Interview with NSW chief justice Tom Bathurst ... A glass of water for the shock jocks ... CJ's thoughts about QCs and SCs, a tort for serious invasions of privacy, a Bill of Rights and electronic courts ... Addressing the costs of litigation ... Judicial diversity ... Confidence in the judiciary
Bathurst: the more diversity on the bench, the better
Justinian: In your speech three-and-a-half years ago Chief Justice, when you were sworn in, you said costs of litigation are an ongoing problem. Does that remain the case and what processes have been put in place to contain costs?
CJ: It does remain the case and it will always remain the case so far as we are talking about what is effectively a labour intensive industry. What we could do is at two levels. The first level is to put in place, as you said, processes which could contain them. The second is the more extreme one, is just fix the caps on costs. We haven't yet gone to the second level.
What we've done is we focussed on a number of areas where there was a real potential for cost blowout, or where the impact of costs can really hit the litigants hard in this court.
So for example in the Family Provisions Act in litigation we require people at a very, very early stage to put on an estimate of what the case is going to cost. Often that causes litigants horror, and they will go to mediation and they will settle it very quickly. We're getting settlement after settlement ...
Justinian: So it causes them horror once they see the size of the bill ...
CJ: They go to mediation and they settle the cases very quickly. We've got a mediation service effectively there and it's certainly clearing 50-60 percent of the cases.
That won't occur in large scale commercial litigation because costs are proportionally still relatively small compared to the amount involved. What we've done there, however, is we've changed the discovery rules, because discovery was a major cost blowout.
Now you only get discovery after you've provided witness statements and you have to convince the court that there is a real necessity for it. There was a lot of objections from the profession on that and we were told everyone would go to the Federal Court for example which has more lenient rules. It hasn't happened.
Justinian: So the judge decides whether there is to be Discovery and the extent of it?
CJ: Yes. And it's not a question of people putting up lists or anything, it's just this, why, yes or no. So it works that way. In relation to defamation more recently, I was concerned that the judge of the court was sending a week a month on interlocutory matters. Every other list was doing those things on a Friday - I said you do it on Friday. Once again there was huge objection from the profession, but it's been accepted, and it's working.
Justinian: To have the interlocutory stuff all done in one day?
CJ: Which means they've got to compress the arguments, compress the judgments.
Justinian: What about interrogatories in defamation? That was something that went on and on and on.
CJ: On the draft practice note I had on it I'd abolish them. Then I must say some of the defamation judges and the profession came to me and thought there is a limited use for them, so they've been severely restricted. And that does seem to have helped the problem.
So you work at those issues. The other thing we're trying to do, or I am trying to do, is making sure case management is economically efficient. I mean you can give a whole lot of directions etc. which may reduce the costs of the hearing at the end of the day, but you just front load.
So what you try to do is make sure that the level of case management is appropriate to the particular cases concerned. Now, once we get beyond that you're getting into the area where you're talking about putting caps on costs, whether it's caps on recoverable costs or caps on costs generally.
The UK is trying it out at the moment - it's getting a mixed reaction from both the profession and the judiciary and there are legitimate concerns emerging in relation to it I think.
Justinian: Is this part of these Jackson reforms?
CJ: Part of the Jackson Report. But we're watching them - the jury is still out and there is a difficulty in, I think, if two people want to spend a large amount of money on litigation, and to have particular lawyers of their choice, have particular procedures, there is a limit I think the courts can go to interfere with their rights. That's the basis of their adversarial system.
But, it is very different in cases where you're not talking about a dispute between two large corporations and even then they've got an obligation to ensure that they don't over utilise the court's time.
Justinian: Have these reforms been in place long enough for you to test whether they are actually having an effect on costs?
CJ: With the the Family Provisions Act, certainly yes. The changes to discovery, certainly yes. On the defamation list I can't say yet - it hasn't been in for long enough.
Justinian: The capacity to litigate is popularly regarded as being the province of the wealthy or corporations, at one end, or sleeping under bridges and getting legal aid at the other. The middle class seems to be unable to access the process.
