Judging the judges

Th’ oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office, and the spurns
That patient merit of th’ unworthy takes….

According to the press, the Judicial Commission of Victoria has stood down a magistrate pending an investigation.  The facts alleged were not disclosed, but the Commission says in a press release that the magistrate was stood down because they thought that otherwise public confidence in the magistrate’s ‘impartiality, independence or integrity’ might be impaired.

The press says that the magistrate has a history.  He had said that a rape victim complaining the next day had shown ‘buyer’s remorse.’  The Commission found this remark to be ‘highly inappropriate and offensive.’  It recommended that he be counselled by the Chief Magistrate.

The act

Since I had not heard of this body, I looked up the Judicial Commission of Victoria Act, 2016.

The act is very odd.  It may not have been written by people with long experience of conducting trials or preparing for hearings.  It says its purpose is to provide for investigations into judicial officers.  Yes – but to what end?  It says that people may complain about the ‘conduct or capacity’ of judicial officers and that the Commission must deal with the complaint.  It then goes on to describe facets of the process and investigation and the results.

But nowhere do I see the criteria by which the relevant ‘conduct’ or ‘capacity’ is to be assessed. 

The act is structured a la mode – tortured Snakes and Ladders.  Critical to the powers of the Commission is a finding of ‘proven misbehaviour’ (s 13).  It does not say what ‘misbehaviour’ is.  It is bad behaviour.  Nor does the act say by what standard such behaviour must be proved.  This may be because as is customary, the act (s 52) provides that an investigating panel is bound by the rules of natural justice but not by the rules of evidence. 

Well, the rules of evidence are not hard to find or apply, and most of them relate to fairness and logic – both of which are binding on the Commission. 

If the Commission refers a matter to the head of the relevant court, the act (s 19) says it must set out its findings of fact and ‘its assessment of the appropriateness of the conduct that it is the subject of the matter’ together with its ‘recommendations as to the future conduct’ of the officer concerned.

The act leaves at large what behaviour may not be ‘appropriate’ and what ‘misbehaviour’ may be.

The act (s111) says that the respondent is not entitled to reasons for an adverse decision.  Such reasons are not made public.  This is an example of the way the act juggles between the adversarial and inquisitorial modes.  In part it is a process like that of a French examining magistrate.  There is a tension there that a common lawyer will not be comfortable with.

Prescriptions on judicial conduct

The act enables the Commission to issue guidelines.  It has done so for sexual harassment, but not so far as I can see for judicial behaviour generally. 

The body representing judges here and in New Zealand, The Australasian Institute of Judicial Administration Incorporated, has issued a comprehensive Guide to Judicial Conduct, 3rd Edition, over the signature of the Chief Justice of the High Court.  I do not know if these are applied by the Commission.  I expect that they are.

The nine references in the act to ‘proved incapacity or misconduct’ presumably reflect that wording in s 72 of the Constitution.

The Guide refers to three guiding principles: impartiality, judicial independence, and integrity and personal behaviour.  For the most part, it is written clearly enough for litigants to understand it.

Some areas are tricky, and will remain so.  When judges are urged to show ‘discretion in personal relationships, social contacts and activities’, the Guide recognises that this is ‘likely to cause the most difficulty in practice.’ 

This is a delicate area to navigate, but fear of some kind of monastic sodality may be one of the two main reasons why judicial appointment is not as popular as it was two generations ago.  (The other would be changes in the law relating to superannuation.)

The Guide also says that ‘particular care should be taken to avoid causing unnecessary hurt in the exercise of the judicial function’.  Judges should try to act so as ‘not to diminish the confidence of litigants in particular and the public in general’ in the ability, integrity, impartiality and independence of the judiciary. 

The army has always had rules relating to conduct detrimental to the standing of the regiment.  It generally goes under the label ‘conduct prejudicial.’  It looms very large in contracts with professional sportspeople.  Their employer, even one as rough and ready as the NRL, cannot afford to be labelled as being down on gays.  (Especially if the antipathy is said to come straight from God.)

