tried by rude litigants, ill-prepared or impunctual practitioners, or practitioners engaged in bullying behaviour themselves. Some lawyers can be infuriating. To set a better tone in the courtroom, cross-examination needs to be conducted in a more civilised manner than what has been the robust approach in the past. Cross-examiners who shout at or abuse witnesses should be stopped by the judicial officer acting as a true umpire. Many practitioners, once they set foot in the courtroom, seem to have a bad case of “white line fever” common in the sporting arena. Some regard cross-examination as the last of the legal blood sports.

Counsel who have high-conflict personalities may infect the whole process who in turn may become judicial officers with high-conflict personalities. One can understand that in a busy courtroom and in difficult cases tempers can get frayed. Stress in our work and in the courtroom is necessary and can assist to get the work done efficiently. However, one needs to learn and note the signs when stress turns to distress. Too much work with poor administrative assistance affects many in our profession. Many courts have been squeezed by governmental budget restraints. In many courts more cases have been tried by less judges, as judges and advocates we must, like everyone else, demand safer workplaces. We must treat each other better and with dignity. Litigation should not be another form of unarmed combat.^[5]

The former High Court Justice and former President of the NSW Court of Appeal, Justice Michael Kirby, has been a long-term believer in better curial manners and psychologically safer courtrooms. In an address to the Supreme Court and Federal Court Judges’ conference in Brisbane in January of 1997, Kirby raised the idea of judicial stress. He asked whether it was a sign of a growing open-mindedness of the Australian judiciary, that is, a willingness to tackle this formerly unmentionable topic. He gave a number of examples from the United States where judges had suffered nervous breakdowns, or worse, in connection with the stress of work that they were performing.^[6] He gave an example of a judge in Los Angeles who was severely and publicly censured by the Californian Judicial Commission:

He also gave the example of the former Chief Justice of New York State, Sol Wachtler, who was convicted and imprisoned in 1992 for alleging harassing his ex-lover, including by threatening to kidnap her daughter and demanding $20,000.00 and for sending a condom in the mail to the girl.

We have had own problems in NSW in my career with judicial shenanigans such as the District Court judge in the late 1980s found wandering incoherently in the Hospital Road court precinct, late at night, without his pants on; a Supreme Court judge who could not deliver a decision and a Federal Court judge who swore a false statutory declaration about running a traffic light.

Kirby asked whether such egregious behaviour could be linked to an impact of stress upon members of an over-stressed profession?^[7] His Honour noted that some of the stress involved in being a judge these days related to “crushing caseloads, novel and complex legal issues, increasing and critical, media scrutiny with relatively few voices lifted to defend Australia’s judges.”^[8]

In addition to this, there are long hours at work, pressures to perform in public and high expectations which now coincided with repeated attacks upon the judicial status which calls into the question the idealism and the past perceptions of it still generally held by the holders (of such office). The kinds of people who get appointed to judicial offices are, or tend to be, perfectionistic. They have high expectations of themselves and others; they are worriers — conscientious people who represent the classical profile of stress-prone individuals. They have to make decisions and cannot or should not delegate very many.^[9]

Kirby also recounted bullying or poor behaviour of judge v judge. This was particularly so in the Sir John Latham High Court of which Sir Hayden Starke was a member. Kirby referred to what was stated by Justice Kim Santow of the NSW Supreme Court in an article entitled “Transition to the Bench”. Santow recounted a passage from a biographical portrait of Sir Owen Dixon, written by Grant Anderson:^[10]

In fact, at another funeral of High Court Judge, Sir Isaac Isaacs, Sir Garfield Barwick recalled an open grave ceremony held on one of the hottest day that Melbourne could record. As his erstwhile brothers filed past the open grave, Starke leant forward to his colleague and octogenarian, Sir George Rich, and asked “George are you sure it’s worth your while to go home”.

Justice Kirby’s article about the stressors experienced by judges, was not received kindly by some of his fellow judges. In an article in the same volume of the Australian Law Journal, Thomas J from the Supreme Court of Queensland took umbrage at judges appearing to regard themselves as victims and looking for sympathy. Justice Thomas’s view was that judges should be able to look after themselves and should not tap into the stress bandwagon.^[11] Justice Thomas said the whole nature of the job is stressful and there is a constant pressure to get things right. His view was “You need adrenaline, or pressure, to produce your best work”.

