A National Curriculum for Australian Judicial Officers
Unit Three Judicial Management in the Courtroom
Rationale
Judicial officers need to manage the cases before the court over which they preside, the court room itself, and their other work outside the courtroom. Management of civil and criminal cases requires both list and case management skills. Case management is one of the hardest aspects of judicial life because of the need to develop “quick-fire” skills, especially in the magistrates’ or District courts. For example, in magistrates’ courts it is common to find many matters listed for guilty pleas. An inability to make reasoned and quick decisions will delay the day’s list. The juxtaposition of the need for quick decisions and for the defendant to understand the court process and the result of the case means that judicial officers need special skills in management of the list. In the same way, the need to avoid matters being part-heard, whenever possible, is also part of good case management. In addition, judicial officers may encourage the resolution of disputes by alternative means as part of their case management strategies.Aim of this Unit
Professional development activities should help judicial officers –
- manage the cases before their court
- manage the court room over which they preside
- manage their work outside the courtroom
- understand and facilitate the use of alternative dispute resolution mechanisms
- where appropriate, use alternative dispute resolution mechanisms.
Application of the Core Dimensions
Substantive and Procedural Law
Programs may cover civil and criminal procedure and any relevant substantive law.
Judge Craft Skills
Programs may cover how to use procedural law to ensure effective management of cases; managing large and complex litigation; how to manage difficult litigants; effective communication in the courtroom; the effective use of technology in court.
Social Context
Programs in this unit may cover how social, cultural or religious considerations might affect judicial officers’ approach to in-court communication.
Attitudes and Values
Programs in this unit may wish to include a consideration of how personal attitudes and values shape a judicial officer’s response to and perspective on the intricacies and time pressures of managing a busy list.
Core Judicial Qualities
Independence
The courts remain independent of the other branches of government and judicial officers are not subject to improper pressure or influence when making decisions. 10
Programs
3.1 - Pre-trial Management for Civil Cases
Aim
These programs help judicial officers to manage effectively the pre-trial stages of civil cases. Programs will deal with issues which are particular to specialist courts, such as the Family Court. Some programs will provide information on alternative dispute resolution (ADR) techniques, the types of cases suitable for referral to ADR, and at what stage cases should be referred to ADR.
Scope
The programs could encompass
- legislation relevant to pre-trial management for civil cases
- the challenges and problems which can arise pre-trial in civil cases in areas including
- discovery
- admissions
- pleadings
- experts and experts’ reports pre-trial
- and techniques and procedures for dealing with these challenges
- efficient list management
- interlocutory applications
- ADR techniques
- Skills in determining which cases suitable for referral to ADR, both within and outside the court, and stages in a case where referral to ADR could be suitable
- using ADR techniques in the management of cases, including settlement of cases.
The Judicial Role
The major focus of these programs is the efficient management of cases, the court room and judicial officers’ work outside the courtroom.
Judicial conduct and ethical issues may arise.
Footnotes
- Without Fear or Favour: Judicial Impartiality and the Law on Bias: Australia needs to address “a lack of co-ordination and an absence of resources to plan and develop systematic judicial education programming”, as was the central challenge facing Canada approximately 15 years ago. (p63).
- The 2007 report ‘A Curriculum for Professional Development for Australian Judicial Officers’, prepared by Chris Roper, AM
- For a complete list of references, please see Annexure A.
- National Standard for Professional Development for Australian Judicial Officers 2006, adopted by the NJCA and endorsed by the Council of Chief Justices, the Council of Chief Judges and the Council of Chief Magistrates, as well as the Judicial Commission of New South Wales, the Judicial College of Victoria, the Australasian Institute of Judicial Administration, the Judicial Conference of Australia and the Association of Australian Magistrates. A review of impact of the Standard was undertaken in 2010 by Christopher Roper.
- For an additional discussion of this issue, see speech by former Chief Justice Robert French, Judicial Education - A Global Phenomenon, The International Organisation for Judicial Training, The Fourth International Conference on the Training of the Judiciary, Sydney, 26 October 2009
- Attaining Judicial Excellence: A Guide for the NJCA, 2019
- The Honourable Justice J Allsop AO, Continuing Judicial Education: the Australian experience, Judcom, Handbook for Judicial Officers – the role of judicial education
- Justice Stephen Gageler, Keynote Address, NJCA 20th Anniversary, 8 December 2022
- Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and The Law on Bias, ALRC Report No 138 (December 2021) at [12.78]
- See Forge v ASIC (2006) 228 CLR 45, 80 (Gummow, Hayne and Crennan JJ) (‘judicial independence refers not only to independence from the Executive, it refers to independence from other sources of influence’); Rebecca Ananian-Welsh and Jonathan Crowe (eds), Judicial Independence in Australia (Federation Press 2016); Rebecca Ananian-Welsh and George Williams, ‘Judicial Independence from the Executive: A First Principles Review of the Australian Cases’ (2014) 40(3) Monash Law Review 593.
- Alan Rose, ‘The Model Judiciary – Fitting in with Modern Government’ (1999) 4 The Judicial Review 323, 326. See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [80] (Gaudron J) (‘Impartiality and the appearance of impartiality are so fundamental to the judicial process that they are defining features of judicial power’)
- TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 [27] (French CJ and Gageler J) (the judicial process involves ‘…observance of the rules of procedural fairness.’)
- The Hon Stephen Gageler AC, ‘Judicial Legitimacy’ (2023) 97 Australian Law Journal 28, 28, and Appleby and Roberts, “Studying judges: The role of the Chief Justice, and other institutional actors”, and “The Chief Justice Under Relational and Institutional Pressure, ” Cambridge University Press 4 May 2021
- See Australian Law Reform Commission, Report 89: Managing Justice (2000) 190 (noting that judicial education can create ‘economies of scale and other matters relating to efficiency.’)
- See Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J) (‘the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hallmark of judicial as distinct from administrative procedure.” To require a court invariably to sit in closed court is to alter the nature of the court’); Commissioner of the Australian Federal Police v Zhao (316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ) (‘the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.’)
- Sir Gerard Brennan, ‘The State of the Judicature’ (1998) 73 Australian Law Journal 33, (‘If we are to be governed by the rule of law, we must have a judicature to administer it. The characteristics of that judicature reflect the functions it is charged to perform…[It] must be a competent judicature; there must be judges and practitioners who know the law and its purpose, who are alive to the connection between abstract legal principle and its practical effect, who accept and observe the limitations on judicial power and who, within those limitations, develop or assist in developing the law to answer the needs of society from time to time.’)
-
Three I’s: Independence, Impartiality and Integrity
- Judicial Legitimacy”, The Hon Justice Stephen Gageler of the High Court of Australia, a paper delivered at the 2022 AJOA Colloquium on 7 October 2022.