Reflections on some facts of forensic life for those who hear and decide cases by a lawyer who has been hearing cases for thirty years and fighting them for nearly fifty years.
People are in conflict and need help. Your job is to help them by resolving the conflict. To do so, you will have to take authority over them by making decisions that bind them by the force of the law and the power of government. The sooner you do this, the better – for you and for them.
If any of that sounds odd or makes you queasy, you should not be in this job. Nor can it worry you that in most cases you will have to make decisions that can hurt people badly, and affect how they live. All that comes with the job, and if you don’t like it, don’t hang on to the job. (If you positively enjoy that part of the job, you may have a worse problem at the other end.)
It is not your job: to preen yourself or to ,to bung on side; to save your face or to seek to save your job; to seek to immunise yourself from review or appeal; to worry about either – at least if the worrying affects your ability to do your job; to seek to leave a legacy, or to build a monument to juristic science or literary grace; to boost your promotion prospects; to decline to carry your weight as a member of the team, by, say pleading the pressure of work in reserved judgments, or by knocking off early to play golf or pick up the kids from school; to grizzle about your workload or the miserliness of government – people are sick of all that buck-passing in politicians; to insist on doing one job, such as mediation, when you have been appointed to do another; to flaunt your power or to show your unease at its extent; to get snooty with those lower on the hierarchy or to get prickly with those who are higher; to mask any actual or felt shortcomings with pomp or ceremony or literary affectation; to be rude or overbearing; to fail to hold in check the prejudices that all flesh is heir to; to come to a decision based on your personal needs or wishes, or before giving a fair hearing to each side; to close your mind to further inquiry too soon, or, perhaps, at all; to forget that in our adversary system, the running should be left in the main to the parties and their lawyers – you are not an MC at a wedding, and you should intervene sparingly and reluctantly, and generally forebear from attempting wit (a besetting vice of mine); to forget that you are a servant of the people and not their master – even if your job gives you authority over some of them now and then; or to forget the wisdom of the maxim that the most important person in the courtroom is the loser.
Generally speaking, at least one party has to lose, and it is the judgment of this party on your handling of the case that you should look to – the winner commonly thinks that you are the greatest thing since King Solomon, ‘a second Daniel,’ as Rumpole exultantly intoned when the Old Bull got one right one day.
You should have the sense of vocation, learning, training, and hard experience with the law and people and the courts in action that will qualify you to do this job.
Hopefully, the sense of vocation is what got you into the law in the first place, and has not been entirely dimmed by the ups and downs of practice, the many bad falls and hits on the way, or by the tribute exacted by the tax man or the bank manager while you try to keep them in place while you put food on your table.
After you have learned the alphabet at university, how do you go about getting the training and hard experience to practise it at the bar or the bench? On the job. In any profession – perhaps in any human undertaking – teaching and book learning can only take you so far. The know-how that is applied in, say, cross-examining a witness, or deciding whether to cross-examine or to call a witness at all, only comes with practice, which here equals experience. Say fifteen to twenty years.
In the course of that time, you will have watched judges do your job, and you will have learned from them. You will learn from the whole range of them – from those who are so sure and safe that you could never hope to emulate them, to those who are so awful that you are determined to free the world of their like. In the course of your practice, you not only learn the hard way about fighting cases – you learn the techniques of hearing and deciding them, and with luck, you get to learn from the best, as well as the worst. You would certainly lack finish if you had only run into one kind and not all kinds.
There are two important strands to the education in the judicial college known as the bar. One is the sense that all litigation is a form of lottery – you can never know what might happen. Over time lawyers get a sense of the ‘merits’ of the case, but there is no guarantee that that sense will be shared by the judge or jury or the script-writer that we call Providence. The other is that if you start at the bottom and work up, you will be exposed to our community in all its colour, and layers, and you will have learned how to talk to all kinds of people and to try to break down the sense of mystery at one end and distrust at the other.
You will simply be unable to do any of this if you come from a more precious or sheltered background. You may not even know how silly it is to ask a former judge who has never been a trial judge to conduct a judicial inquiry into the affairs of trade unions when his Honour may not have met one trade unionist in his whole life. You may as well ask the President of the ACTU to compile a dossier on etiquette for the Melbourne Club.
What I am saying is I think reflected in what Churchill said about a P M who never fought an election, the Earl of Roseberry.
Whatever one may think about democratic government, it is just as well to have practical experience of its rough and slatternly foundations. No part of the education of a politician is more indispensable than the fighting of elections. Here you come in contact with all sorts of persons and every current of national life. You feel the Constitution at work in its primary processes. Dignity may suffer, the superfine gloss is soon worn away; nice particularisms and special private policies are scraped off; much has to be accepted with a shrug, a sigh or a smile; but any rate in the end one knows a good deal about what happens and why.
You can tell judges who have not been roughed up enough. They are out of their depth or all at sea, depending on your maritime preferences. Bad judges have narrow minds, often because they have not lived enough outside their own world. You can see it on the faces of some of them, or hear it when they open their mouth. Or when they look down on you as they bow.
The nature of the court
Being a judge is different to being a legislator (although at some levels a ruling or decision may have a similar effect), or conducting a government inquiry, like a Royal Commission.
Our system is not inquisitorial. It is adversarial. Subject to questions about who bears the onus of proof, and what the standard of proof is, the judges listen to the evidence and the arguments and rule in favour of the case they prefer. They are not generally purporting to record what happened as a matter of historical fact, but which side’s case seems more likely. On questions of fact in a civil case, anything better than 50/50 is enough. In the early ‘70’s, a magistrate named Bob Maloney when hearing crash and bash cases – motor car accidents –would at the conclusion of the evidence look at one counsel and say ‘on balance, I think his version might be just a bit more probable than yours – can you work out the appropriate orders?’ I wondered then, and now, whether any reasoning that was more evolved would be any more than window-dressing.
The legal historian, F W Maitland, put it this way:
The behaviour which is expected of a judge in different ages and by different systems of law seems to fluctuate between two poles. At one of these, the model is the conduct of the man of science who is making researches in his laboratory and will use all appropriate methods for the solution of problems and the discovery of truth. At the other stands the umpire of our English games, who is there, not in order that he may invent tests for the powers of the two sides, but simply to see that the rules of the game are observed. It is towards the second of these ideals that our English medieval procedure is strongly inclined. We are often reminded of the cricket match. The judges sit in court, not in order that they may discover the truth, but in order that they may answer the question ‘How’s that?’…..But even in a criminal cause, even when the King is prosecuting, the English judge will, if he can, play the umpire rather than the inquisitor’.
Nor need you be put off by the fact that Maitland was talking of the Middle Ages – the 14th century in fact – because the model still holds good.
