Griffiths, Justice John --- "Some ethical issues: a view from the Bench" (FCA) [2012] FedJSchol 26

The Law Society of New South Wales

Ethics Department of The Law Society : Ethics Forum

Venue: The Law Society of New South Wales

13 August 2012

The Hon. Justice John Griffiths
Judge of the Federal Court of Australia

Some Ethical Issues: A View from the Bench

I have been asked to comment on some relevant ethical issues of likely interest to this audience. I start with an immediate disclaimer. I have only been a judge of the Federal Court for four months so what I have to say draws as much on my experience at the Bar as it does on my limited time on the Bench.

I propose to deal with the following three topics, which overlap to some extent:

• some ethical issues relating to the Federal Court’s docket system;
• dealing with self represented litigants; and
• the importance of professional courtesy and civility.
  

The Federal Court docket system
The Federal Court docket system can give rise to important ethical issues for legal practitioners. The issues are not necessarily unique to the Federal Court. They have potential relevance to dealings with the chambers of any judge (see, for example, R v Fisher [2009] VSCA 100; (2009) 22 VR 343), but they are probably more likely to arise in the Federal Court because of the nature of the docket system.

Since 1998 the Federal Court has conducted what may be described as a unique case management system. When a proceeding is filed in the Court in which the relief sought will follow a trial, the proceeding is assigned to a judge for the management of the proceedings and for the hearing of the trial. Thus, the judge to whom the proceeding is assigned bears responsibility for managing the proceeding from start to finish.

The key elements of the individual docket system are:

• cases are randomly allocated at commencement to the docket of the next judge in a rotation (unless there is a specialist panel);
• cases so allocated ordinarily stay with, and are managed by, the same judge from commencement through to disposition;
• there is a model time frame for key case events to occur, encouraging minimum appearances with maximum returns is adopted;
• there is an emphasis on active judicial management, including the monitoring of parties’ compliance with directions and maintaining regular contact with parties regarding the progress of the case; and
• there is also an emphasis on the earlier and more effective identification of cases suitable for alternative dispute resolution.
  

The docket system allows the parties to contact the associate to the docket judge. It is evident that this opportunity is sometimes misunderstood by practitioners and used inappropriately to circumvent obligations to obtain leave or abridge time (see, for example, FWR Enterprises Pty Ltd v Hawkins [2005] FCA 579 at [31] – [34]). There have also been a number of cases where contact with a judge’s chambers have subsequently led to applications being made to have a docket judge recused for apprehended bias (see, for example, Perre v Apand Pty Ltd [2004] FCA 1116). These matters highlight the need for practitioners to understand and adhere to the following core ethical requirements in communicating directly with the chambers of a docket judge.

First, while noting that such contact will usually relate to matters of practice and procedure, in the absence of exceptional circumstances (such as the proposed making of an ex parte application), any such contact should only occur with the knowledge of the other parties to the litigation. If the communication occurs in writing, such as by way of email, it should be copied to the other parties simultaneously (see Porter v APRA [2009] FCA 1148 at [20]).

Secondly, unless the other parties have given their express prior consent, written communications should not include information or allegations which are material to the substantive issues in the litigation.

Failure to abide by these basic requirements can have serious consequences. They are well illustrated in litigation between Comcare and John Holland Rail Pty Limited. At first instance, an application was made for the docket judge to disqualify himself for apprehended bias (see Comcare v John Holland Rail Pty Limited (No. 3) [2011] FCA 164). The application was made following certain communications between the Judge’s associate and the applicant’s solicitor, which occurred without the prior knowledge or consent of the respondents. The communications involved the applicant’s solicitor seeking to have the matter listed for mention. The associate passed on the applicant’s request to the Judge, who determined to convene a mention. Neither the Judge nor his associate were aware that the respondents opposed the matter being listed for mention. The respondents sought the Judge’s recusal on the basis that it was alleged that the Judge knew that there had been a communication between his associate and the applicant’s solicitor without prior knowledge or consent of the respondents. This was said to give rise to a reasonable apprehension of bias. It was also asserted that the docket Judge had become a witness in his own cause because of a statement he made at the commencement of the hearing of the application for his recusal in which he described the events which had occurred and the nature of his and his associate’s involvement and knowledge.

