Power Imbalance in Court Judicial Bullying

Presented at the Australian Association of Magistrates Conference, 18 March 2021

On behalf of the Supreme Court of Tasmania may I welcome you to Tasmania and to Hobart, and acknowledge the important and valuable work done by magistrates all around the country. I would also compliment the office holders of the Australian Association of Magistrates (AAM) on managing to convene this conference, and congratulate the organisers, Catherine Geason, the Chief Magistrate in particular.

The subtext below the somewhat imprecise topic of my paper is what has become known as judicial bullying. What I intend to try to address is what it is, what it is not, why it might happen, why it is a problem and what should be done about it when it does happen.

Ultimately, what I wish to leave you with is the rather high minded message that I do not think that there is ever a good reason or excuse for rudeness and discourtesy by judicial officers in court, no matter what the provocation. That is not to say that judicial officers cannot be firm or even abrupt, but rudeness and discourtesy are not qualities to be admired in judicial officers.

A difficult and stressful job
Judicial officers at every level have busy, stressful and demanding jobs. The justice system in general is under-resourced. We have little time and a heavy workload. Judicial officers assume responsibility for making public decisions which cannot be delegated to others. The process of decision-making is unrelenting.

It is particularly so for magistrates. The great majority, something around 90 per cent, of court matters in Australia are dealt with in magistrates courts. The reality is that most direct contact between courts and the legal profession and the public will be with magistrates rather than judges. If a member of the public has occasion to appear in court there is a very good chance it will be before a magistrate.

Magistrates in every State and Territory have busy lists. Magistrates deal with a wide range of criminal, civil and administrative matters. From traffic offences to more serious criminal charges, from petty neighbourhood disputes to commercial litigation of some substance, and in Tasmania at least, appeals from various Tribunals and statutory bodies. A great deal of juggling and time management is called for. The work of a busy magistrate includes not only hearings but pre-hearing case management. In the course of all of this magistrates are called upon to deal with accused persons, witnesses, police prosecutors, lawyers, representatives of the various court services, court staff and other magistrates.

Demands placed on magistrates are high and have become all the more onerous because of shortfalls in funding to the courts and to court services, and the related increase in unrepresented litigants. The nature of the work in the magistrates court is such that persons often appear, both in civil and criminal matters, without a lawyer. Dealing with unrepresented persons, as we all know, presents its own challenges. Unrepresented litigants are frequently unfamiliar with the language and procedure of the court. Sometimes such persons are unrepresented because they are unable to find or afford a lawyer. Very often they want to do the right thing. Others are more difficult and demanding. They choose to be unrepresented because, for example, they may have quirky or idiosyncratic views about the merits of the case they are involved with. Such persons can be particularly difficult to deal with.

Many lawyers who appear before magistrates are young and inexperienced. It tends to be the training ground for young lawyers. They start out as very keen but anxious. As is the case with magistrates, the demands on lawyers can be heavy. In the rough and tumble of a magistrates court practitioners are commonly trying to find clients, take instructions, and juggle appearances for multiple clients in multiple courts. Sometimes briefs are thrown to them at the last minute by colleagues. Some are competent but overworked and under prepared. Some are incompetent through lack of ability or lack of diligence.

It is hardly surprising that every judge or magistrate will become irritated, frustrated or even ill-tempered from time to time. There is a fair chance that every one of us has, at one point in our career as a judicial officer, attended a course directed at court craft, maintaining authority and control in a court room. It is part of our job to conduct the court in a way which achieves the efficient disposition of business while at the same time being fair and just. But there are limits to the patience of even the calmest magistrate.

Is this really a problem?
It is uncommon that this kind of improper judicial behaviour is brought to light officially. We hardly ever have the opportunity to observe other judges or magistrates in court. Sometimes the conduct of a judicial officer may become the subject of an appeal. From time to time there are formal complaints made, especially in jurisdictions where there is a judicial commission, a subject to which I will return.