It follows that an active participant in the fight at the bar has to make a transition to a passive participant watching the action from the bench. This transition does not look as simple as it did two generations ago. You do not see the same readiness to suppress the ego, and just watch the system take its course, but you do see judges now being more ready to lay down the law and impose their will than used to be the case. Somehow the unwritten fall-back that less is better got left behind, and we can now see some wunderkind bent on arriving at their chosen peak with a quite unembarrassed show of ambition. We see silks becoming human rights lawyers and judges trailing ideological capes with a view to promotion. These generalisations are of course large, but life at the bar is now a lot more commercial and driven than it was fifty years ago, and the difference is washing over on to the bench.
Our reputation for being slow
When Hamlet was thinking of suicide, one problem of the world that crossed his mind was ‘the law’s delay.’ (Others included ‘the proud man’s contumely’ and ‘the insolence of office’.) The law rarely shakes off its reputation for being too slow. The faster you go, the more likely you are to get it wrong – but you can say the same about being slow. If a case takes too long, there are too many ways in which a fair trial may be imperilled – and it is not often the party with the merits but without the means that wants or causes delay. Delay tends to suit the wealthy.
Delay in litigation may come about in at least three ways. There may be a delay between the start of the action and its hearing, either because there are not enough judges and the waiting list is too long, or because the court or the parties want to talk about process before getting down to substance – the trial.
Another source of delay is the hearing itself. A simple crash and bash, one on one, would take under an hour when I started doing them. A simple maintenance case, wife against husband, would take about the same. But the impression that you get now is that a commercial or defamation case that fifty years ago would have taken two or three days, may now take two or three weeks.
The third kind of delay comes about because some judges do not feel able to give a decision on the spot. They wish to take time to reflect and to prepare a written decision. This can take days, weeks, months or longer, and drive people to despair (I heard a difficult tax case that involved accounting issues, legal issues, and hand-to-hand lying. It went on appeal to a single judge of the Supreme Court who had to conduct his own hearing. The family of the principal rang me from time to time asking when the judge would opine. He kept them waiting for two years. It was very cruel. Among other things, there were issues of credit. In that time, the principal died, and the High Court changed the law, and the presumption of a fair trial had gone clean out the window.)
By and large, the judges can deal with the first cause of delay in getting the case on. They might say that the government is not paying enough judges, but the public does not accept that slipperiness. They have hardly begun to try to control the length of the hearing, and there are wild variations in the time taken to deliver judgment – and too great an unreadiness to give one on the spot.
Possibly the most famous clause of the Great Charter of liberties given 800 years ago says, in English translation, ‘To none will we sell, to none will we deny or delay right or justice.’ People know the meaning of the phrase that justice delayed is justice denied. Not many people believe that the great promise of Magna Carta has been kept. People going to court do not want to add their wealth or their bones to some glorious juristic edifice – they just want to be put out of their misery and to get on with their lives.
Getting the case on
Let us look at the first area of delay – the time between the start of the action, by say the issuing and serving of a writ, and the start of the hearing or trial.
When I started fighting cases in 1971, mostly before Magistrates or even Justices of the Peace, most criminal cases were like most civil cases. You got the charge sheet or the summons, or the complaint for a motor car accident case or maintenance, that told you next to nothing – except where and when you were to turn up to fight it. There was nothing remotely like pleadings on either side, and no mention before or direction from the court. You knew what the informant or complainant wanted, and you turned up at 9.30 to get your customer’s version, and then sit around praying that you would not sit there all day, and have to drive back into town from, say Frankston, after 4 pm, without one cent of the promised $20 brief fee in your pocket, and complaining, even more loudly than the punter, about the ineptness of your colleagues whose unconstrained dilatoriness had stopped you getting on. You may even have wondered why the courts do not watch counsel more closely and do more to ensure that cases were dealt with quickly and sensibly. Both you and the parties are bemused by the other-worldly sense that time has stood still. There is nothing like a shut-out to prompt anxious reflection about forensic efficiency.
In the tribunals I have run over the last thirty years, I have, after getting rid of the back-list, and after giving the cowboys a chance to look at the new sheriff, sought to follow that old Magistrates’ Court model. I have described the procedure of my tax tribunal that ran for eighteen years as follows:
There are none of the trappings of civil procedure in a court. I dispensed with directions hearings. The parties were assured that the Tribunal would try to get rid of every matter referred to within six weeks. We usually did. Generally when a matter was referred, it was given a hearing date about four weeks away. The hearing was generally concluded in the morning and the parties got a decision that day or the next. Doubtless the Commercial Lists of the superior Court are dealing with much more sophisticated matters that have to take a much longer time, but I have the clearest view that if people want a fight, the best thing for us to do is provide an arena with a referee, and let the best team win. Witness statements were out; adjournments were never in. We should not tell them how to run a case, but we can put firm time limits on. We frequently dealt with cases in a morning which I had been assured would take days. After a while, I learned not to allow a case to go beyond lunch. Never give a barrister a second chance.
I have had a lot of trouble implementing the same ‘half-day all-over in six weeks’ regime in a disciplinary tribunal, because it seems to attract lawyers with different notions of relevance and no regard at all for time, and both sides appearing to have a lot of money behind them. On one occasion, I asked the kind of procedural question that police prosecutors deal with routinely; counsel said they needed to get instructions; they then said they need a short adjournment; six lawyers then left the room; in a case that could and should have been dealt with as a plea in twenty minutes. The erosion of public money was frightening.
There were difficulties in the summary form of process in the tax tribunal because commonly the real issue only became clear during the hearing. There had been an assessment, an objection, and a decision on that objection. Regrettably, both sides tended to load up the barrel with anodyne catch-alls, and I would occasionally ask Counsel for the Crown whether in the course of their argument they might make some passing reference to the terms of the decision that they had been briefed to defend – if only for auld lang syne.
But this is very common, is it not, even in courts of pleadings? And although we liked to get through cases in half a day, after we lost those massive cases about petrol and tobacco ‘taxes’ when the High Court rubbed them out, there was hardly any case that did not involve tricky issues of law and fact. The Crown appealed as of right and almost as of course if it lost before me. It usually appealed if it lost before a single judge, when the case went to the Full Court or the Court of Appeal. Three cases made it to the High Court. For the trivia night, each of the two most recent appointees to the High Court appeared before my tax tribunal on their own, before taking silk, as counsel for the successful taxpayer – and one of those cases went to the High Court.
In any event, I commend the in-and-out-in-six-weeks model to others. I have had a lot of complaints and rolled eyeballs and a few writs from lawyers, but I cannot recall any complaints from the punters – at least those who had a reasonable case.
Court control or management
Fifty years ago, there were basically two models for civil litigation. There was the one I have just described where young barristers got instruction in the facts of life, and not just forensic life, by doing police offences and minor crime, crash and bash, matrimonial and fencing and building (‘work and labour done’) cases; consumer law had not been heard of and people turned their noses up at debt collecting – we still had legislation for the imprisonment of fraudulent debtors. Both civil and criminal cases were dealt with summarily – and that was not a pejorative term.