For similar reasons, the Guide says that judges are to treat people ‘in a way that respects their dignity.’  This does not come from the ethics of Kant.  Its genesis is more modern.  ‘For God’s sake, don’t say anything that gets us sucked into what some in the press call ‘culture wars’.  In other words, try not to be branded by others in the press with being ‘politically incorrect’’.

We in Victoria have other legislation that people outside the law might think should have a bearing on the duty and conduct of judges.  The Civil Procedure Act 2010 had as its purpose ‘to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.’ 

I do not believe that that act has achieved any progress in shortening litigation or making it cheaper.  On the contrary, both keep getting worse, in my opinion, and for that, the judges must accept responsibility. 

But the high purpose is still on the statute books.  The act is shot through with aspirations and commands meant to help shorten litigation and make it less expensive.  It is used to berate lawyers and litigants, but I am not aware of any instance where it has been held to impose a positive obligation on judges to behave so as to get better results.

Fairness to judges

The act appears to leave it to the Commission to make or find the rules on which they will make findings and give rulings on matters arising under the act.

Is this fair or sensible in a process that can destroy a reputation and livelihood, and actively lessen public confidence in the judiciary?

Put differently, are we satisfied that at common law and by long custom, we have established a canon or code of conduct of judges that gives us criteria for assessing an alleged failure of ‘conduct or capacity’ in a way that affords due process to the respondent and does not expose the judiciary to adverse action by a government agency that may impair the capacity of judges to discharge their duties?

Or, if the parliament was so ready to prescribe how litigants and their lawyers should behave in court, why not do so for the judges?

That is to consider the question from the side of the lawyers.  What about the public?  Are they happy to have the rules of the inquiry about the conduct of a lawyer settled by a panel of lawyers and rather than by their elected representatives? 

Again, to put it differently, how long will it be before you hear reference to the ‘pub test’?

The act may refer to impartiality, independence and integrity, and other essentials.  But where does the Commission find the power or right or duty to comment on behaviour as ‘inappropriate or offensive’ – two very highly charged labels of common disdain? 

And what if it becomes apparent that someone appointed does not have sufficient knowledge or experience to be a judge of the court they are appointed to?  Or what if they just don’t have the nerve?  Or character?  Or judgment?  Or what if they display an uncomely affiliation with some beliefs of the party in power – of which they were a prominent member? 

And what about those in government responsible for the appointment, or the policy formulation that led to it?

And what about the magistrate I referred to at the start? He has been taken out – publicly.  What does the punter think when he is reinstated?  ‘We had our concerns about him, but we have had a quiet word to him and he should be OK now.’

Let us say that there is a body that can certify a person’s standing, say as a jockey or trainer, that has no standing as an arm of government, but the decisions of which can affect the name or livelihood of people.  It sets up a process for the granting or withdrawal of that certificate that is very fair and sensible.  But it does not set out the criteria by which the decisions are to be made.  Has it discharged its obligations to afford due process? 

As a general rule, the government can only move to diminish my legal standing or damage my reputation – as it has done in the case of the magistrate I referred to – if it sets out my conduct complained of and the law or prescribed standard that it is alleged that I broke or failed to meet.

Did that happen in either of the cases involving the magistrate?

As matters stand, it appears to me that the act has the effect of making people subject to surveillance and liable to an adverse finding and derogation of status by a government agency basing its decision on what conduct the agency regards as inappropriate or misbehaviour.  I am not saying that the agency would be acting unlawfully, but that proposition does smack of regimes that we do not admire.  It does not come within our understanding of the rule of law that has been in place since 1215:

….no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. (A V Dicey, The Law of the Constitution, Macmillan & Co 1885, 172.)

Scope of judicial duties – and failures

Let us assume that the powers to make adverse findings on behaviour being bad or conduct being inappropriate validly derive from the act, the common law, and the parts of the Guide referred to above – either by undermining confidence in the system or by failing to respect the dignity of people involved in the process.