But in general it is also very rare that we are told that we have done the wrong thing or stepped over the line. It is easy to understand why that may be so. Lawyers who appear in our courts are unlikely to complain to us, or about us, especially when the anonymity of the complainant cannot be guaranteed by formal complaint procedures or protocols. The likelihood of complaint is also affected by the power imbalance which led to the behaviour in the first place. There would be, I think inevitably, a strong perception that any complaint is not likely to be well received, and that if a complaint is made by a particular identified practitioner, it will affect the future relationship between that counsel and the magistrate or judge. They may even think that they are unlikely ever to get a fair hearing again.

So, from the fact that we do not hear much about it directly, it is very tempting to think that judicial bullying is not really a problem. Or, even if it is, it is a problem for someone else, and not me.

We all hear stories of how it used to be in the old days, when judges would tear strips off those who appeared before them, maybe as some sort of training, or rite of passage, perhaps for no better reason than that it once happened to them when they were counsel. It is of course no longer acceptable, if it ever was. The Hon Michael Kirby AC CMG spoke and wrote in 2013 about judicial stress and bullying and of his observations of rude and unpleasant judges.1 He related the descriptions of Ian Barker QC of what he referred to as “a disgraceful display of judicial savagery” perpetrated by judges of the New South Wales Court of Appeal many years ago. Justice Glenn Martin wrote also in 2013, as a judge of the Supreme Court of Queensland, of a judge in that State who said to junior counsel, “You’re an idiot. Does your client know you’re an idiot?”2

Included in the remarks a Federal Circuit Court judge is reported to have made on one occasion to an unrepresented defendant were these:

“Do not ever interrupt me. Do not ever. You’ve been told many times when I talk your mouth goes closed. You do not ever interrupt me or you will be cited for contempt. I’m not putting up with your rubbish.”

and

“You interrupted me. What’s so important? What is so important that you would risk the wrath of the court in trying to tell me that there is something more important? Tell me what it is.”

The problem of judicial bullying obviously extends to the United States where there is a considerable body of writing about it. It seems to me that the judicial culture in that jurisdiction is, at least at some levels, quite different than here, but it is some indication of the widespread and international nature of the problem. An article published in 2012 in the Louisiana Law Review3 describes judges who (and I think we have probably all experienced this in our former lives) took pride in an ability to intimidate people and to cause fear amongst those who appeared before them. One such judge, in giving reasons, referred to “blithering counsel”, and to arguments which were “patently insipid and ludicrous.”

A quick visit to You-Tube will reveal judicial conduct in the United States of an even worse nature, including one judge inviting counsel out the back to fight in the corridor behind the court. Thankfully, we are not likely to see such conduct here, but leaving that aside, it is tempting, as I have said, to think that the sort of conduct I have been describing does not happen much. We like to think that we all know better.

However this proposition is not borne out by the response of legal practitioners in many jurisdictions when they are asked about their wellbeing. Judicial bullying seems to be near the top of the list for matters of grievance. In the Victorian Bar 2018 well-being survey, 850 barristers responded and 59 per cent reported that they had experienced or witnessed judicial bullying. A very similar result was reported in the NSW survey in 2017. The same sort of response was generated in New Zealand and in the United Kingdom. The New Zealand survey in 2018 reported that 65 per cent of the respondents had personally experienced or witnessed bullying by a judge. In 2018, Lord David Neuberger, former President of the Supreme Court of England and Wales, said that there should be greater awareness of bullying across the legal profession. Some of these results have been reported in the Australian Law Journal in 2018.4

I accept the possibility that some of the respondents to those surveys might be unduly sensitive. They may have taken legitimate judicial criticism as bullying. It will always be the case that persons appearing in court, whether counsel or unrepresented persons, will experience some level of anxiety and insecurity before doing so. Nervousness about appearing is, if it is for the proper reasons, probably a good thing. It helps to focus the mind just as an exam or deadline does.

However, I venture to suggest that it could not be that the level of complaint I have referred to is explained by there being so many counsel who are insufficiently intelligent, competent or robust for the court environment. It must be that something is happening which leads to complaint. An article in the Sydney Morning Herald in 20135 reported Mark Tedeschi QC, then Senior Crown Prosecutor in NSW, as agreeing that belittling by judges was the greatest source of stress faced by advocates, and that his prosecutors were returning from court in tears or close to tears wondering how they were going to face having to return to court the following day.