The docket Judge refused to recuse himself and the matter was taken on appeal (see John Holland Rail Pty Limited v Comcare [2011] FCAFC 34). The Full Court’s decision contains a helpful summary of the relevant principles guiding contact by practitioners with a docket judge’s chambers. It also deals with the circumstances in which such conduct might give rise to a reasonable apprehension of bias on the part of the docket judge. The principles and guidance may be summarised as follows:

• there is no general rule that any unilateral communication by a party with a judge’s chambers is a serious impropriety which, if acquiesced in by an associate, could give rise to a reasonable apprehension of bias on the part of the judge;
• whether or not a unilateral communication with a judge’s chambers by a party or practitioner is improper depends on all the circumstances, including principally “its nature, subject matter and perhaps its sequence and extent”;
• there is no impropriety in a party’s unilateral communication with chambers in relation to procedural, administrative or practical matters, although a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason;
• save in unusual circumstances warranting an ex parte application, it is clearly improper for parties or their practitioners to attempt to communicate unilaterally with a judge’s chambers in relation to the substantive issues in the litigation. All such communications of this kind have to be circulated to, or be made in the presence of, the other parties unless those parties have previously consented to such a unilateral communication being made to the judge;
• breach of the principles stated immediately above would amount not only to an impropriety on the part of the party making the communication but may, in certain circumstances, be relevant to whether there is a reasonable apprehension of bias on the part of the judge;
• the mere making of a unilateral communication which gives rise to a presumption of impropriety does not give rise to any onus to prove the contrary by means of affidavit of some other similar level of proof;
• for there to be a reasonable apprehension of bias, it would ordinarily be necessary to establish that the impugned material was received by the judge personally;
• merely because an associate has received an improper unilateral communication in the course of the operation of the docket system does not of itself give rise to any impropriety or breach of duty on the part of that associate, but that could change if the improper unilateral communication is transmitted to the judge. Chambers staff are expected to assess communications forwarded to chambers and to manage the transmission or, where necessary, interception, of material and information which is directed to the judge, to avoid compromising the judge’s impartiality; and
• a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case;
  

The Full Court also indicated that:

• the unilateral communication of objectionable material to chambers staff is not tantamount to its receipt by the judge;
• such contact is unavoidable and involves no necessary impropriety on the part of the judge’s chambers staff; and
• such conduct is not, in itself, the basis for a reasonable apprehension of bias on the part of the judge.
  

The appeal in John Holland was dismissed with the Full Court concluding that, having regard to all the relevant circumstances, the test for apprehended bias had not been established.

Some particular issues with litigants in person

The operation of the docket system presents particular challenges where proceedings involve a litigant in person. Unlike legal practitioners, such persons cannot be expected to appreciate the limitations applying to direct contact with chambers. I have found that the safest course is to require that, in all proceedings involving a litigant in person, communications by all parties must be made in the first instance to the Registry and not to my chambers. It is then a matter for the Registry to decide whether or not to pass on any particular communication to my associate who then determines whether it needs to be transmitted to me.

The problems which can arise under the Federal Court docket system where self represented litigants are involved are well illustrated by a case in Justice Allsop’s docket before he became President of the Court of Appeal. His Honour was the docket judge in a matter involving a self represented applicant. The applicant telephoned the judge’s chambers and spoke to his associate about the need for him to have an extension of time in which to file and serve his written submissions on an order. He said he had been sick and needed five more days. The matter was due to be heard ten days later. His Honour decided to accede to the request and he asked his associate to notify the respondent’s solicitors to ascertain whether there was any difficulty. The associate rang the respondent’s solicitors and spoke to a junior solicitor who responded by saying that she did not think there would be any difficulty with the extension, but that she would talk to her supervising solicitor. The supervising solicitor then contacted the associate by telephone and indicated that the extension would not be a problem. Later in the day, however, the supervising solicitor rang back and told the judge’s associate that she was now concerned that there would be insufficient time between receipt of the applicant’s submissions and the hearing date. She asked that the hearing date be vacated and set down later in the week. At that point the associate advised the solicitor that if the hearing was to be vacated and another date sought the request would have to be put in writing. The solicitor became angry and rude and said something along the following lines: “So [the applicant] can get what he asks by phoning, but I have to put it in writing”.

The associate notified the judge of the conversation. He listed the matter for mention the next day to provide an opportunity for the respondent to apply for the discharge of his order extending time to the applicant for filing submissions and to make such other orders as they thought fit. His Honour also explained that he listed the matter to allow the supervising solicitor to explain her behaviour.

The solicitor apologised to the Court and to the Judge’s associate. The Judge accepted that apology but then said the following:

To have my associate spoken to like this by an experienced solicitor is simply intolerable. I have said in other contexts, also dealing with the behaviour of practitioners, that, of its own nature, litigation is a costly and stressful, but necessary, evil. No doubt the growing pressure of litigants in person, makes litigation practice more burdensome and more stressful. It does so for the bench as well.

Those circumstances, however, make it all the more necessary that practitioners display a level and degree of courtesy and civility in their conduct of litigation. Courtesy and civility are not bourgeois affectations. They are not the mark of the effete or inept litigator. They are part of a practitioner’s overriding duty to the court, indeed to the standards of the profession and to the public.