Failings like those could cover a very wide area indeed.

According to the most recent annual report, the top ten grounds of complaint were as follows (with percentages following): incorrect decision (20); failure to give fair hearing (16); failure to act in judicial manner (12); inappropriate comments (11); rudeness (8); bias (80); overbearing conduct (6); prejudice (5); denial of due process (4); and corruption (6). 

There is obviously some overlap there, but if you put to one side the first and last grounds (incorrect decision and corruption) and the third (which restates the question), most of the others look to come within Hamlet’s ‘insolence of office’ or ‘proud man’s contumely.’

Well, then: what about the law’s killer – ‘the law’s delay’. 

The Commission for that year received only two complaints about delay.

There is something seriously out of joint here.  Hamlet listed these trials that we face in life when contemplating ending his own.  Insolence or contumely from those in power are insulting and annoying.  But neither comes anywhere near to the damage done by delay in the law and the consequent escalation of costs. 

When I there speak of damage, I refer to the pain and injury suffered by litigants and witnesses, and to the loss of confidence of so many people in the whole legal system, including the judiciary.  

A body policing, if that’s the word, judges that says that they are dealing with failures of courtesy, but not delay and costs, is like a health clinic saying that they are good on cuts and abrasions, but people should not come to them about cancer or heart ailments, or other killer diseases.  The big items are above the pay level of these guardians. 

There’s not much point in having good table manners if the house is on fire.

Two cases

Let me mention two cases I know of.  Both involved delay, and one involved a complete breakdown in a disciplinary process directed at lawyers.

Nearly forty years ago, when I presided over the Taxation Division of the Victorian AAT, I heard cases involving licence fees on petroleum.  One involved complicated cross-border petrol transactions designed to evade state duties levied as licence fees – that the High Court later ruled invalid.   There was some very hard swearing and plenty of schemes and shams that raised nice legal issues about ‘interstate trade’.  I had to intervene heavily before the hearing to reduce the time of the hearing to a manageable period.  (I had a busy practice to run.)  It ran for five days – an all-time record for me.  I gave a decision after a few days.  (George’s Jet Gas v Commissioner of Business Franchises [1986] 1 VAR 194, 405.)

Counsel had said that the case could take weeks.  I had threatened to call my own expert – at the loser’s expense.  They then settled on some accounting issues.   But, as it turned out, the Crown had made an error of judgment.  They sought to play it again, but I declined.  I was still feeling my way a little in this tricky area, but it was out of the question that I could hear a case going for weeks.  Five days was far too long.  I never again allowed an agreed statement of facts.  The aura of unreality is reflected in par. 31 of the main decision.

The appeal to the Supreme Court was by way of rehearing – on issues of fact (credit) and law.  The judge who heard it in the Supreme Court reserved.  For two years.  

Any illusion of a fair hearing or due process on issues of fact had evaporated after about two months, at best.  The litigants would ring me pleading for my help.  In the meantime, the main member of the family died, and the High Court changed the law on ‘interstate trade.

That was disgraceful.

After about sixteen years running the Taxation Division, I was fired.  (That’s another story.) 

In the meantime, I had been appointed to exercise the powers of the CEO of the Metropolitan Fire Brigade under its act.  I had to set up and run a disciplinary tribunal from scratch to enforce laws that had never previously been enforced.  There were bound to be issues between management and the union, the UFU.  Discipline as a concept in that context was both novel and fraught.

The MFB was a statutory body that was an industrial minefield and a political death-trap.  It was effectively run by the union.  Sir Daryl Dawson, with whom I had read, told me that the MFB had been a regular source of work for him in the sixties, and a glance at the press now suggests that they still look like Hottentots tip-toeing about the edge of a live volcano.

After about ten years putting up with my being at it, the UFU decided that it did not want any more of this disciplinary process.  And it was suffered to die.  From time to time, I would tell management that they could get in trouble for doing nothing.  But there was a high turnover of CEOs, while that at the UFU remained constant.  Life tenure looks to be the new norm there.