It might be that we are not even conscious of how our conduct may be perceived by those on the receiving end. Even if it is only a matter of the perception of counsel (and I do not think it could be confined to that), it is something which we must grapple with. And I think it must be that some judicial officers still think that authority is best commanded through fear than by some more benevolent means.

Anecdotally I hear stories of judicial officers losing their temper and berating and belittling practitioners. This is an occasion for us all to reflect on how inappropriate it is.

Not bullying
Even judicial officers with a high degree of self-control and patience may sometimes lose patience with rude or incompetent lawyers or especially difficult or disruptive unrepresented persons.

Magistrates and Judges, like every person, have human frailties. We all become grumpy, frustrated, exasperated or even abrasive at times. We can have an off day. I well know the feeling when, on a busy day, the business of the court is held up by a persistently difficult unrepresented person who will not get the message, or a counsel who is just annoying, for whatever reason. I feel the pressure building behind my eyes and my concentration lapses. Given the pressures of work, it would be unnatural if the strain and frustration of court life did not impact on us all from time to time.

I do not think that a simple expression of judicial irritation or frustration is bullying or an improper use of power. Sometimes judicial intervention, even forceful and stern judicial intervention, is necessary to achieve the efficient conduct of the court business generally and, to give a particular case direction and focus. At a broader level, Justice Michael Kirby pointed out that “with the type of personality that will show courage in the face of significant public pressure or private power sometimes comes a personality that is not always polite and courteous. We need our judges to be strong and to stand up against very powerful interests in our society.”

It is a necessary part of the work of a magistrate or judge to make fair and measured criticism of the conduct or work of counsel when that is called for. Sometimes criticism of the work or actions of others is directed through counsel. It is often necessary for us to be firm with counsel, to comment on or criticise improper behaviour, and to expect that those who appear before us display a reasonable standard of competence. It is sometimes necessary to deal firmly with unrepresented persons who are not happy with the rulings or decisions we make, or with our response to the irrelevant issues they wish to ventilate or causes they wish to pursue in the wrong forum. We are also entitled to expect courtesy and respect and react when it is not shown.

And yet all of these things are a matter of degree and what may be perfectly proper in some circumstances, crosses the line in others. And there are ways and means of achieving the desired outcomes without the improper use of power.

What is bullying?
One of the difficulties in addressing the issue of judicial bullying is specifying what it is. It is difficult to address if a judicial officer does not understand what it is or is unable to conceptualise the concept. There is no definition, but one of the things I hope to achieve in this paper is to at least suggest the type of thing that it may be, so that a judge or magistrate may reflect on his or her conduct and recognise at least when it may have occurred, or better still, stop it from occurring.

In 2018 following the 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.”6

The Bar Council of England and Wales has published a Guide containing advice to the bar about bullying by judges. It incorporates the notion of the power imbalance which is the topic of this paper. It discusses what might be bullying:

“Bullying is offensive, intimidating, malicious or insulting behaviour involving the misuse of power such as can make a person feel vulnerable, upset, humiliated, undermined or threatened. It does not need to be intentional.”

The Guide continues:
“While all incidents must be judged in context, bullying involves behaviour such as personal abuse, sarcasm, contemptuousness, unreasonable demands, relentless criticism, intemperate language, demeaning behaviour, comments designed to embarrass or humiliate. It may also include questioning counsel’s competence or professionalism, or asking counsel to justify him/herself, in circumstances that are unfair.

However the Council’s website contains a section on harassment and bullying which says: ‘Bullying is not easy to define, especially as it is often a slow process of undermining or belittling behaviour which may go unnoticed by others.’

In a workplace context in Australia the Fair Work Ombudsman website states that a worker is bullied at work if:

• a person or group of people repeatedly act unreasonably towards them or a group of workers.
• the behaviour creates a risk to health and safety.

and that

• unreasonable behaviour includes victimising, humiliating, intimidating or threatening. Whether a behaviour is unreasonable can depend on whether a reasonable person might see the behaviour as unreasonable in the circumstances.
• Examples of bullying are given including:
• behaving aggressively
• teasing or practical jokes
• pressuring someone to behave inappropriately
• excluding someone from work-related events or
• unreasonable work demands.