The other model was the one that we inherited from the English. The parties seek to define the issues they want the court to decide by exchanging what are called pleadings. They then seek to find out (to discover) what documents each has that may bear on the dispute. They could then serve written questions called interrogatories on the other side that had to be answered on oath. Then when they had done all that, which might take a year or two, they would sign a document saying that they were ready to go. They would be put in a list of cases ready for hearing, and after say six months they would get a date when they would turn up and hope to get a judge who could give them a start – after grilling them about why they hadn’t settled. If there were any procedural issues on the way – about pleadings, discovery, or interrogation – the party aggrieved would raise this with an officer of the court and get a ruling. These rulings were expensive – as was everything else.
The disadvantages of the system that did not operate summarily are obvious. It has delay written all over it. There was a vast amount of case law and learning, and lore, about pleadings and discovery – far, far more law than we have for the law of negligence or contract. And it was as arcane as it was large – a precious tool was a 1948 English text called the White Book. The learning about specially endorsed writs and summary judgment was notoriously abstruse – and utterly without consequence for the punters. Young barristers would get out of the summary cases to do these applications, and the associated paper work, for, say, the second five year period of their apprenticeship, and with some trials in the County Court, this work would get them ready for the big stage. As an educational process for the bar, this was all terrific – but like all our process and all our case law, it was built on the bones of dead litigants, and so much of it had the foetid air described by Charles Dickens.
So, a little more than thirty years ago, the judges started to take from the parties the role of bringing problems to the attention of the court, and began to assume responsibility for managing the business in their own list or docket by giving directions for each step up to the listing for trial. This model is now much used. It stops cases going into oblivion, which is not always a good thing, but it does look to have been a bonanza for the lawyers. They have a lot more work to do. The focus on managing the preparation of the case for hearing has not been matched by an increase in the control of the process in the hearing itself. So far as I know, we do not keep records of the average times of waiting to get on or of the duration of the hearing itself, but experience does not support the view that building up documentation will shorten the hearing – the contrary is the case.
The idea that the judge, rather than the parties, dictates the terms of process, suggests a movement from the adversarial to the inquisitorial model. If you use the word ‘dossier’ for ‘docket’, you can follow the change. It is still the parties that put in what goes into the docket, but they are doing so in response to a direction from the judge. As a result, the judges spend a lot more time down in the arena than they used to.
People have different views on this – I think it is unfortunate. There is something to be said for the old view that good judges are like good children – they should be seen and not heard – and if judges are now responsible for managing their load to at least try to honour Magna Carta, they will have to accept responsibility for when the system goes off the rails – which it often does.
Stating the case
Pleadings were not used in the old days in the two lower courts – the person starting might put something like a pleading in the starting document, and the defendant would be called on to state their defence orally at the start. Even in the Supreme Court, simple cases, say for goods sold and delivered, could be started with a formulaic common count.
The system of pleadings used in the Supreme Court, and the federal courts hearing civil actions, derived from the English. Their history goes back to the medieval Year Books when what we know as the common law started with arguments about the nature of the claims that might be asserted in different kinds of writ. The system was developed to enable juries to give a yes or no answer to the issue that arose or to allow the court to rule as a matter of law on the adequacy of an allegation or response.
They developed into a subtle art form that too few could master. That subtlety was used in some areas, most notably libel, for poorer litigants to get beaten up with. Requests for more detail could be ludicrously oppressive. Too many games were played for too little result.
As we apply the system, it has been flawed by at least one error. You are to state the material facts – ‘he hit me’, ‘he promised to paint the timber and the brick’, or ‘he told my boss I was a thief.’ But then the system allowed for a second category of allegation. When you went into detail, this kind of allegation was called ‘particulars’. Sadly, the way the system grew up, it was only then that the other side knew what they had to deal with. But the rules said that you do not plead to particulars. So the parties wind up like tourists in taxis going round and round in circles on the Place de la Concorde, or like passengers in a taxi in New York where you and the driver are seeing the city for the first time..
Another problem was that you were supposed to be frank in responding – ‘I did not borrow $10, but I did borrow $5’; ‘I did not say he was a thief, but I did say that the Police suspected him of it’ became ‘I did not borrow $10, or any other amount’ and ‘I did not say he was a thief or make any other statement to a similar effect.’
Then came the glitzy supercharged models with preposterous definitions in bold and the scattergun that is the last resort of the timid or the desperate, and the system could go clean of the rails. I will look later at a truly pathological example, and at the highest level, of how we can get pleadings so wrong.
For myself, I wold like to see someone trial a system where each side sets out every allegation that it relies on to claim the orders it says the court should make, and we will see you there on the day – and if you choose to make life hard for either us or them, it might go badly for you. Each side should set out its version of events, and the legal consequences. That is how the argument will end, and there is something to be said for starting it that way.
Some people like to get someone on oath at the start. Corporations or the like put up people who will not be called, but I have misgivings about imperilling immortal souls on what might be little more than moves in chess. If someone says ‘this is my story’, and then changes their story, they should have to live with what usually follows in other contexts – the possible collapse of their credit and their case. One of the failures of the current regime is that it is so technical, lawyerly, and contrived that most trimmers get away with it too easily.
Immanuel Kant was a great figure in the Enlightenment and he had a mind of prodigious output. His Critique of Pure Reason might be the most dense and abstruse book ever written. Years after it had been published, Kant confessed to his students that at first he had no idea of the goal of the Critique. He told his students that anyone who thinks methodically ‘must know (1) what precisely it is that he wants to establish, and (2) what is decisive for establishing it.’ Before you can give an answer, you have to find the question.
Getting the evidence together
There are some cases where a party would like to know what documents the other side had. Well, on a straight common law action, a hang-over from trial by battle, it would have been silly to suggest you might take a look at what the other side had beforehand. Documentation was fundamental in disputes over land and often critical in commercial disputes, but the parties were left to procure their evidence as best they could – knowing that they could rely on subpoenas at the trial.
But the Chancery, which operated on the conscience of parties, could and often did order parties to produce documents. They could also deliver written questions called interrogatories. Both had to be answered on oath – the Chancery used to proceed on the basis of testimony sworn in writing (affidavits). When in the reform movement in the 19th century, the English sought to streamline legal process by fusing the Chancery with common law courts, the new combined court could invoke the equitable processes of discovery and interrogation in common law actions – say negligence or contract – and that came to be the practice as a matter of course in superior courts. By an accidental process of history, the common law action had acquired an inquisitorial overlay.
Here are some of the problems you will face in handling this ancient equitable remedy. It is what surgeons call an invasive procedure, and the patients do not like it at all. They will try to avoid it, and you have to rely on a kind of honour system. It puts lawyers in a dreadful position: they have to tell their client to come clean even if it means that they lose the case. But what if they are the firm’s best client and they threaten to go elsewhere; and the lawyer would rather not lose the partnership while there are three daughters at Wesley? The judges extended the ambit of search beyond those directly material documents to those that might lead to a train of inquiry. What a boon for bush lawyers. An off the cuff remark by a judge in Victorian England, in a case about birdshit in Peru, has done wonders for retailers of Mercedes and BMW in Australia. Big corporations and big firms could do snow jobs. The process has been an immensely rewarding chocolate factory for lawyers since a time about thirty years ago when someone said they could charge a dollar a page, and Mr Xerox became the managing partner. It is hard to catch the cheats, and when one rotten party got rubbed out for cheating, it persuaded a naïve appellate court to put it back in the game. Finally, people are forever hanging themselves by email – that is just how Bill Gates came unstuck – and the stakes just get bigger in every way.