After some years of silence, management got the courage to charge a firefighter.  He was charged with having obscene material on an MFB computer.  The material was vile for its abuse of other races and faiths – including Islam.  There was no defence.  It should have been disposed of in about two hours. 

It dragged on for days as the government intervened in the tribunal process.  The accused did not turn up on day one.  On day two, senior counsel for the accused said the accused had not been there because he had a message from the minister’s chief of staff saying that the matter would be adjourned.  It’s just that no-one asked the tribunal or was told of its hostility to any kind of adjournment.  No-one seemed to question the propriety of this kind of political interference in a statutory process that was meant to be both public and independent.  They all just looked serenely stupefied, like stray cats that had found their way into a kennel. 

At one stage I asked a simple question of those in charge of the prosecution – one that a police sergeant would have come straight back on.  Six lawyers left the hearing to consult – for quite some time.  Six of them.  As I recall it, I was left to discuss Hamlet with counsel for the accused.  This was an appalling fiasco in an essential service.  The MFB was more dilatory than the union.  (And the government was faster than both – and me.)

The accused should have been fired, but I thought that would mean he was paying the price of dreadful incompetence on both sides.  Instead, I was fired. 

Some smarty must have told the MFB that this kind of dirty work is best done after dark on a Friday night – of course, no one gets fired from the Elysium on Eastern Hill: or, for that matter the UFU – so I got the pink slip by email on returning to Malmsbury one Friday night after an outing in the city for an hilarious performance of Mozart’s Il Seraglio.  (Those at the MFB may have known that I don’t do Twitter.)

I then had to sue them to recover my retainer, which I did with interest and costs in proceedings in the Magistrates Court (where you have to turn up for a compulsory conference in a debt collection), but only after the Brigade had spent many thousands of taxpayers’ dollars in taking every dud point that vacuity could unearth as they trashed any possible suggestion that the Crown should behave properly in litigating with one of its subjects. 

Then they complained that I had acted unethically in publishing accounts of a public hearing.  That too was groundless.  But it took those responsible about two and a half years to get round to dismissing it. 

Two and a half years under the guidance of the relevant government department, the Legal Services Commissioner. 

The whole and express object of the MFB was to get me to shut up.  They were trying to get by the back door the non-disparagement clause that I had expressly refused to sign for reasons that they well knew.  They dread public knowledge of what they do.  They are like bats in fear of the light. 

The legal regulator adopted a form of inquisitorial process rarely seen south of Gibraltar.  It is appalling that it took years to dispose of this nonsense.  I was never confronted by the accuser.  There was never a hearing.  My counsel could not therefore examine their sources of evidence.  We just had to keep responding as whoever was directing this process continued to shift the goal posts and alter their line of inquiry – or attack. 

You will understand how often the name of Kafka was invoked at our end.  (You will recall that The Trial begins: ‘Someone must have traduced Joseph K, for without having done anything wrong, he was arrested one fine morning.’)

Eventually someone I had never heard of or seen put his name to what was said to be a decision.  Well before the time of James Comey, my decision-maker decided that while dismissing the complaint, he should take a swipe at me personally.  My recollection – which is far from flawless – is that he concurred in thinking, and saying, that I really should not have put a post on my website to the effect that the MFB had now overtaken 36 Collins St (the Melbourne Club) as the most exclusive men’s club in the State of Victoria. 

The complete aura of lassitude and incompetence was very unsettling and demeaning.  That of the MFB was matched by that of the legal regulator.

By what I saw of the MFB, it must be one of the worst run statutory bodies in the nation.  At one point in the last case, a lawyer rang me saying that he was ‘a trusted adviser’ of the board of the Brigade.  That was interesting.  Until then, I had not heard of the board.  For about twelve years, I was vested with the powers of the CEO over discipline in a statutory corporation of an essential service, and not once did any member of the board feel the need to talk to me.  This was my first piece of evidence that a board of the MFB existed.