CJ: The matters that I referred to are designed to try and make it affordable for the middle classes, that's my major concern and that's been a major focus ... There's no doubt it's difficult for the middle class in relation to conveyancing transactions which go wrong and commonly come here. Also, possession matters where people have defaulting mortgages and there are claims of possession and the Family Provision Act that I've just referred to. It is horrendously expensive.
How do you cut it down? I think what the courts will have to do more and more in the future is ensure that the way cases are conducted is not extravagant. Now take, for example, a simple contract claim. That should be dealt with simply, you wouldn't need elaborate pleadings, you wouldn't need collaborative affidavits ... and parties should be deterred from doing so.
One of the things you asked was whether I had an agenda for reform of the core processes and what I would very much like to do as far as that's concerned is, to the extent that we've got the resources to do so, have what are described as individualised justice in a case management sense.
So you look at a case - if it doesn't need the full panoply of procedures required by the rules, it should be identified very quickly and put on, for want of a better expression, a particular track. If we could do that - and as I said I've got faith in the profession who would be co-operative with it - you could see a significant saving in those areas.
Justinian: How would that work?
CJ: It would mean calling on the hearing quickly and giving directives at the hearing. Do you really want to cross-examine in this case? Is there any real dispute to settle here? Just put on a brief statement of defence – just put on your opposing contentions and no more than that.
Now that does take a very fair degree of judicial resources, which are of course limited because it involves a judge getting called to the case very early and spending time and making a decision. We get across over a couple of thousand cases a year and the District Court gets many more than that, the Local Courts get far more.
Justinian: So it is a matter of balancing the resources?
CJ: But I think that's the most the court can do to reform anything. If I can achieve something along those lines - possibly with the aid of judges with specialities in particular areas dealing with it - I think it will make a significant improvement.
Justinian: Does mediation speed things up and make them them less expensive?
CJ: Oh yes, every case we now insist goes to mediation. The rate of settlement is high particularly under the terms of the Family Provisions Act. It's probably slightly less in other areas but you're still talking of 30-40 percent settlement.
Justinian: That's encouraging.
CJ: And in all areas, the commercial area is of course is administered by judges, corporations are administered by judges, professional negligence is administered by judges. In all those case areas the judge, in consultation with the parties, will pick the most appropriate time for mediation. Sometimes they don't settle immediately after mediation, but people get an appreciation of what's at stake.
Justinian: At the beginning of the year in your Law Term speech you announced two measures to improve public confidence in the judiciary: judgment summaries notified on Twitter and a series of seminars explaining the judicial process in criminal cases. What's been your feedback on that, and do you think it has helped improve public confidence?
CJ: We had three seminars, one for the politicians, one for the press and one for the community. The feedback we've got is that they, particularly the community seminar, did help to explain how we did things, that we weren't idiosyncratic, that we weren't anti-victim, for example, and yes I do think that, in relation to the people there, it improved their confidence to the extent that they passed it on and they continue to do so.
I'm proposing probably to do it again. So I think it's a worthwhile exercise. The judgment summaries have been successful. We've put out since the start of the year over 200 of them and the feedback is that they have been a valuable resource to the media, which is a good thing and also that they are being used by the media.
One of the worst things – the biggest complaints that I had about media criticism were twofold. First, that there was a miss-statement of the facts and what has happened, I think, since that time is that journalists have been using the judgment summaries - so they're criticising on a factual basis and that's fine.
I'm certainly not averse to media criticism - that was my first complaint. My second was I thought that personal attacks on judges were unfortunate and unnecessary. But that seems to have died down at the moment.
Justinian: Yes that was in relation to a sentencing wasn't it?
CJ: Yes that was Loveridge. But as I said that's not happening and I think that ...
Justinian: Do you feel you have to respond when shock jocks or the tabloids says something pretty crazy about law and order, or is it something that just should go into the ether and be forgotten?