Not all of those examples will translate to the judicial context. However the definition of workplace bullying in the United Kingdom seems to me to be pretty close to the mark and reflects the abuse of power which underlies the Bar Council definition:

“offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the person being bullied”.

So, there are many ways that a judicial officer may bully a practitioner by:

• shouting;
• deliberately saying things to embarrass or humiliate them;
• asking them to justify themselves in circumstances that are unfair;
• constant unnecessary interruptions;
• name calling;
• calling into question their professionalism in circumstances that are unfair;
• accusations of incompetence in circumstances that are unfair;
• using various facial expressions to demean or intimidate;
• imposing unfair and unreasonable timeframes;
• referring to things said by a counsel, questions in cross-examination or submissions for example, in a disparaging way, reducing the counsel in the eyes of his or her client.

Bullying can be more insidious. It can be through a snarling or condescending tone of voice. It can be by dismissive body language or facial expression – a roll of the eyes; a covert exchange of glances to the opposite counsel or to others present in court.

Of course the imprecise nature of the subject means that often the assessment of such conduct will be a question of degree. There will be a spectrum of conduct and the most difficult cases will be somewhere in the middle. Bullying may take the form of a continual pattern of small things, each of which viewed in isolation might seem innocuous. Sometimes it will be repeated blatant conduct. I think also that a single event, not repeated, can easily amount to bullying.

There is little point in improper use of power in court, other than to feed the ego of the perpetrator. It is, I would have thought, self-evident, that we are more likely to get real assistance from counsel who is not cowered by fear, and so lacking in confidence as to feel unable to put submissions in the best way they can, or not at all, for fear of further humiliation. As Justice Michael Kirby observed, a person will “rarely give his or her best for a client, or the cause, or for the court, when subjected to undue pressure.”
What constitutes bullying also depends not only on the nature of the conduct but also who might be the target of the conduct. What might not be improper in some circumstances may be quite inappropriate in others. One would expect that the ability of counsel appearing in the High Court or a Court of Appeal to withstand robust judicial conduct is much greater. That is so because the power imbalance is not so great.
I have already mentioned the need to foster and encourage the younger and less experienced members of the profession. It is not the role of a magistrate to toughen up a young lawyer, even if it was part of the magistrate’s own experience and development. Allowance should be made for young practitioners. They should be, within reason, extended patience and courtesy, spared constant interruption or an unduly critical tone. Anecdotally, I hear of many, especially the younger, practitioners being lost to the profession because of the unreasonable demands it places on them. Inappropriate judicial conduct is frequently mentioned as one such demand. In serious cases, as Kylie Nomchong SC pointed out in her 2018 paper,7 it can lead to psychological stress leading to disorders such as depression and anxiety, or at least emotional exhaustion, as well as high levels of burnout and withdrawal from work. The articles I have read make reference to instances of suicide strongly linked to being bullied by a judicial officer in court.

A duty to the office and to the community
Why is this important? Apart from the things I have already mentioned, the Chief Justice of New South Wales, the Honourable Tom Bathurst AC, reminded us recently of the need for the judiciary to be alert to the decline in the public trust of institutions. For members of the public to trust in the judiciary, they must trust in our competency, integrity and our commitment to do right to all persons. The Judicial Oath is to “do equal right and justice to all persons to the best of my judgment and ability and according to law.”8 Poor conduct by a judicial officer, whether a judge or a magistrate, reflects badly not only on that individual officer, but on the judiciary as a whole. As his Honour pointed out, it is for each of us to build trust in the institution by ensuring that “every litigant who leaves the courtroom, regardless of whether they win lose or draw, feels that they’ve had a fair, independent and courteous go.”9

There is ever increasing scrutiny about the manner in which persons in authority, whether in politics, in business and industry, or in public institutions, go about their business, especially as it applies to health and safety in the workplace. The importance which the community places on ensuring the proper use of power is now so obvious that it goes without saying.