There is no doubt that some meritorious cases are aided by discovery. Are they worth the frightful problems and costs? Opinions will differ, but well off parties may be better placed to deal with those problems than others. I have certainly not missed it in thirty years on the tribunal – although my theoretical access to all the files of the revenue officers meant I had a fall-back if I thought that games were being played by the Crown. (It of course has its own powers.)
In my view, there should not be discovery as of right or course. Depending on your view about judicial intervention before hearing, you could have a rule like one common in arbitration that each party produce each document that it will rely on at the hearing and stipulate what documents it requires from the other, or you could leave it to the court to develop different schedules for different sorts of litigation.
Presenting the evidence
Historically, evidence in common law and criminal cases was given in the witness box, and in cases in equity it was sworn to in writing. When court management came into vogue about thirty years ago, many judges thought that they could speed up the hearing by having the evidence of a witness reduced to writing and adopted on oath in the witness box, so that you could scrap evidence in chief. I don’t think many now believe that this innovation saved court time. It certainly put costs through the roof.
This device is thankfully being phased out. It is impossible to remove the fear that evidence is being concocted by the witness and the lawyers, and it is not fair to the witness to throw them straight into the deep end of a shark pool. Evidence is either contentious or not – if not, it can be led; if it is contentious, it should never be led.
In the 1970’s to the 1980’s, the late Neil McPhee and I fought a lot of contempt cases. We lost every one. We used to put the journo on affidavit and drop it on the Crown on the day – this was after all a kind of criminal prosecution. Can you imagine the care that was put into these documents? As we crossed William Street one day, the following type of conversation occurred.
I don’t like this, Neil. That bloody affidavit has more holes in it than a bridal veil.
The judge only knows what’s in the affidavit. Your problem, my friend, is that you were involved in preparing the document. You know too much.
Is that better or worse than the contrary, Neil?
Within about twenty minutes of the start, the judge and the Solicitor-General were having a whale of a time picking out the most telling holes. Neil was a lot better at keeping a straight face than me – he was of course the senior counsel. Putting it at its lowest, it is appallingly unbecoming for lawyers to put themselves in this position. Those who defend this dreadful sham cannot have spent much time at the composing or concocting end – or seen or heard some of the wilder unsworn statements in criminal cases.
It is not fair to the witness; it is not fair to the lawyers: and it is not fair to the judge. They want to assess the witnesses by hearing them give their evidence from the start. I have described elsewhere how sickening the other process can be.
The last case I heard at VCAT showed what happens when inanity prevails. A Sicilian migrant went from being a butcher to a baker – he did not like the cool room – and he astutely bought land in the corridor. By the time he got to me, he was worth north of $40 million. He distrusted lawyers and all professionals. Was he now a farmer? Someone had made directions for witness statements, which are anathema to me, and all the ghastly folderol indulged in by lazy judges. The Sicilian filed a [long] statement in impeccable English about trusts and companies. The first thing he did in the witness box was to ask for an interpreter! But he knew his occupation: FARMER. Since I thought that that answer begged the question, I asked the interpreter what was the Italian word for ‘farmer’ and he said there was none.
That case had become unfair for all involved, including me as the tribunal, because it had become a circus.
Before leaving evidence I should say something about the oath. It comes from a very different religious age. I like to swear in witnesses myself to get a look at them from the start. It is hard to believe that many witnesses take the oath seriously. They just blithely go through a formality. It is one thing to have the supernatural in court; it is another thing to countenance hypocrisy in court. I think we should look at something like a statutory declaration where the witness is told point blank about perjury. I could not care less about their relations with the Almighty in this world or the next, but I want them to know that if they play up and get caught, they are looking at the slammer. That can sound late and heavy-handed coming from the bench. Such a course might also avoid the appearance that we prefer one faith over others.
While we are scrapping witness statements, let’s also ditch court books, written submissions, and folders of authorities. If people want to submit a note of their argument, in the form say of one and a half pages in summary and syllogistic form, fine – but nothing more ornate. Counsel refer to far too many cases – and too often when they are committing the mortal sin of not knowing what the case actually decided. (Every now and then, ask counsel who won the case they are referring to.) If as counsel you want to hand up a report of case, and you can tell the court what the case decided, just hand up the headnote and the part you rely on. I heard lots of charities cases, and one part of the law was stated with Biblical finality in one paragraph by a Law Lord in the 19th century. I always got the full case, about 100 pages, and had to resist reading some drole observations by Lord Macnaghten on the lifestyles of the Moravians.
Some of these steps may have some benefit for the court, but not enough to make the punters pay for it. I personally would say the same about transcript – apart from one well publicised public inquiry, I don’t think I ever saw one before I gave a decision in all my time – but that may I think be a bridge too far for generations brought up in far, far more comfort than their ancestors ever knew.
I would also scrap mandatory mediation. There is something on the nose about the courts’ forcing people to try to be reasonable and to agree, but only after the lawyers have had a few more trips to the well, and then in a very expensive and courtly way. Court ordered mediation is too prone to being just another rung on an already expensive ladder, and one that too many lawyers stand and posture on. The process has now been saddled with a bureaucracy that is Orwellian if not insane. People traditionally settle when they get a sight of bare steel, so that the best way to get them to think seriously of settlement as soon as possible is to get them into the ring as soon as you can. That, in the words of Doctor Johnson, will concentrate their minds wonderfully. Setting up a dress rehearsal first is a way for wannabes to line their pockets.
Procedure run amok – court management gone berserk
Before I come to the hearing, and later phases, I want to take some time to describe a forensic trainwreck that shows how badly we can get things wrong.
Australia enjoyed a long mining boom. Central to that boom had been the need of China for our mining products. Fortescue Metals is a publicly listed company engaged in mining. It and its Chairman and CEO, ‘Twiggy’ Forrest, are on any view major players. Mr Forrest is no shrinking violet.
In August 2004, Fortescue published statements to the market claiming that it had ‘binding contracts’ with three Chinese state owned entities that supported its Pilbara Mining Project. The importance to the market of these statements, and their effect on share price and the personal wealth of Mr Forrest will be obvious. As will be their possible fallibility. After investigating a claim in the press that this claim about binding contracts with the Chinese was false, ASIC, the corporate regulator, sued Fortescue and Forrest saying that the claim was misleading. They expressly alleged that Mr Forrest had said something that he knew was untrue. That is an allegation of dishonesty.