CJ: I think that the only area where judges should respond is where there is an inaccurate summary of the case. The best thing we can do, as far as that is concerned, is to get out there and explain it, not by me giving an interview every day, but by putting in a process where people can say well there it is, that's what's been said, there are the facts and you go from there.
Justinian: Would you ever invite Ray Hadley or the Telegraph around for a cup of tea and an educational chat?
CJ: I have - last year. He was asked to the seminars. He didn't come because he was – I think he was on air. The presenter for the afternoon program on 2GB came - Chris Smith. I gave him an interview. I'm not averse to talking to people. I won't go on talkback radio, I just think it's not appropriate, but if he wanted to come here we'd probably have a glass of water. I'd have no difficulty.
Hadley: didn't attend court seminar
Justinian: Since the Court Suppression and Non-Publication Orders Act came into force, there seems to be of much greater volume of things that can't be published. I haven't scientifically measured it – there just seems to be more notifications.
CJ: This surprises me and I asked Jo [court information officer] and she said she's not getting increasing complaints from journalists. Our suppression orders have been certainly far more limited compared to other states and they have been limited to identity of victims, child sex offenders in sentencing and not only you, but everyone complains about it.
Justinian: That's suppression provided for in other legislation ...
CJ: Where there is a re-trial – there's good reason for that. So there hasn't been much more than that. I see you mention Reinhardt. We knocked back Rinehart's application for a suppression order, actually the Court of Appeal said no.
Justinian: I think one of the things from a media point of view is that it would be nice to know the reason for a suppression order - to say there could be an issue of prejudice of a pending trial or retrial or whatever it is. As it is, all we get is this this bald notice saying something is off limits.
CJ: Well we'll take that on board. My view about them is that they should never be given. It's not enough for the parties to consent to them – there must be a reason for them and it has to be an exercise in judicial discretion. For example, what happened in Rinehart.
Justinian: Now to the diversity question. I think there was a study made last year by some academics, which said the white males still predominate. So while the rest of the country is becoming more diverse, the bench isn't. I just wonder if that's a fair complaint or a fair criticism?
CJ: Can I just deal with this court? We have 11 female judges out of 49, so roughly 25 percent - one which if you take it to be representative of the senior ranks of the profession, and I emphasise the senior ranks, is probably still within the range of the percentage. If you go through the last two to three years of appointments of Senior Counsel, that's a ratio below what we have here.
Justinian: Sorry I didn't follow that. Are you saying that the appointments to Senior Counsel ...
CJ: ... is about 20-25 percent female. So it's roughly the same. Now, I think the more diverse the court is, the better. That's a given. For example we appointed a woman judge to the Common Law Division this month [Helen Wilson]. She took silk a year ago and it's meteoric. But, what I think you are going to find is that in the next three to six years there will be a far greater number of women at the bar moving to more senior levels of the profession. And there will be a far greater pool for them to be drawn from.
Then we'll get to a stage where at least we will have diversity as far as gender is concerned, increasingly. In relation to ethnic diversity, until relatively recently a great number of law graduates were either white male or female. There is an extraordinary change as far as that's concerned. And that again will work its way through and I wouldn't give such a narrow time-frame, but I think even within my time as Chief Justice you'll see a far greater number of people of different ethnicity.
Justinian: And the school backgrounds and university backgrounds will probably change too.
CJ: Yes I think the school background is a little bit exaggerated. I mean the last four appointments in this court all came from public school, state school backgrounds.
Justinian: So when the government announces a new appointment, do they always consult with you and chat or do they just say we've decided to ...
CJ: No, no, no, they consult with me. One of the things that is very important so far as the consultation process is concerned is consideration, for example, whether a female of sufficient standing can take on the appointment.
Justinian: Can I ask you about a few topical issues. The QC thing has been agitated again. What's your view about that as opposed to the bar appointing SCs?
CJ: I would have thought a few years ago that people would prefer to be SCs, but that apparently is not the case. Look, I don't think that the title, be it QC or SC, is going to alter the reputation of the institution or to the reputation of the people there. The institution depends on the people that get silk having been of top quality. If they are of top quality they'll get work either here or to an extent overseas, whether they're called SCs, QCs or neither of those things.