The Guide to Judicial Conduct published by the AIJA for the Chief Justices states:

“…the entitlement of everyone who comes to court – counsel, litigants and witnesses alike – to be treated in a way that respects their dignity should be constantly borne in mind. Bullying by the judge is unacceptable. It is worth remembering that many complaints to the Judicial Commission of New South Wales by litigants and their lawyers have had as their foundation remarks made by judicial officers in the course of the proceedings.”10

When a judge falls short of the standards expected of the judiciary by sarcastic comment, disparagement, rudeness, and obvious disrespect, the consequences can be on many levels:

• it can adversely affect the conduct of a particular case – by unjustifiably dissuading a party from tendering evidence or pursuing an argument;
• it can be extremely upsetting and damaging to the person on the receiving end at both a personal and professional level. The confidence and development of especially young lawyers, can be seriously affected in circumstances in which the progression of those practitioners should be encouraged and fostered. Even some more experienced counsel are less resilient than others;
• the confidence of the client in the counsel is affected;

the confidence of the client in the fairness and impartiality of the court is affected.
Perhaps most importantly, the failure of judicial standards must affect the confidence of the community in the fairness and independence of the judiciary. This at a time when the importance of an independent judiciary in the healthy operation of our democracy is of ever increasing importance.

Judges and magistrates have considerable power over lawyers and litigants. The very notion of judicial independence is based on the proposition that we have power to make decisions which bind persons from every level of society, large and powerful corporations and government. In the court environment we are referred to as your Honour. Everyone in court stands as we enter and leave. We bow to the court but the persons in the body of the court bow back. The practice of the court is that lawyers and litigants defer to us. We hear expressions like “may it please the Court” and “if your Honour pleases”, even after a ruling which is adverse to that party. We are entitled to command silence and respect from those who, in the circumstances, cannot speak back. We have the power to charge and sometimes arrest for contempt of court.

With such power comes responsibility. It is the case that a judicial officer is the superior in the court. He or she has the power to conduct the proceedings. Thus, in proceedings in a magistrates court, it is to the magistrate to whom others look to conduct the proceedings with fairness and evenhandedness. That is why improper or inappropriate conduct from judicial officers, in particular, improper use of the power, is so problematic.

I think it is terribly unfortunate that judicial officers may misbehave in this way. We should be held to high standards of conduct. Judges have a duty to live up to their judicial oath. We must exercise self-control, patience and courtesy. When the duty is breached by a sarcastic comment, disparagement, rudeness, hostility, abuse, unfair criticism and obvious disrespect, then it is the community’s respect for the judiciary generally which suffers, because it exposes us all to contempt and a loss of confidence in the institution.
It is not enough that we believe ourselves to be fair and impartial. It is a necessary incident of the power we exercise over citizens that we be seen to exercise it fairly, impartially and courteously.

How can we stop this from occurring?
I am not an expert on the analysis of judicial behaviour. I am not a psychologist. I suspect that I am as guilty as anyone of the occasional lapse of the nature I have been describing. However, could I venture the following suggestions?

• First, there must be knowledge, insight and self-awareness. If you were not already aware that judicial bullying is perceived as a problem by a significant percentage of those who appear in our courts, then you now are so aware. I hope that, in future, something I have said may cause a light to go on when situations arise in court which may cause a reflection on judicial conduct.
• Remember, that you are the person in the court room with the power. Use it to diffuse rather than escalate conflict, even if that means adjourning for a few minutes to allow reactions to settle.
• Be conscious of the person you are dealing with and how your conduct and manner may affect them.
• Remember your obligation to build trust and confidence in the institution of the judiciary. Your conduct reflects on all of us at a time when scrutiny is, quite properly, at a high level.
• Perhaps something as simple as taking a deep breath, even smiling at the person you are engaging with, may help to return the exchange to a proper level.
• Take the opportunity for education and training on how high pressure situations in court might be appropriately dealt with.

In my experience, judges and magistrates who do not raise their voice, and command authority by dignified conduct, are the most respected. As I said at the outset, I do not see that there is ever a need for rudeness and overt discourtesy. This is not to say, as I have been at pains to point out, that there should not be full engagement with counsel to test propositions and, if necessary, put an end to time wasting and meritless submissions.