Some of the reasons which stirred up judges he said were half-baked submissions from counsel, about which he said:

He also referred to the pressure to get out unreserved judgments. He said that it was better merely to ask for more time to handle current reserved judgments but the truth was that vanity stops people doing it.

Curiously, Thomas J said another reason for stress by judges was the thought of how much money counsel was making, especially when they are not doing a very good job. He said: “You only hurt yourself when you think about it”.^[12] (Envy is one of the seven deadly sins.) Justice Thomas accepted that there was overload of work; however the risk of job loss outside the judiciary is a grave additional stress factor from which judges were immune because of security of tenure and the conditions of their office.

Justice Thomas suggested that the examples given by Kirby J of poor US judicial behaviour had more to do with character than stress, and he rejected the accepted dogma that judicial stress was some form of “black robe fever”.^[13] His suggestions as to how to overcome judicial stress were summed up as follows:^[14]

Justice Kirby exercised a right of reply to Thomas J’s denial of stress in judicial life.^[15] He rejected the comment of Thomas J that judges who complained about stress were just nothing more than “whingers”. He said he was inclined to agree with the comment made by Handley J to the effect that when judges think about the lives of advocates they realise that in the stress business they are better off on the Bench.^[16] It was also noted that when his paper was delivered there was an attempt to laugh it off, whereas some judges urged their colleagues to play more golf as relief, others recognised that some of the work imposed special burdens, such as sentencing convicted prisoners which was a very stressful aspect of judicial life. Justice Cohen suggested that stress may be something we see in others but deny in ourselves. To this, Kirby J said:^[17]

Some years later, the idea of judicial stress and judicial bullying was further advanced by Kirby J in a lecture he gave to the National Wellness for Law Forum, at Melbourne University Law School, on 21 February 2013. His paper was reproduced in the Australian Law Journal. He stated this:^[18]

As it has already been stated here, the judiciary’s work involves an inescapable component of stress. Urgent, complex matters, elements of high drama, long criminal trials, civil cases worth millions of dollars, people’s livelihoods, cases involving access and custody of children and the like necessarily produce stress in all concerned. Justice Kirby acknowledged:^[19]

He noted that, by and large, the legal profession gets to know judges who are unsuitable to judicial office either because of intellect, or lack of judgment or temperament.^[20]

A similar comment was echoed in a paper given by Justice Glenn Martin of the Queensland Supreme Court at the National Judicial College Seminar, Managing People in Court conference in February 2013. He said this:^[21]

An alternative view was offered by the then editor of the Australian Law Journal, Acting Justice Peter Young AO, who responded to the Managing People in Court conference papers. He stated:^[22]

He went on to say this:^[23]

He resented barristers being paid thousands of dollars for a brief which showed very poor preparation. The editor then went on to quote the case of a senior clergyman. He said this:^[24]

Justice Young was careful also to note there is a serious problem for 21st century advocates shown by the rates of suicide and mental breakdown of lawyers. His dystopian response was:^[25]

It may be that some people are robust and can cope with criticism, whereas others at a particular moment in their lives may not have that same resilience. Not every advocate is as resilient as Sir Robert Menzies as recorded in his memoirs when he was appearing in the High Court before Sir Hayden Starke:^[26]

Turning back to the paper given by Justice Glenn Martin at the Managing People in Court conference, Justice Martin referred to an event where he was the President of the Queensland Bar Association, where junior counsel was greeted with this comment by the judge, “You’re an idiot. Does your client know you’re an idiot?” The barrister came to see him. The junior barrister was anxious that the judge not become aware of his complaint because he appeared frequently in that jurisdiction. What could be done in such circumstances?^[27]

In the same conference, Associate Professor Anthony Foley, with the Australian National University College of Law, recounted a project conducted by his colleagues which followed a group of young lawyers through their first 12 to 18 months of practice. They were asked how they fared in the first year. He said this:^[28]

Associate Professor Foley went on to say:^[29]

I suggest that employers of legal practitioners have a responsibility to make sure that young lawyers are ready to go to court. That obligation requires that new lawyers are given sufficient training and support to appear in court with confidence and with mechanisms to overcome their natural anxiety. They should only be given court appearances commensurate with their experience and skill. The potential for the insidious nature of psychological illness and injury needs to be acknowledged. The legal test as to whether an event can cause psychological injury is undemanding. In State Transit Authority of NSW v Chemler,^[30] Spigelman CJ said that employers take their employees as they find them. There is an “egg-shell psyche” principle which is equivalent to the “egg-shell skull” principle.^[31]

