With a new federal anti-bullying regime coming into place next year, Thomson Reuters’ Journals have been giving timely and topical coverage of Judicial bullying and workplace stress in the legal profession.
Earlier this year, Workplace Review published a special issue featuring a range of articles considering workplace bullying, particularly in the legal profession.
Jeffrey Phillips SC, workplace bullying expert and co-General Editor of Workplace Review kicked off the debate with an article entitled “‘White line fever’ in the courtroom” (2013) 4 WR 13. This article drew the analogy between stepping foot into a courtroom and stepping onto a playing field. The author noted that “the lines are drawn and the players ready to battle. Overbearing conduct and bullying by judges and lawyers can make the courtroom an unsafe working environment.”
This article concluded: “One can understand in many courts how judges can have their patience tried by rude litigants, ill-prepared or impunctual practitioners or practitioners engaging in bullying behaviour themselves. Some lawyers can be infuriating… Many practitioners, once they step foot in the courtroom, seem to have a bad case of “white line fever” common in the sporting arena and regard cross-examination as the last legal blood sport. Counsel who have high-conflict personalities may infect the whole process and in turn become judges with high-conflict personalities. One can understand that in a busy courtroom and in difficult cases tempers can get frayed. One is not expecting lawyers and judges to sign up with the World Kindness Movement. Stress in our work and in the courtroom is necessary and assists to get work done efficiently, but one needs to learn and note the signs when stress turns to distress.”
The debate continued in the Australian Law Journal at (2013) 87 ALJ 371. General Editor Acting Justice Peter Young responded with his thoughts, commenting that “one cannot assess a statement as “bullying” without analysing circumstances. Of course there are cases where judges get stressed and exasperated, and may say things or behave in a way which is regrettable. However, this occurs sufficiently often that all persons admitted to the bar know it will happen every so often and are psychologically prepared for it. When I was at the Bar we considered part of the fee was ‘dirt money’ to compensate us for it.”
An extended excerpt of this article is also available on the ALJ page of this site.
Most recently, the Hon Michael Kirby AC CMG has joined the debate, writing in (2013) 87 ALJ 516 that “the judiciary’s work involves an inescapable component of stress… No amount of sermonising about stress will entirely banish such pressure from the courtroom.”
“Judges, like the rest of the population, have variable temperaments. And whatever their attitudes, they are entitled to express displeasure where they feel that a lawyer, or anyone else, is impeding the proper performance of the judicial function or the attainment of justice.”
The article cautions however that “any response to instances of judicial bullying should not inhibit disproportionately the robust independence of, and candid speaking by, those who hold judicial office.”
We can expect to see more on this topic following the passage of the Fair Work Act Amendment Bill 2013 by Parliament on 27 June. This will create a new jurisdiction for the Fair Work Commission to hear applications by workers seeking orders to stop alleged workplace bullying. Stay tuned for more information on the dedicated federal anti-bullying regime in the upcoming issues of Workplace Review.