It is hard to imagine a case requiring greater diligence and good sense in its disposal. Yet the issue was not decided until more than eight years after the publication, and six and a half years after the action was commenced. By the end, the claim of the regulator extended to 108 pages. This forest-killing exercise in gamesmanship was probably about 106 pages more than the average investor would think was required to raise a simple issue about a businessman telling a whopper. The case is if nothing else a frightful warning of how our excessive case management leaves us unable to see the wood for the trees. A more bleak view is that this was one of the great snow jobs in Australia’s legal history. It is a matter that could have been dealt with by a committee of the Stock Exchange in an afternoon in response to a one page letter.
The trial judge gave judgment in December 2009. The judgment runs to 200 pages in the law reports. (I wrote a book The Common Law, A History. It started with Adam and Eve and it went to 47,000 words. This judgment would be about twice as long as that.) The trial judge found against ASIC and for Fortescue and Forrest. His Honour made observations about the need to be careful with allegations of dishonesty. Well, if nothing else, this was a statement of the bleeding obvious about the need to deal with this case sensibly and swiftly, and it might look rich for one lawyer, even if a judge, to grizzle about the delays wrought by lawyers. Yet for all the readiness of Mr Forrest to hug the limelight outside, and for all the outrage expressed by his lawyers at the awful charges against him, Mr Forrest was not prepared to go into the witness box. He took the Fifth; then he pleaded defences on which he bore the onus. Mr Forrest was not prepared to put his considerable mouth where his even more considerable wallet was. The reputation of West Australian mining entrepreneurs was not on the up.
The regulator appealed to the Full Court. That court gave judgment in February 2009. The three judges, the Chief Justice (now on the High Court) and two very experienced commercial judges, were unanimous in finding that the relevant statement was misleading, and that Mr Forrest had been implicated. The company and he had therefore been in some kind of limbo for nearly five years, sublime testimony to the value of the law’s delays to those who may be found to have fallen outside it but who are rich enough to play the game.
Justice Finkelstein did not agree at all with the trial judge about the conduct of ASIC. He did what an investor would expect a judge to do, and he looked at the course of trading in shares. You can read the remarks for yourself. They will surprise no one who invests on the Stock Market.
But there was a last avenue of appeal, and money (except ours) had ceased to be an object years’ ago. The High Court gave special leave to appeal, heard the appeal and gave judgment in October 2012 – eight and a half years after the publication complained of. Judgment against ASIC and for Fortescue and Mr Forrest. The High Court focussed on the pleadings. Rather than look at how the lawyers were driven to characterise events, they might have spent more time looking at what investors do.
What was the upshot of this embarrassing Dickensian shambles? One judge gives judgment for the miners and a smack to the regulator. Three judges unanimously go the other way and try to ensure that the regulator is not frightened out of doing its job. Then the last five unanimously go back to the start, in the sure and God-given conviction that if there had been another level of appeal on the merry-go-round, it would probably have been their turn next.
The High Court said that the issue was what readers of the statement to the stock exchange would have understood by the reference to ‘binding contract.’ That is an issue of fact. It is a perfect example of an issue fit to be tried by a jury. But the Federal Court does not have juries and only one of the nine judges hearing this case had ever instructed a jury. How would people of the intellectual refinement and cloistered seclusion of these judges know how the ordinary person would react? Why would justices of the High Court be better placed to deal with this factual issue than Federal Court judges who at least still get to try issues of fact without a jury? When was the last time any of these judges had been in a queue for a beer and a pie at the Storm v the Eels? And why would the High Court allow its precious resources to be spent on a simple issue of fact?
The Full Court said that the reference to ‘binding contract’ would not have been understood by the ordinary investor as a statement of opinion, but an assertion of historical fact. The High Court said that the judgment of the Full Court entailed that the reference to ‘binding contract’ conveyed a message about enforceability in an Australian court. Oh for the inscrutable verdict of a jury!
It is unlikely in the extreme that any investor analysed the statement in the manner that the High Court did. The ordinary investor – any member of the public – simply does not have the equipment for those intellectual gymnastics. The ordinary investor would look at the announcement and say that if that is what the company is telling the stock exchange, then we are meant to rely on it. Now, that reasoning might be circular, but an immaculate conception of logic is not a prerequisite for investing in shares. People in business would regard the statement as ‘bankable’.
Commercial lawyers looking at this statement would raise their eyebrows. Whether or not a contract has become binding is a matter that is notorious for its legal difficulty. Especially in China! And that is precisely why this statement was so dangerous. The ordinary investor is not a lawyer trained to see how problematic this kind of legal conclusion or opinion might be. These kinds of deals worth billions are stitched up at great length by legal teams working around the clock to develop what is called the ‘bible’ which is longer than the Bible. A partner of one of the international law firms that makes these bibles who saw this reference to a ‘binding contract’ before the bible had come into being may simply have said a Hail Mary for the Professional Indemnity partner of the law firm that signed off on this announcement (and you can bet that a team of lawyers was involved there).
Well, Fortescue spent eight years backpedalling from the word ‘binding’ and the company found itself on safe ground when the music stopped. On any view of these proceedings, Fortescue showed a reckless indifference to the market in its shares being properly informed, and there can scarcely be one investor in Australia who will be glad that Fortescue got away with it. And then left you and me to pick up a tab that could have got us a good jet fighter.
Controlling the hearing
While a great amount of court time is spent on directions for steps to be taken before the hearing, not much time is spent at the hearing in controlling and expediting the process. The trouble is that nearly every direction that a court gives before the hearing requires a party to do something, and that means that the lawyers have to work, and that means that the bill keeps going up. But we rarely see the court giving directions that are designed to reduce the bill.
Most lawyers work on a meter – on an hourly or daily rate. The more hours or days they spend on a job, the more they get paid. It is not in their financial interests to do their work so as to reduce as far as possible the time that they spend on the job. Two or more generations ago, this was done not by paying them for time spent but by paying them a lump sum. They were not paid to read the brief or to prepare for the hearing – they got a fee for the whole brief to appear. It was called a brief fee, and if, say, that was enough to cover a couple of days in court, counsel would not be minded to take much longer. You could rely on them for that.
The courts therefore have an interest in controlling the time that counsel take to conduct the trial. They have more than an interest in doing so, because their main job is to provide a fair hearing, and they do not do that if they allow the hearing to get of hand so that one or both parties cannot afford to go on. Indeed, it is sometimes hard to avoid the conclusion that some judges just sit there blandly in the God-given hope that eventually the combatants will run out of steam and surrender – at which point the judge most graciously congratulates them on their wisdom. And delay usually hurts the weak more than the strong.
It was perhaps inevitable that parliaments would relieve tribunals from being obliged to follow the rules of evidence, because undue technicality could frustrate their doing their jobs, and because not many understand the rules. But a lot of the law of evidence just applies logic or common sense or basic notions of fairness. Unless you apply some notion of relevance, you may never finish. If one side is going to say that a witness for the other side is mistaken or lying on a point, that should be put to that witness while they are in the box so that they can deal with it. If one party can call a witness about what happened, but does not, they are open to the comment that the inference is that the witness would not help them. These are all matters of common sense that any tribunal should apply.