There will, regrettably, be occasions in which a person is temperamentally unsuited to judicial office. Justice Michael Kirby pointed out, and I agree, that by and large the legal profession gets to know judges who are unsuitable to judicial office either because of intellect, lack of judgment, or temperament.11 Those judicial officers will be the subject of unflattering chatter within the profession, to which the judge or magistrate will often be oblivious. There are those who will be bullies for no reason other than that they can. He or she will enjoy the sport. There will be magistrates and judges who enjoy the opportunity to display what they believe to be their intellectual superiority in a cruel and humiliating way, for the supposed enjoyment of the public gallery or other counsel. Others may substitute competence with aggression.

I do not think that I can put it any better than as was expressed by Jeffrey Phillips SC when he wrote in 2004:12

“Something bullies love is an audience, so that they can show their strength and worth to many, at the same time as inflicting pain on the victim. A common place for judicial bullying to occur is in court directions lists crowded with practitioners, where judges can be found playing to the gallery, humiliating and shouting at hapless, and usually junior, practitioners … In the judge’s eyes, it may have the desired consequence of enforcing appropriate case management, but on the other hand, it may have deep psychological effects upon the victim. Practitioners tell of people coming back from court distraught after a particular judge has bullied them. Many practitioners, as a consequence, will shy away from litigation, and some even leave the profession.”

I should acknowledge also a further paper written by Mr Philips in 2018 and delivered to New South Wales magistrates at a conference in 2018.13

What is the remedy when bullying occurs?
The responsibility of judicial officers to not make improper use of power is underscored because, for very proper reasons of judicial independence, means of removal from office or discipline of judicial officers is limited. In serious and repeated cases, conduct may amount to abuse of public office sufficient to justify proceedings for removal. However, that is a high bar.

In a sense I am addressing these remarks to the wrong audience. As I have already mentioned we rarely see our colleagues in court. Magistrates always sit alone and so the occasion for intervention in the conduct of another magistrate when it occurs never arises.

If I were speaking to legal practitioners I would encourage those who perceive bullying behaviour to record it, get help and advice from senior and respected colleagues, and if necessary act on it.

But I would also acknowledge that one of the most troubling things about judicial bullying is that it is so difficult to address. That difficulty derives from the same power imbalance which is likely to have led to the conduct in the first place. Those who are the subject of improper judicial conduct are unable to fight back. The atmosphere of the court room will almost always be that the judge or magistrate is the person in authority, able to wield power and to demand deference. It is impossible to imagine that counsel who is the subject of improper judicial conduct will have the ability or fortitude to stand up to it there and then. He or she is likely to be overwhelmed by anxiety and uncertainty. He or she will already be on the back foot from what led the court to become difficult in the first place. They fear looking even worse in the eyes of the court, their colleagues and their client. The chances of a fair hearing would disappear.

For much the same reasons it is most unlikely that the legal practitioner will feel able to approach the magistrate directly about it, even after the dust has settled. If there were a colleague with sufficient seniority who witnessed the conduct, he or she may intervene in court in serious cases, or, more likely, seek a confidential meeting with the magistrate in chambers. There are always senior counsel who are willing to advise and assist.

If the conduct is sufficient to justify an appeal, which it has been on some occasions, then that is one means of redress.

It is open for a practitioner to make a complaint either directly, or through the head of the professional body, the Law Society or the Bar Association, or to the head of the jurisdiction. I would have thought that this would be a very desirable course if the Chief Magistrate or supervising magistrate could confidentially approach the offending magistrate with such concerns.

I think that, however justified or otherwise we may think that the complaint may be, or how defensive we feel about it, such complaints should always be taken seriously. Remember that there will generally be a transcript of the proceedings, although it will not tell of tone of voice or facial expressions or body language. John McKechnie QC, former DPP, Supreme Court judge and member of the Crime and Corruption Commission in Western Australia, wrote in 2019 of one judge he observed to turn his chair around and face the wall while defence counsel addressed the jury.

I referred to Lord David Neuberger earlier. His Honour suggested the involvement of regulators, appropriate complaints mechanisms and training at all levels as necessary to change the culture of bullying.