Justinian: Yes, it's the market.
CJ: Exactly.
Justinian: Do you think there should be a statutory tort for serious invasions of privacy?
CJ: Probably yes, I think at the present time. That's very much a preliminary view. There has to be a balance struck between persons' rights to privacy and the public's right to know about certain matters surrounding public figures, which is where in England the issue has primarily arisen. When you say a tort - say it's in damages, how do you assess damages? We know the difficulties so far as defamation is concerned. It's certainly something I think should be investigated and my present view is probably yes, but it's preliminary.
Justinian: Do you think people should be able to Tweet from court?
CJ: Yes, and they do. One of the problems we've had of late is judges making suppression orders at the end of a judgment to protect names, after it's all been tweeted. It's part of today's life, there's no ....
Justinian: Should we have a Bill of Rights?
CJ: I still don't think it is necessary. Where it is needed it can be dealt with in individual legislation – the Anti-Discrimination Act and similar legislation. When you start to talk about a Bill of Rights you always get the question as to what rights you are going to entrench? They're not entrenched in any event, unless you have a constitutional amendment. The extreme one is a right to work, that is where you get into very difficult areas.
Of course, the legislation can be overruled by parliament either directly or by passing a Bill inconsistent with it. The only advantages I see is that it does provide is a check on, in a political sense, on parliamentary excesses.
So, for example, if there was an extreme law, and I'm talking hypothetically, I'm not going to comment on the present [national security] legislation, but if it was plainly affecting people's basic rights well say so. And it must be remembered in this context, that Australia signed-up to a considerable number of treaties and so you've got the moral pressure anyway. But, at the moment I don't see the necessity for it.
Justinian: If the electronic world keeps developing at the pace it is, do you ever see a time when civil courts can function entirely online, with applications ...
CJ: One of the things that I can see, and I hope it happens sooner rather than later, is the directions hearings will be done online. There is no reason for people to be coming into court for relatively simple directions hearings which could be done. Indeed, I put up a proposal to the profession at Parramatta as to whether they would like to have a form of online registry or whether they'd like an electronic courtroom, either by video link or by simply online. They are to come back to me about it. But yes, I do see a deal of the work of the court being done not on a face-to-face basis.
Justinian: At your swearing in you said how much you loved your life as a barrister. Do you still miss the bar or is being a judge more absorbing and rewarding?
CJ: I've enjoyed the new challenge. No I don't miss it, this has been a stimulating job - it's been fascinating - I'm glad I took the appointment.
Justinian: When you started in the law was it something you had your eye on – to be Chief Justice, was that an ambition?
CJ: No, I didn't have my eye on it too much before I got the job!
Justinian: But being president of the bar - I suppose it was a logical step.
CJ: I'll tell you I was over in Western Australia doing the Bell and Westpac litigation when the Attorney rang me and that litigation was scheduled to go for another two or three months.
Justinian: Was it like Jonathan Sumption - could you keep the appointment open ...
CJ: No, I finished addressing the so that was really the time to go. No certainly not.
Justinian: Is the job all consuming or do you have time for another life?
CJ: Yes, it's consuming. I try to swim every morning which sort of keeps me fit, and even better it keeps me a bit saner. I try to make time to read and do a few other things but it's not a five day a week job, let's put it that way.
Justinian: What are you reading now?
CJ: What am I reading now? I'm reading the book that won the Booker prize [The Narrow Road to the Deep North]. It's good.
Justinian: Did you consider another career apart from life in the law?
CJ: Oh, certainly when I left school and for that matter left university in my first few years as a solicitor I thought there may well have been an alternative to law in say banking and financing. I had no mechanical and engineering skills so you go down a whole series of careers, but I didn't think of the alternatives once I went to the bar, no.
Justinian: But you didn't really enjoy being a solicitor I gather?
CJ: No.
A smaller portion of this interview appeared in The Saturday Paper on November 15, 2014.