Those who think that professional bodies cannot be trusted, or be seen to be trusted, to manage their affairs without intervention from government, might look into this case.  For me it was a pest – of a kind I was used to.  And I had very good advice and support from my solicitor and counsel. 

What about some struggling newcomer who has just arrived in practice?  What about a magistrate or judge faced with a challenge of a kind that does not come from within their playbook?  Do people on the Commission know that it’s like to be confronted by a force you cannot see?  Or be subject to the vagaries of a system that leave you feeling utterly powerless?  Or be trapped in a process that leads you to believe that no one knows what to do?  Or cares?

Now, I have gone into those two cases in some detail for three reasons (apart from the pain that each caused me). 

First, we have a reminder that tribunal members are not judges and do not have the tenure or protection of judges provided by the Act of Settlement, an essential part of our constitutional settlement.  I do not suggest that they should have that tenure, but they are amenable to government pressure in ways that judges are not, and some behave or misbehave accordingly. 

On the other hand, the insecure ones, like the untenured part-timers, are those closest to being influenced by government, and they may not be improved by being aware of being under surveillance by government for conduct unbecoming.  Only God knows what the justices of previous generations would have thought of all this government intervention in their offices.

Secondly, we can understand why governments get toey about professional bodies being left to police their own professional obligations.  But experience suggests things may only get worse if government interferes in the process in what government understands to be the public interest.  The alliance between a profession and the public service tends to be both gelatinous and unholy.  For that matter, the history of government in policing capital markets has not been happy in this country.  The corporate regulator cannot seem to attract the right people, and the regulator is seen to be dynamite on the small fry, but of not much use where they may be most needed.

Thirdly, and very relatedly, we are witnessing the death of an independent civil service.  Where the law intersects with the executive, in any of its guises, there may be breakdowns in efficiency, if I may put it that way. 

There may also be head on collisions with politics.  A body like VCAT is not a judicial body: its members do not exercise the judicial power of the state.  It is an arm of the executive that must inevitably be much closer to government policy issues than judges can ever be comfortable with.  The implosion and destruction of the federal AAT was a hideous example of what happens when people who are supposed to be independent of government get too close to government.

That is why I do not think that it is appropriate for a justice of a superior court to be in charge of this body.  It is like having a sitting justice hear a Royal Commission – something they refuse to do point blank.

Judicial morale

Courts and tribunals are like law firms, hospitals, and football teams.  Everything turns on morale, teamwork and leadership.

It is not hard to see how external surveillance may disturb morale.  The members of the team might keep looking over their shoulders to see what a government agency might think about their conduct. 

Then one day a judge may turn up for work and get a letter from the government saying that the Commission had received a complaint about him or her, but had dismissed it.  And this was the first that the judge has heard of the complaint.  Kafka and Orwell were right, after all.  And think of how that may have gone down with, say, a member of the Starke family.

Take the team leaders in the courts.  They are now deputies of a government agency which is there to police standards fixed and determined by that agency.  How can they square that duty with leading their team?  Independently of government?

Do you recall the shambles when the captain of the Australian XI became part of management?  The nation was appalled, and Michael Clarke never recovered.  Australia lost a series 4 nil after four players were suspended for failing to do homework set by the coach.  Mature adult leaders in their field were being punished by a regime of which the team captain was part.

In any hierarchy, there will be tensions.  Having acted for a number of Anglican priests in dealing with theirs, I can say that their bishops have a job that no one would want.  To put it softly, they are not well liked.  My firm advice to the priesthood was that the first thing they should do should be to form a union.

My impression is that morale is low among magistrates, and possibly worse in the County Court.  (It can even drop in the superior court when those in Canberra get ethereal.  Which they do from to time, when none of them now has, I think, ever directed a jury in crime or anywhere else.  At least I got to appear in a few jury trials.) 

The politics of my appointment to head the Tax Division were that since appeals from that division were to a single judge of the Supreme Court, it was not appropriate for a County Court judge to deal with them.  Relations now between the County Court and the Court of Appeal are at a very low ebb.  They have never been good. 