And if it has any sense, it should apply the rule that says that if an answer is given to a question that is not related to a fact in issue but merely goes to credit, then that answer is final. The other party cannot call evidence to contradict it. Otherwise you are exposed to an infinite regress. The failure to observe this rule is one reason why cross-examination takes so long. Another reason is the delusion held by so many at the bar that cross-examination is a no-fly zone for the laws of evidence. There is a general miasma about this which I think has contributed greatly to the length of hearings.
Not many people now can cross-examine. Rather, they get together a large pile of documents, which it has cost the parties a fortune to assemble, and let the witness know that he or she is going to be invited on a long and painful journey. Tabbed court books of documents and computer files have contributed to this deterioration. So far as I know, it is still the law that if you call on the other side to produce a document, you can be compelled to tender it. In our paper-crazed condition, that law is barely heard of now or even remembered.
So, one way to control the hearing is by applying rules of logic and sense. Another way is by fixing time limits. If we got through, say, half a dozen witnesses between 10 am and 11.45, I could apportion the time remaining until lunch between counsel for their addresses. They might want to go on after 1 pm, but gastric juices then play their part. Nor did I hesitate to tell counsel that cross-examination was too long, going nowhere, or just plain unhelpful. ‘How will this questioning assist this process?’ I do not know how judges can just sit there while cross-examination goes on for hours or days in an apparent attempt to revive trial by ordeal. If counsel have not scored a real hit in an hour, it is time to intervene. It is your job to provide a fair and sensible trial: to put people out of pain, not to extend it.
Judges are properly wary of quotes for time given by barristers – especially if their chance of getting a start improves with a low quote. For your own purposes, you might double the quote. For their purposes, you might halve it. I chaired a public inquiry in a very sensitive and much publicised matter. I had four lay people around me who had full-time jobs and little time to spare. (One was the late Ron Casey of Channel 7 and World of Sport.) Senior counsel for both sides gave a considered estimate of four months to start much further down the track. We told them we would start shortly, and that they could have four days – and we held them to it. Sometimes you have to put your foot down. No organ of government has unlimited means, and every organ of government bears some responsibility for dealing with its cost. The great Lord Mansfield recognised that lawyers are the main cause of delay – together with litigants without merit.
Before leaving the discussion of the hearing, I might mention another issue that may affect the nature and the length of the hearing. You would think that the questions was he negligent or was he honest would attract the same kind of inquiry as the questions was he in a position of confidence or did he act unconscionably? But because of our history of common law and equity, that may not be so.
Sarah Jenyns, who was born in 1865, ‘conducted a matriarchal business in corsets and surgical appliances.’ The business was hugely successful and involved her seven children. In 1946, she transferred the business to a company, but she did not ensure that each child took shares, ‘and thereby [she] planted the seeds to this litigation’.
A subsequent transfer to one son was attacked. He was said to have been in a position of confidence when she was vulnerable. The trial in Queensland had to be before a jury and it ran for 28 days. The evidence revealed that Mrs Jenyns had her foibles – she could have walked straight out of a novel by Patrick White. She claimed to be in touch with the Almighty; she fell into periods of silence when she would only communicate in paper; and she had developed a taste for rum, whisky, and opiates. She was a living land-mine for litigation. As the joint judgment of the High Court (Dixon, CJ, and McTiernan, and Kitto, JJ) said:
There were conflicts of expert and other evidence characteristic of such issues, but doubtless the root cause of this controversy lay in the unusual nature of Mrs. Jenyns’ personality and the complex and inconsistent psychological elements forming it. In a woman of proved business capacity, and considerable practical experience, possessing a peculiar understanding of her specialized trade and its profitable exercise, never separating her business and family life and always striving to dominate in both, and yet long accustomed to profess that her actions were guided by direct communications from a divine source, lacking all sense of the incongruous in the purposes for which she vouched heaven as her authority, temperamental in many of her attitudes and judgments, uninhibited either by a sense of humour or a fear of ridicule, it must have been difficult as she advanced in age to distinguish in her what was merely temperamental or perhaps histrionic from what was irrational, and difficult to judge whether her less rational expressions and ideas had any bearing on her business instinct and understanding and how far family predilections competed in her judgment with practical considerations affecting her own business advantage. One curious feature of the case is that at the trial Mrs. Jenyns was still living and might have been called as a witness.
The Queensland Supreme Court set aside the transfer of shares that was attacked. The High Court allowed the appeal on the merits. The High Court commented on the obvious difficulty in running a case like this before a jury, and in in the kind of language that we associate with that Court, it said:
The jurisdiction of a court of equity to set aside a gift or other disposition of property as, actually or presumptively, resulting from undue influence, abuse of confidence or other circumstances affecting the conscience of the donee is governed by principles the application of which calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the donor. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition.
Their honours referred to the remarks of an English equity judge made not long after the Battle of Waterloo: ‘A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case.’
For better or for worse, that difference in the trial process may still be with us every day – even in humble statutory tribunals. The other worrying thing about this case is that apart from allowing the appeal on the merits, the High Court held that the whole action was outside the powers of the statutory officer who sued, and that the action should have been dismissed on this ground alone. It looks like the point was not noticed until the parties got to the High Court. The conversations between the parties and their lawyers might then have become a little strained.
A judge once concluded a judgment saying ‘I hope that I haven’t said anything new’. That kind of shyness is less in vogue now. But it might lead you to ask the question. Will deciding this case require me to say something new? Unless you are on the High Court, the answer will almost certainly be no. In that case you can dispose of the matter as crisply as you can, while doing as little damage as possible to the people involved or to the fabric of the law.
But in the rare case where you may have to say something new, why should not those same considerations apply? If you are going to add to the body of our law, then unless you are some kind of juristic superstar, which you almost certainly are not, the chances are that your efforts will leave us worse off. Why should not you still seek to get rid of the matter saying as little as decently possible? Did anything – anything – good at all come out of the gallons of ink spilled by nine judges arguing about whether Twiggy had told a fib?
So, I would suggest that the first thing is to keep the decision as short as the law and evidence permits.
The next and related tip is to start as soon as possible doing them on the spot. It will depend to some extent on jurisdiction, and on temperament. The late Bill Crockett told me that he enjoyed the Practice Court – ‘it gives you a chance to chance your arm.’ He was on any view a pre-eminent judge – the most imposing judge I have appeared before – but you need to confront something like that sentiment, and the sooner you do so, the better – otherwise you may never get round to it. And the most gripping disease that can cripple a judge is getting behind in reserved judgments. We see it so often, and it is a very sad failure of character and the system.
On disciplinary tribunals, I think that the decision should be given on the spot, and face to face with the punter. You should do it to their face, but you can reserve the right to add to and vary those reasons later. You may want to do that on some tribunals because people may look to you for guidance on some issues.
I never felt up to giving a decision on the spot in complex cases like charity cases, preferential securities cases, group pay-roll, or tax evasion cases – for one thing, I had no idea what the endgame might be, and it may not be a good idea to think out loud in those cases. Nor did I think those cases were ones where I should chance my arm, since there were tricky issues of law or fact. But where the issue was just one of credit or penalty or whether a contract had been concluded by a certain date, there was no problem about doing it on the spot. It is not my area of practice, but I wonder why most appeals on sentence are not dealt with on the spot. Do we really suppose that the science of punishment is that precise?
