What happens when a judge doesn’t measure up

March 25, 2006 |

The Australian and the Age are running a story about Federal Magistrate who has stood aside for, on the face of it, a fairly damning case of plagiarism. They are virtually salivating over it. A sign of the times.

Judges meeting a sticky end happen occasionally but when compared to the number who serve for years and retire without incident is a  miniscule minority.  There will always be cases of personal foibles such New South Wales Supreme Court Judge Jeff Shaw’s collecting a car when tired as a newt, or failing to file a tax return and being prosecuted for it, as happened to Victorian County Court Judge Kent in 2001.  The consequences are almost always more severe than are visited on John Q Public.  Sometimes they are quite draconian outcomes.  They almost invariably walk the plank before being pushed by the Parliament.  There are those very rare cases of judicial officers living in the grey areas, as happened with Justice Yeldham and his high risk, as far as representing the human face of the judicial process, lifestyle and the the New South Wales Chief Stipendary Magistrate Murray Farquahar who ended up a convicted felon .  That is less understandable or forgivable.  Yeldham suicided when subpoenaed to appear at the Wood Royal Commission. Farquahar served time and then The Queensland judge Anthony Vasta was removed in 1989 in the wash up from the Fitzgeral Royal Commission in Queensland.  There was more than a touch of political payback there by the incoming Labor Government . 

Non performing judges and other judicial officers are exceptinally rare occurences. We are served well by our judges.  But given the place they occupy on the public landscape when they fall over, when they fall over the sound reverberates.  The front pages of the newspapers go into overdrive and put judges front and centre in the political debate.  Often it is overkill but sometimes it highlights some of the problems practitioners feel.  Delay is front and centre for litigants and lawyers.  One of the worst example for me, as a practitioner, was that of Vince Bruce, a New South Wales Supreme Court judge, took 2 years to write a judgement in the Copper IUD class action.  That delay was apparently symptomatic of the manner in which he handled cases.  He cited illness and had an utterly cringe-worthy interview on 60 minutes to save his job.  There are plenty enough delays in litigation, with its associated costs, to give plenty of grist for the Australian’s mill (read complete ideological obsession) about the process without this sort of nonsense. Delays are the curse of our system and there is plenty of room for improvement. 

Today’s report in the Age Federal Magistrate Rimmer standing down because of serious delay and, a new one for me, plagiarism is serious.  Unfortunately there is no guarantee when appointing a person to judicial office to know how the appointment will turn out.  Almost invariably judges live up to expectations, often exceeding them.  Making sense of what Parliaments claim to be legislation sometimes takes the wisdom of the ages.  Conservative commentators like Janet Albrechtson whinge about judicial activism but there is no alternative. 

The bigger problem, from my end of the bar table, is when judges become bored, tired or just plain grumpy.  That can lead to a slippage in quality.  It also gives plenty of work for Court of Appeal.   The Victorian Court of Appeal’s decision this month in VCP Investments Pty Ltd & Ors v J McCubbin & Sons Pty Ltd & Ors highlights the frustration of dealing with sub standard decision making.  It is not often you get Appeals judges letting loose as they did here.  It didn’t involve swearing but it wasn’t far off it, in legal speak at least.  Sounds like they had good cause to be annoyed.  Not the County Court’s finest hour.

So what to do.  The Law Report did one of its usual talkfest in 2001 in the wake of Judge Kent’s resignation with the usual suspects including that media commentator/tart George Williams (who occasionally makes sense – when he moves away from base polemics masquerading as legal analysis) waxing lyrical about judicial commissions and Victorian Attorney General Hulls talking about establishing a transparent process of investigating complaints.  Nothing much happened.  Justice Kirby waxed lyrical about it in his lecture about the issues, the balancing act and the options in his paper titled  Judicial accountability.  Removing a judge is about as hard as it gets.  And so it should.  It traditionally involved bringing him or her to the bar of the Parliament. Now judicial commissions are all the rage.  It should always be very difficult to remove a judge.  Given the legislatures desire to ride rough shod over civil liberties thathave developed over hundreds of years having a fearless and independent judiciary is vital.  Just look at the wimpishness of the Commonwealth AAT in authorising wiretaps by the bushel load to see the difference in attitude between independent judicial officers and those holding fixed term appointments. 

Then again there should be some form of resolving a problem beyond two options, quarantining the judge and hoping a retirement is in the offing or removing him or her. Its hardly ever an issue of honesty or criminality.  The real problem is how the courts handle judges who are dissatisfied, bored or not managing the huge workload.  In the public service, where sacking is still next to impossible, people who don’t perform are given “special projects”.  The worker is given next to nothing to do and hopefully he or she will get frustrated and walk.  It almost always works.  People generally want to do something useful.  Boredom is a killer.  Tight budgets and full lists make that option less appealing for Chief Judges and Justices when dealing with their bretheren.  Why not give an unhappy judge an out, either a long sabbatical or some means of returning to another life, even if temporarily, if they so chose. Recharging the batteries and a bit of think time can only help.  There is some limited study leave and sabbaticals but hardly deals with the issue.

Given the ridiculous obsession of the Australian in hunting down any foible in the legal system it would be good if a range of options were available.

A matter of watch this space methinks.

 

 

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