It is a sad fact of life that some appellate judges are remarkably insensitive about the feelings of those they are commenting on.  It does not help that too many of those judges have never done time at the relevant coal face. 

And when judges get roughed up, the tradition in any kind of public service is that they pass that on to the next level – here, the Bar or magistrates.  We are reminded of the American aphorism about appeal judges – they are the ones who hide out in the hills when the battle is on – and then come out to finish off the wounded

You can, I gather, see the problem better with serious injury cases.  It is the first step in a personal injuries action.  It should be dealt with in a couple of hours with judgment on the spot.  Instead, there are affidavits, bundles of expert reports, a silk on either side, and judges’ reserving, giving judgments up to fifty pages or so, sometimes a year or so later. 

Why?  The main reason is that there is an appeal as of right to the Court of Appeal (no member of which is likely to have ever heard such a case) and the trial judges feel the need to act and write defensively. 

This is a form of madness that feeds a very greedy gravy train for the lawyers.

VCAT is in its own realm of insecurity.  Its members have no tenure.  They are on time-contracts.  Can they afford to offend government, which is their boss? 

And the pressure on them from government in matters such as FOI or town planning can be heavy.  I have seen it with my own eyes.  It is very unsettling.  

I referred to the collapse of the federal AAT above.  That followed conduct of corruption at the highest level of government, but the pressure generally is more insidious and less visible.  And I doubt whether the Judicial Commission can deal with that kind of attack on the impartiality, integrity and independence of the members of that tribunal.

It now looks to me that the creation of a second tier and second class of government dispute resolution, transferring the work from the judiciary to the executive, was a mistake.  But there is no chance of that mistake being corrected now. 

Well, one option would be to give it more work.  Starting with serious injury cases and limiting rights of appeal to those at least as stringent as those set for the High Court.

Delays in litigation

There are three kinds of this delay – getting the issue to hearing; completing the hearing; and getting a decision.

The first is a matter for the rules of court and the extent to which the judges want to stick with court’s managing the case – which adds to time and expense – and go on with those frightful witness statements, or brawls about pleading and discovery.  People have been bleating about our time wasting for years – and nothing gets done.  We spend all that time on getting the matter set up for hearing – when that energy would be better applied in fixing times during the hearing.

Although the head of the court is responsible, these are issues for the court as a whole – and are hardly amenable to a body like the Commission.  Among other things, the heads of the court would be sitting in judgment on themselves.

Nor do I think that the scheme for the conduct of the hearing within the courts is a matter for the Commission.

But delay in giving judgment certainly is.  The case of delay I mentioned was an offence against humanity.  I referred to the Civil Procedure Act.  Its purpose is to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.  The judges speak of treating people with ‘dignity.’  Whatever judges do when they take too long to decide, they are not treating people justly or with dignity.  The case I referred to was a wanton betrayal of trust and a spurn of patient merit – for which the court as a whole should be ashamed. 

It is still now, and it has been so since 1215, part of our law that the Crown must not deny or delay justice – and justice delayed is justice denied.

The court could set times within which judgment should be delivered.  I would suggest a month.  A couple of failures could be dealt with in discussion.  After that, the discussion should get very serious.  Judges who cannot meet those requirements should consider whether they are in the right place.  The court should maintain a list of outstanding judgments with times.  That list, and the suggested time limit, should be publicly available.  It would also help if the court published a statement of the hours spent in court by its judges.  The buzz word is transparency.

And that regime should come within the ambit of the Commission.

I heard cases for over thirty years on a sessional basis.  I had to fit in this public duty work while carrying on a busy practice.  I was certainly not there for the money.  I doubt whether the daily rate for tax cases ever reached the hourly rate of my own practice (which some of the commercial partners in my firm were prone to notice).

After a year or so to get my eye in, I followed a scheme that I formulated to deal with hard tax cases as follows.