We tend to forget now that from its creation, the English Court of Appeal tried to get through most of its load on the spot. Oliver Wendell Holmes loved this idea – he would doubtless have been up for it. Our High Court used to do it occasionally. I referred earlier to the rule that if you call for a document, you can be compelled to tender it. The authority is Walker v Walker. That was a matrimonial case – presumably of a very wealthy couple since this maintenance case started before Magistrate. The Court gave its judgment on the spot. Latham, CJ and Dixon, J offered brief observations. Here is the judgment of Justice Starke:
I agree that the appeal should be dismissed, but I do not agree that the letter which has been referred to was admissible in evidence of the husband’s means. It is, of course, an old rule that if a party calls for a document in the course of the trial he is bound to put it in if so required, but it does not follow that every statement in such a document, hearsay and otherwise, is evidence. It is for the court to consider the matter in each case, and in this particular case all that happened was that the letter was put in to confirm the wife’s statement that her knowledge of her husband’s means was based on hearsay and nothing else. I should not have thought that the letter could in these circumstances be used affirmatively, or that it had any probative value whatever. However, I think there was other evidence which was given of the husband’s position in life and positions that he had occupied which were sufficient to support the decision of the magistrate.
The parties like judges who are short and to the point. Instead, we are lost on a sea of cut-and-paste agglutination of the style so deplored by good judges.
On the length and depth, or scholarship, of the judgments, I think that the problem has got worse over the last generation or so with footnotes. They should have no place in the courts. The taxpayers fund the judiciary to resolve disputes, not to compile and compound juristic theories and theses. The actual litigants are much more aware of this distinction than judges think. They just want to be put out of their misery and not to be used as a source of ammunition for the next bunch of guinea pigs – the problem is that empire building does not just hold up the litigants who are the parties in the exercise, but it helps to make it worse for the next lot. And who wants to be put down by a footnote?
May I take it to be common ground that we have too much law already? If so, how confident is any would-be law-maker that their next new law will leave us net better off? So, to the wunderkind or appeal court who wants to unload the next few hundred page bible, I put the Latin question: cui bono? Just who is the audience? Certainly not those who paid for it – the parties.
Two of the tablets of our law of negligence were given by two masters of the law, Justice Cardozo in Macpherson v Buick Co. and Lord Atkin in Donoghue v Stevenson. Elsewhere I said this:
One footnote may be permitted to these judgments. That of Cardozo J is about ten pages in the reports; that of Atkin is about twenty one pages. Atkin in his judgment refers to the ‘illuminating judgment’ of Cardozo, and apologises for his own ‘long judgment’. Heaven only knows what either of these great judges would have thought of the effusive fulminations of the doom-thunderers of nowadays.
The movie Casablanca takes ninety-four minutes. Any director who makes a film longer than that is at risk of being seen to flirt with Destiny. So is any judge who takes longer than Justice Cardozo or Lord Atkin.
Finally, if you are going to reserve, get it done quickly. Don’t let it or others turn into a cancer. If the case has run for more than a day, you can have the introduction and summary of the evidence and argument made up as you go. The instincts developed over twenty-five years fighting cases will lead you to review the evidence and the law, and then make findings on the evidence and draw the conclusions of law – and so you come to decide the issues. It is about a five phase process.
It has been a very long tradition to expose in Anglo-American courts to expose the reasoning in this structured manner. Nowadays we use that ghastly word ‘transparency’. This is not the way they do it in Europe. They think we are odd. Major law firms now follow the advice that Sir Ernest Gowers (in The Complete Plain Words) gave to the English Civil Service: ‘Begin by answering his question.’ I doubt whether that mode will take on here, because the judiciary is not the civil service, or the retailer of advice to paying customers, but you could well remember how Sir Ernest summarised his rules: ‘Be short, be simple, be human.’ And judges should be encouraged to give a summary of any reserved judgment.
All this has to be done when the case is fresh in your mind – especially if issues of credit are involved. It is not fair to the parties to allow a lapse of time to flirt with your powers of recall and analysis. Such a course is unjust.
I have always tried to give a decision on the day of hearing or the next. I don’t think I ever sat on one for longer than a week. If anyone wants to say that I confronted less pressure of work than they do, I will be interested to hear from them. We are talking about professional duty and discipline. For myself, I cannot understand how any judge at first instance could in good conscience sit on one for more than a month. You are then likely to cause real pain to real people, and you are not doing the right thing by the rest of us either. If such a practice were adopted, and it had the effect of reducing attempts to match War and Peace, very few would dress themselves in mourning.
About thirty years ago, I was at an ABA Conference in New York. I attended a very affable breakfast for appellate counsel. Late in the session, I asked if there was an agenda. ‘Not really, Counsellor. There is only so much you can say about appellate advocacy, and it has all been said before. We just fix the agenda for the next meeting.’ That sounded most agreeable. It was there that I heard for the first time the U S description of appeals’ judges – they hide out in the hills while the real action is going on, and when it is over, they come down and shoot the wounded. That observation has an American ring to it – a ring of the West.
My own view is that the pain is far less if those doing the shooting are drawn from those who might be shot – and it was a mistake to have a separate Court of Appeal. The ordinary punter gets nervous with splits in the higher reaches of government. There is no point in adding to the hierarchy for the sake of it. It is inevitable that a separate Court of Appeal will develop a sort of aloofness that will lead to estrangement from those still in the trenches. The more rungs there are on a ladder, the more rickety it becomes, and the easier it is for some to look down on others, and for those others to feel passed over or looked down on. The principal differences between trial judges and intermediate appeals judges lie in their apparent self-esteem and capacity to make law; the two are related.
The position looks very bad in Victoria with County Court judges all the time being spoken down to by faceless judges who have little part to play with the bar or the profession at large. This is very unhealthy because the Court of Appeal and the County Court appear to operate on different juristic levels. There is a kind of intellectual apartheid. It is worse than the public service in Canberra.
Then comes the coup de grace. Some of those appeal judges have never fought a criminal case, never fought a case before a jury, and have never directed a jury. And yet those whose bread and butter has been to appear in front of or to direct juries have to be lectured by some who have never done it. In the Heydon Royal Commission, the whole nation can see the problems that arise when you ask someone to do the work of a trial judge and they have no training for that purpose.
There is another cause of disaffection. Our appeal judges have not got their act together in stating their view of the law in crisp simple terms that can be applied by your everyday trial judge. There are too many judgments with too much said. We have abandoned the wisdom of our ancestors that held that dissent on high is unhealthy, and on the High Court in particular, we have had to put up with prima donnas whose conception of their own egos has not allowed them to be just one of the team, but requires them to flaunt their own wares – to the benefit of no one except those idle people who have the time to read that kind of stuff.