In the same case, Basten J said that where events actually occurred in the workplace, if perceived by the victim as creating an offensive or hostile working environment and psychological injury followed, it is open to conclude that causation is established.^[32]

In recent years, there has been some unfortunate examples where causation between stress in the courtroom and psychological injury, including suicide, has been broadly established. Back in 2010, the Sydney Morning Herald^[33] reported that the Western Australian government was seeking legal advice about accusations that a young lawyer who was bullied by a magistrate as a consequence committed suicide. It was reported that:

The NSW Director of Public Prosecutions, in 2013, circulated a memo to all Crown prosecutors and solicitors warning them to stop bullying one another or face disciplinary action. This was in the context that the previous six months two lawyers from the DPP had committed suicide.^[34] The article reporting on the DPP memo noted what Kirby had said about judicial bullying at the National Wellness for Law Forum when he said this:^[35]

In the same article, Mark Tedeschi QC, Senior Crown Prosecutor, said that Kirby was absolutely right and that the belittling by judges was the greatest source of stress faced by advocates. He said this:^[36]

I know for a fact that the last few years a number of barristers from the NSW Bar have committed suicide. Whether or not those suicides are linked to stress, it certainly is a reflection that the emotional health of members of the Bar is less than ideal, keeping in mind the small number of barristers compared to the greater population. The Bar Association has established BarCare which provides for confidential psychological counselling for barristers facing psychological illness.^[37] Also there is the Tristan Jepson Memorial Foundation established a few years ago, which provides wellbeing best practice guidelines for the legal profession.^[38]

In a foreword to the guidelines, the former Chairperson of the Foundation of the Honourable Keith Mason, said this:^[39]

The guidelines established by the Foundation are:^[40]

Of course, judges themselves can be bullied by barristers. Judicial officers in such circumstances should be careful not to respond in kind to the contrived provocations of more flamboyant and aggressive members of the Bar. In Escobar v Spindaleri^[41] was a case which caused concern before the Court of Appeal. The short facts were that at the conclusion of the claimant’s case in the Workers Compensation Court, the court invited further evidence from counsel, who then declined to call any. When the court then warned counsel that the claim might be dismissed, counsel told the judge, “You can do what you like”. The judge then dismissed the application.

In relation to that appeal, Justice Kirby said:^[42]

Counsel’s response was described as intemperate, discourteous and ill-considered. Merely by using the formula of “Your Honour”, it did not demonstrate the courtesy to the office which the judicial officer was holding.^[43] His Honour went on to say:^[44]

In another example, Barakat v Goritas (No 2)^[45] the judge had described senior counsel’s submissions as somewhat tendentious, to which counsel replied:^[46]

In dealing with the appeal point that there was a reasonable apprehension of bias, the Court of Appeal said this:^[47]

Unfortunately as recounted in the appeal decision the trial then entered the twilight zone. A further more detailed account of the exchange between counsel and the judge is reproduced at [51]. Suffice it to say, the judge asked counsel not to interrupt him. Counsel asked the judge not to raise his voice. The judge told counsel to sit down. Counsel refused and demanded procedural fairness. The judge said counsel was being impudent. The judge ordered counsel to leave the court. Counsel refused. The judge summoned the court officer. Counsel told his Honour that he had “gone far too far”. The judge then asked counsel to apologise. He said he would apologise if he could make his submissions. The judge denied having said that. Counsel disagreed with him. The judge said he was not going to have an argument. The judge said this:^[48]

Counsel refused to apologise. The judge asked counsel to stop over-talking him. Counsel apologised for interrupting and then he said “Can I renew my application?” to which the judge said “I will consider it in due course.” Counsel thanked the judge for being “very generous”. The judge replied “Nor do I appreciate your irony. Your conduct is disgraceful.”^[49] At that point, the sheriff’s officers appeared in court and were asked to stay.

The court said in such instances tendering of the transcript and the recording, and if necessary the closed circuit television recording of the hearing would be of benefit in order to make up for the deficiencies which may not be immediately evident by reading the transcript.^[50]

These two examples of Escobar v Spindaleri and Barakat v Goritas (No 2) show that in circumstances judges can be subject to bullying. In such circumstances there need to be mechanisms put in place to alleviate the stress and to de-brief a judicial officer from the shock of such behaviour by advocates in court.