The Crown would refer its disallowance of an objection to an assessment to me.  I would say that we would resolve it within six weeks.  I would fix a hearing date in about four weeks’ time.  There would be no prior hearing or directions or witness statements.  We would usually finish the hearing before lunch.  If necessary, I would fix times for the examination of witnesses and submissions.  I would try to give my decision on the next working day.  We applied that model to most cases for about fifteen years. 

A lot of lawyers grizzled, groaned, protested, and appealed.  I never once heard a complaint from a litigant.  The Crown appealed as of course and as of right almost every case they lost.  They had a legitimate interest in getting a ruling from the Supreme Court.  In the end, three of mine were dealt with by the High Court. 

I have never understood why decent judges get so uptight about what happens on appeal from them.  It never troubled me.  As often as not, I did not even get to hear to hear about it.  I was intent on expedition – fairness, of course, but at a properly controlled speed.  Lord Mansfield knew the truth.  Most delay in litigation comes from the lawyers.  No litigant with a good case wants delay.  Delay suits those with power and wealth. 

In 1215, the English Crown acknowledged that justice delayed is justice denied.  In my, view the fall from grace of our trial lawyers and systems has come from our failure to deal with delay.  It is partly a failure of nerve and partly a sustained flirtation with the inquisitorial – which as a matter of simple but long history is not the way we practise the law. 

Well, all that in me sounds like a broken record – but it does hurt other people more than me.

In a very politically charged public inquiry I conducted in 1992, the following occurred.

Predictably, boxes of documents on trolleys started to arrive.  The lawyers were talking about the proceedings lasting for months.  They thought that the hearing would last for four months of itself and that it would take many, many months to get to that stage.  This was out of the question.  The other members of the Commission had lives to lead – and so did I.  We told them to convert an elastic quote of four months to a fixed one of four days and that we would start soon.  There was a degree of posturing and expostulating that you expect from lawyers when you tell them to get on with it.  …. What we had to do in the hearing itself was what a court has to do – we had to distil the issues, that is, settle the questions to be answered.  Through the hearing we progressively narrowed propositions of fact that were not in issue.  I will never allow agreed statements of fact – they are inherently only as trustworthy as the parties and the lawyers submitting them – but we developed a list of allegations of fact that were conceded.  ….. We were able to express our reasons in plain terms with no reference to legal authority at all.  In the end, the substantive hearing took four days, not four months.  The notice of appeal was given on 31 July 1992 and the final decision was given on 23 September 1992. 

The point is simple.  It is up to counsel to present their case to the court.  But it is up to the judge to deliver a fair trial and to conserve valuable court time.  To do that, they may need to be firm with counsel who are incompetent or just long winded.  If judges can be put off doing that job, then the bad position we are in now will only get much worse.

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’

We are supposed to be a learned profession – standing up for those we have the honour to represent, and helping to maintain the justice system that we have the privilege to serve.


The Commission is not backward in stating its mission.

We exist to ensure an exemplary legal system for all Victorians. Through our work, we cultivate superb judicial behaviour, support complainants and create a fair, esteemed and accessible legal sector.

My impression is that most Australians have a justified confidence in the integrity of their judges, but that very few of them have much confidence in the efficiency with which their justice is delivered. 

Australians tend to take integrity for granted with their judges.  They expect them to be fair, sensible, independent of government, and up to the job.  Most of them are fair and sensible.  And most of them are independent of government.  But too many of them are not delivering justice within a time and at a cost that most Australians might decently expect from their judges.

If a body like the Judicial Commission cannot confront the serious problems of delay and costs in litigation, is it there for anything much more than window dressing?

The conclusion I draw is that the Commission does not matter where it counts.  The lawyers, judges and, above all, the people of Victoria, deserve more.

Opinions may differ about whether a government should claim the power to tell judges how they should act.  My instincts, informed by both practice and learning, are firmly against it.  But if you are to have such an agency, it is just wrong that its main task is not to deal with the cancers of litigation.

Judicial Commission – Legal Services Commissioner – County Court – Supreme Court – Magistrates’ Court – delay in litigation – lawyers – legal costs.

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