But you should not be troubled by appeals. I say that although my sense is that County Court judges are delivering a lot more reserved judgments than they used to because appeals are a lot more prevalent than before. I have never understood why judges get so scratchy about appeals. Unless you have said that 1+1=3 or that Donoghue v Stevenson is a leading case on the tort of homicide, the fact that another lawyer comes to a different view to yours appears to me to be an utterly inconsequential result of the fact that litigation is a lottery. On more than one occasion in tax cases, I have told the punter that a win from me might be their worst result along a winding and rough road. I also often told counsel that many parts of the law are beyond my comprehension.
I have been talking of the sensitivities of judges. Far more important are the interests of the parties. There was an old Latin maxim to the effect that it is in the public interest that there be an end to litigation. Most litigation is hurtful. Appeals are forms of litigation that extend the hurt. Some appeal courts compound it by ordering a retrial. That happens when some judges say that one or others got it wrong, and the parties have to suffer the consequences.
My own view is that we have far too many appeals, and that if the bloke next door found out how many criminal trials had to be repeated, to the unspeakable misery of those involved, he would be outraged – and I do mean outraged. Even in my jurisdiction, there were bad accidents. Some brothers named Christian on the land in Gippsland had to turn up before me on a dispute with the revenue authority about stamp duty on a partition of their farming property. That was a subject on which I was anything but confident. These farming brothers had not, like Twiggy, sought to bring government down on them, but they were taken by government, for its own purposes, to a single judge of the Supreme Court, from there to the Full Court, and from there to the High Court. The stamp duty in question was under $9000. I think that special leave was refused – otherwise I might just have been the first of five layers of appeal – as happened, I think, to two other cases of mine.
You might say that that is Dickensian or Pythonesque. In truth, it is a mix of madness and cruelty that can ruin lives. Our appeals procedures badly need reform.
You can usually tell shortly after entering a court-room whether a judge is up to it. If they look at home in the surrounds and appear to be content in themselves, you’re OK; if not, everyone is in trouble. In the professions, as in most undertakings, you take a certain amount of learning, skill, and experience as a given – the rest then is character, and for the most part, that does not change. It is the same on the bench.
We would hope that most judges enjoy the job – those that don’t are a pain. The pay is good. The benefits are beyond belief. They are about the only part of government for whom people have some residual trust left. There are limits on the lifestyle, but cloistered sodality need not give way to secluded insularity.
I preferred the times when the Supreme Court was the Supreme Court, but all judges still had to do their share of crime, divorce, civil juries, the Practice Court, and circuit. That mix of people in the street and the gutter helped to stave off that frightful aloofness and ineffable superiority that a taste of ermine confers on so many mortals.
The leading judge of his generation, the late Tom Smith, had a more mundane view of judges. The ordinary person – the punter – is oblivious to so many of the degrees of separation in the hierarchy that so engage the judges themselves. Smith thought that the average bloke looked on judges as being not far removed from coppers – people who might, unless you were careful, do you some kind of harm. I have a very healthy respect for the worth of that view.
There have also been sea-changes in the place of the judiciary over the last generation. The bench used to be the appointed end of a career at the bar, and retirement from the bench meant retirement. Neither is the case now. There are very mixed views on the glowing afterlife of judges, but it is hard to see any loss in a large part of the cream of the bar electing not to take judicial orders. In the result, there has been a great shift in the spread of intellectual life between the bar and the bench. I have a clear view that at least in commercial law and equity, the bar now has a strong intellectual preponderance over the bench. Some might say the same for constitutional law. In any event, I regard this shift as healthy. It is altogether right and fitting for people who turn 70 to realise that all the judges out there must be younger than them. This shift helps keep judges earthed.
I go back to where I started. ‘People are in conflict and need help. Your job is to help them by resolving the conflict. To do so, you will have to take authority over them by making decisions that bind them by the force of the law and the power of government. The sooner you do this, the better – for you and them’. Get them into the ring as soon as you can. Your job is to expedite the resolution of the conflict, not to put up roadblocks to prevent a trial. Focus on the conflict and not on the process. A gram of evidence is worth a kilo of process or folderol. There is no point in trying to fit the parties up with a Rolls Royce if all they want or can afford is a Toyota.
You might think I was being deliberately Bolshie if I said that I was in favour of getting rid of court management, pleadings, discovery, interrogatories, witness statements, court books, compulsory mediations, and transcripts – but I have to say that I have done so for thirty years on tribunals – and governments have an affection for tribunals that I find unhealthy, but which real judges have no interest in feeding. History suggests that if the judges don’t get their act together, people go elsewhere, with or without the government.
The world is imperfect, and we all have to live with that fact. You hold your office on trust as a servant of the people, and you seek to discharge that trust by resolving as best you can conflict within the people. The rest, as someone said, belongs to the madness of art – or else it was summed up thousands of years ago for the Egyptian Civil Service:
Be courteous and tactful as well as honest and diligent.
All your doings are publicly known, and must therefore
Be beyond complaint or criticism. Be absolutely impartial.
Always give a reason for refusing a plea; complainants
Like a kindly hearing even more than a successful
Plea. Preserve dignity but avoid inspiring fear.
The precedent following those precepts is a letter from a Minister of Finance to a senior civil servant. ‘Appollonius to Zeno, greeting. You did well to send the chickpeas to Memphis. Farewell.’
Churchill on experience: Great Contemporaries, Folio Society, 2015, 6.
Maitland on cricket umpires: Pollock, F and Maitland, F W, The History of English Law before the Time of Edward I, Rev. Ed., Cambridge, 1898, Vol 2, 620-621.
Description of the process before tax tribunal: Gibson, G, Confessions of a Barrister, Amazon, 2014, Part XII.
High Court judges as junior counsel in Victorian tax cases: Christian v Comptroller of Stamos (1989) 89 ATC 2025; 3 VAR 12; 20 ATR 1206;  2 VR 129 (Nettle, J); Australian Conservation Foundation v CSR  VCAT 1491 (Gordon, J). Central Bayside v CSR  VSC was on appeal to Nettle, J, and went to the High Court ((2006) 80 ALJR 1509) where M Gordon QC appeared as amicus.
Kant on thinking methodically: Kuehn, M, Kant, A Biography, C U P, 2001, 235.
The VCAT case and the script for the Sicilian: Confessions, above. Part 12
Fortescue litigation: 264 ALR 201; 190 FCR 364;  HCA 39.
Law of Evidence: being compelled to tender a document you have called for: Walker v Walker (1937) 57 CLR 630.
Jenyns litigation: Jenyns v Public Curator (1953) 90 CLR 113 at 118,119.
Judge not wanting to say anything new: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd  AC 749 at the end of the speech of Lord Steyn.
Macpherson v Buick Manufacturing Co (1916) 217 NY 582; Donoghue v Stevenson  AC 562; citation from Gibson, G, The Common Law, A History, Australian Scholarly, 2013, 65-66.
Gowers: The Complete Plain Words, Revd. Ed, London, 1973, 13 and 18.
Egyptian Civil Service: Gowers, above, 20.