There are already Judicial Commissions in New South Wales, Victoria and South Australia. In each of those jurisdictions complaints can be made about the conduct of a judicial officer. The Commission will investigate and, if necessary, act on the complaints. Fear of complaint to and admonition by the Commission may deter repeat offenders. There is presently no Judicial Commission in Tasmania. I think it is inevitable that each State and Territory will eventually end up with a Judicial Commission in some form.

The welfare of the judicial officer
I have already addressed the demands that judicial bullying can impose on those who are the victim of it. For the final part of my presentation I want to turn my attention to the perpetrator. Some are by nature, as I have suggested, unsuited to judicial office. They will have to live with themselves. However these days, I think that instances of this would be uncommon. More often improper conduct may mean not that the person is inherently unsuitable for office, but that there is something wrong in the private or professional life of the judicial officer. Improper use of power may be directly related to the wellbeing, or absence of it, of the judicial officer.

It is easy to understand how the wellbeing of judicial officers and the demands of the job to which I referred at the start of this paper are directly relevant to bullying behaviour. We may experience:

• Busy lists.
• A backlog of reserved judgments.
• A feeling, through lack of training or education, of a need to command authority in court by aggression or ill-humour rather than by other means.
• Problems at home manifesting at work.
• Perhaps drinking too much.
• We all have feelings, from time to time, that we are not up to the job, and that we have been promoted beyond our capacity. We experience self-doubt about competence, sometimes referred to as the imposter syndrome. I experience it. I suspect that it is felt even by judges at the highest levels. It may be that a judge or magistrate may feel the need to be overly aggressive or demanding to make up for those conscious or unconscious feelings of inadequacy.
• Sometimes magistrates and judges who have been on the bench for a long time may become tired and jaded, and be less willing to make allowances for those who they perceive as being incompetent or time wasting.

My own personal experience is that the stress of judicial life does not approach the stress of private practice in litigation or as counsel, which was my background before becoming a magistrate and later a judge. Whether you agree with that or not, the factors I have referred to which may lead to improper conduct are things that can be addressed. Very often the conduct will not be intentional. Sometimes intolerance and impatience can gradually creep in to the manner in which a judicial officer will conduct a court. Talk to your colleagues. Ask for feedback if they are able to give it. There are programs which enable a judicial officer to have a review of their performance.

Ask for help or advice if you need it, with workload or counselling. There are services available to all of us for counselling or with a psychologist.

Gatherings like this are an ideal occasion to talk to others about how they are going, how they manage court lists and business. There are, I am sure, training courses available to those who look for them.

The Honourable Justice Robert Pearce
Judge
Supreme Court of Tasmania

1. The Hon Michael Kirby AC CMG ‘Judicial Stress and Judicial Bullying’ (Speech, Melbourne Wellness Conference, 21 February 2013) and article at (2013) 87 ALJ 516.
2. “Bullying in the courtroom”, Justice Glenn Martin, (2013) 4 WR 16.
3. Douglas R Richmond, Bullies on the Bench , 72 La L Rev (2012).
4. “Judicial Bullying Revisited”, (2018) 92 ALJ 575, 576 and (2018) 92 ALJ 943.
5. Sydney Morning Herald, 23 March 2013.
6. The Victorian Bar Council, Judicial Conduct Policy (Discussion Paper, October 2018).
7. Judicial Bullying: the view from the Bar, Kylie Nomchong SC, Judicial Officers Bulletin, November 2018, Vol 30 No 10.
8. Promissory Oaths Act 2015 (Tas), s 15.
9. 2021 Opening of Law Term Address, The Hon T F Bathurst AC, Chief Justice of New South Wales.
10. Guide to Judicial Conduct (Third Edition), Australian Institute of Judicial Administration, Nov 2017
11. Judicial Stress and Judicial Bullying, Kirby, (2013) 87 ALJ 516 at 521.
12. Of dinosaurs and bullying judges, Jeffrey Phillips SC, 30 Law Society Journal, December 2004.
13. Judicial Bullying, Jeffrey Phillips SC (2018) 8 WR 138