An Article by Justice Ann Ainslie-Wallace, Family Court of Australia, Chair of Power Imbalances in the Court Committee.
“Judicial bullying, in whatever form, should not be tolerated or excused on the footing that ‘it was ever thus’”, that it is just the way he or she is or that the judge is a good lawyer.
Pressure of work, the number of self-represented litigants and diminishing or inadequate judicial resources adds significantly to the burden of a judge already working under pressure. It is equally well accepted that whatever the personal or professional pressure faced by a judge, there is no place for bullying behaviour by judges not only in the courtroom but towards staff and other members of the court.
Such things are very easy to say, but it is much harder to define the line that separates robust conduct from bullying. What do you do when you see it in others? Indeed, how do we know that we are not bullies at times?
In 2018 following a survey of Victorian Barristers, inappropriate judicial conduct was defined as conduct:
… by a judicial officer, in his or her capacity as a judicial officer, that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person.
When speaking to Lawyers Weekly about the occurrence and impact of judicial bullying on solicitors and counsel, Bar Association of Queensland president Rebecca Treston QC said:
I think it’s a common experience that by far the majority of judicial officers conduct themselves with the utmost decorum, properly and fairly, so far as the advocates before them are concerned. So, it’s a very small problem, I think. Nevertheless, it’s a problem that I think we’re all aware can have a significant effect on people who are appearing before courts, because it is a workplace for barristers.
And if you are, you know, being shouted at, or pilloried or ridiculed, that can have quite serious mental health consequences. And I think we are just at the stage now where, as a community and as a profession, we just don’t think people should have to suffer those sorts of consequences, as a result of going to work.
In an article written in 2013, the Hon Michael Kirby AC CMG spoke of his experience as an advocate encountering rude and unpleasant judges and observed the similar experience of Ian Barker QC who wrote of the New South Wales Court of Appeal in hearing an application to remove the name of a barrister from the roll and the conduct of the judges hearing the application:
The responses of [the appeal bench] during argument in the application, that they disqualify themselves, was sarcastic, contemptuous and personally abusive of counsel. As observers saw it, the conduct of the two judges… was a disgraceful display of judicial savagery.
Every judge and every barrister can recount a story of a judicial bully, of sarcasm, belittling comments and ad hominem attacks, and everyone who has experienced it shudders to recall it and yet the conduct continues, as a recent survey conducted by the Victorian Bar Association made clear where one response noted: “[j]udicial bullying is alive and well”.
Conduct which distracts and impedes a party in presenting his or her case can give rise to an apprehension of bias and impair a fair trial. It can lead to appeals with the concomitant additional costs, anxieties and stress and does nothing to commend the legal system to the litigating and wider community.
In their article on judicial bullying, Ms Gabrielle Appleby and Ms Suzanne Le Mire said:
… [i]t is also likely to damage the confidence of litigants and other members of the public who witness the interactions [of judicial bullying]. In addition to the likely impact on the audience, such comments raise the issue of the extent to which they betray bias that affects the outcome of the case.
With this being noted, it is important to ask ourselves:
- How do we distinguish between robust exchanges with advocates and questions asked to illuminate the issues between unnecessary and unhelpful interference lending itself to appellate intervention?;
- How do we know if we are in fact bullies?; and
- What do you do if you believe a colleague is bullying litigants, lawyers or staff members?
The National Judicial College of Australia (NJCA) is developing a Power Inequalities in the Court program in which these issues will be explored against a context of scenarios taken from real cases and in which judges will work together to explore the issue and look at ways of recognising and avoiding becoming a judicial bully.
 The Hon Michael Kirby AC CMG ‘Judicial Stress and Judicial Bullying’ (Speech, Melbourne Wellness Conference, 21 February 2013) 10.
 The Victorian Bar Council, Judicial Conduct Policy (Discussion Paper, October 2018) 1.
 Jerome Doraisamy, ‘The time is right for a judicial bullying policy in Queensland’, Lawyers Weekly (online, 16 July 2019) <https://www.lawyersweekly.com.au/wig-chamber/26090-the-time-is-right-for-a-judicial-bullying-policy-in-qld>.
 Ian Barker, “Judicial Practice” (Ch 22) in The Hon Michael Kirby AC CMG ‘Judicial Stress and Judicial Bullying’ (Speech, Melbourne Wellness Conference, 21 February 2013) 9.
 Quality of Working Life Research Group, The Victoria Bar – Quality of Working Life Survey: Final report and analysis (Report, 2018) 22; Freya Michie, ‘Almost two thirds of Victoria's barristers say they're bullied in the courtroom’, ABC News (online, 18 October 2018) <https://www.abc.net.au/news/2018-10-18/barristers-complain-of-bullying-judges-and-magistrates/10393470>.
 Gabrielle Appleby and Suzanne Le Mire, ‘Judicial Conduct: Crafting a System that Enhances Institutional Integrity’ (2014) 38(1) Melbourne University Law Review 16.