On the topic of ethical principles applying to practitioners’ dealings with unrepresented litigants, you might also like to note the following summary of some additional requirements identified by the Full Court of the Supreme Court of South Australia in Kenny v Ritter [2009] SASC 139:

• as officers of the court, counsel representing a party should not take any inappropriate advantage of an unrepresented litigant;
• in such a case counsel is expected to assist the judge in ensuring that the topics that are necessary to be covered for the purpose of the case are appropriately identified in the interests of a fair trial;
• there may be times when counsel in such proceedings may need to modify the manner and form of objections to evidence and possibly defer the making of such objections to a point where the trial process is not interrupted;
• pedantic objections are to be avoided where possible as they may be unnecessarily disruptive to the trial process and highly unsettling for unrepresented litigants; and
• the Court also acknowledged, however, that counsel for a represented party has an obligation to put their client’s case in the most favourable manner and that there may on occasions be a tension between the various duties. By the same token, however, the overall interests of justice and the judicial process must always prevail.

The importance of professional courtesy and civility, including in dealings with litigants in person

As Justice Allsop observed, litigation with a litigant in person is not easy. It is not easy from the perspective of the Court, court staff, legal practitioners or the litigant in person. But as Justice Allsop has emphasised:

• it is important not to lose sight of the perspective which many litigants in person have when they become involved in litigation. They often feel as though they are outsiders because they are not members of the profession in whom the Court places trust and confidence. Litigants in person suffer the “twin stresses of being the client and the advocate”. He added that anyone who has been either of those things can only guess at the stress of being both;
• it is important nevertheless not to lose sight of the fundamental proposition that “courtesy and civility are part of the fabric of the duty to the Court”; and
• as his Honour has also pointed out:
  

Sometimes cases brought by litigants in person are groundless. Sometimes they are not. A litigant in person is entitled to a fair hearing in a civil environment, no more, no less; but it is essential in dealing with procedural matters not to let irrelevant minutiae act as a focus for further unnecessary complaint and the potential growth of obsession. This is so even if, because of their lack of training, litigants in person display what would between professionals be gross discourtesy, such as calling the judge in chambers without notice.

I entirely agree with Justice Allsop’s comments requiring professional courtesy and civility, not only in dealing with litigants in person but also with other practitioners. Few things irritate judges more than having to deal with solicitors’ letters which are expressed in vitriolic and provocative language. Such language is intended to be self-serving. It is invariably counterproductive. Extreme cases could well attract adverse cost consequences for practitioners, consistently with s 37N of the Federal Court Act.

Finally, may I raise another difficult issue relating to litigants in person and invite your comments on how it can most appropriately be addressed. It concerns the question of how Courts should respond to the problem of some litigants in person running hopeless arguments. Legal practitioners are constrained by ethical rules governing such conduct. Those professional rules have now been considerably strengthened by the enactment at both a State and Federal level of provisions which unambiguously state that the overarching purpose of civil litigation is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (see s 37M of the Federal Court of Australia Act 1976 (Cth) and s 56 of the Civil Procedure Act 2005 (NSW)). Section 37M(2) of the Federal Court Act also makes it clear that the overarching purpose of civil practice and procedure provisions includes the following objectives:

• the just determination of all proceedings before the Court;
• the efficient use of the judicial and administrative resources available for the purpose of the Court;
• the efficient disposal of the Court’s overall case load;
• the disposal of all proceedings in a timely manner; and
• the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
  

A statutory duty is imposed by s 37N(1) on parties to a civil proceeding to conduct the proceedings in a way that is consistent with the overarching purpose. Furthermore, and of particular significance to practitioners, is the obligation imposed by s 37N(2) on a party’s lawyer conducting civil proceedings to take into account the duty of their client to act consistently with the overarching purpose and to assist their client in doing so. The Act also makes clear that any failure to comply with those duties may be taken into account in awarding costs, including costs payable personally by a lawyer (see s 37N(4) and (5)).

Such provisions can have important practical consequences for practitioners, as is illustrated, in the recent decision of Gray J in Modra v State of Victoria [2012] FCA 240, where his Honour ordered a solicitor to pay certain costs personally in circumstances where the Court found that the practitioner had not complied with relevant aspects of ss 37M and 37N.

The position seems more complicated with litigants in person. The risk of an adverse costs order being made, including the possibility of indemnity costs, may operate to discourage some litigants in person from presenting hopeless arguments, but experience suggests others are not so constrained. How then is the Court to deal with the matter? Is there a solution or is it a systemic failure which simply has to be endured?

One approach, which is sometimes adopted in the Federal Court in appropriate cases, is to impose a time limit on the presentation of an argument which is doomed to fail, but the litigant in person insists that it must be put (and even put repeatedly and at great length). The imposition of a time limit goes some way towards balancing the competing considerations. I would be interested to hear any suggestions as to other possible approaches.