A Federal Court judge, in a speech, called out seven colleagues with a history of taking one, two or more years after a hearing to give their decision. Legal affairs columnist HUGH SELBY says the “naming and shaming was a step too far, an overreach well understood by those who have experienced good teamwork.”

Me and another old fella were chatting about good leadership, and how it was hard to find.

We found it too easy to remember examples of bad leadership.

One aspect of good leadership is the ability to see and share the perspectives of others. 

The other fella remembered how, as a student, he’d had a Christmas job delivering hams. He didn’t know the area and he didn’t have a street directory, so he’d stop the truck and ask people. 

What he now remembers is that the answer always took as the point of reference this or that pub.

Since he didn’t go to those pubs the answers were not that helpful. 

He asked people for whom their local pub was the hub of pleasant, shared experiences. It was their focal point, but he was an outsider. The hams got delivered, albeit later than planned.

What was lacking was a shared perspective.

Keeping the nest clean

“Don’t shit in your own nest” is timeless, good advice.

It was recently forgotten by a judge of the Federal Court who named and shamed seven of his colleagues with a proven history of taking one, two or more years after a hearing to give their decision. Drawing attention to those delays is something that needs to be done. 

However, there are several issues, not about the substance but about the form of the complaint. Who should draw attention to these delays in writing judgments? How should that be done?

For example, was it appropriate to publicly name his work colleagues who were too slow? How did “naming and shaming” advance the cause of having fewer delayed judgments?

Had the problem been openly discussed among the judges? Had the actual causes of the delays been found? Had remedies been proposed? Had those remedies been tried? With what results?

Was there a shared perspective about judgment delay among the team of judges?

Perhaps steps had been taken (his paper is silent), but achieving too little to contain his frustration.

Even so, naming and shaming was a step too far, an overreach well understood by those who have experienced good teamwork: some matters are strictly for the captain, not for the players to call.

If the captain falls short then the choices are to grin and bear it, replace the captain, or leave the team.

Writing a legal decision is hard work for all, easier for some

Writing a good judgment reflects at least the following: innate talents in both legal reasoning and clear communication, being able to put emotion and natural prejudices to one side, a temperament that reflects stubbornness and a determination to get the task done, being able to learn from the experiences of crafting judgments to get better at it, having a sense of pride in the work, and never forgetting that one is writing for the losing party.

What’s required to write a decision includes: creating a narrative of what happened, identifying what are the legal issues that will decide the outcome, matching the competing factual accounts to those legal issues, assessing the strength of the competing factual accounts to determine which is to be preferred, writing the decision in such a way that the logic of the reasoning path is clear to any reader.

Naming and shaming those who take too long to write their judgments treats alike those outcomes that may result from quite dissimilar causes.

The reasons for taking much too long to write a judgment may include, apart from disinclination or laziness, personal injury (physical or mental), exhaustion from overwork, a tragedy or writer’s block. 

Besides, it may be that the quality of the much-delayed judgment is rather better than if it had been written in haste. It may be a better judgment than many of those handed down by that writer or colleagues in much shorter time.

Those judges with the responsibility for allocating work and chivvying along the laggards in the judicial work crew learn soon enough those that are sometimes tardy and those for whom it is the norm.

Leadership is the art of managing well the available resources, drawing on the strengths and containing the weaknesses that bedevil us all in one way or another.

Why a national judicial commission is necessary

Excessive delays in delivering judgments is not a problem just for the Federal Court. It is a problem that arises in any court or tribunal at any time.

It is not a problem that arises only in single-judge matters. 

In appellate matters one judge’s failure to write their judgment can hold up delivery of the appeal decision for many, many months.

“Justice delayed is justice denied” is a phrase usually used to decry court backlogs that mean that cases are not heard as they should be, which is soon. That’s the front end of the litigation train.

The back end, where the same comment can be made, is when the decision maker (be that magistrate, judge, tribunal member, arbitrator) takes too long to give the result.

It’s a public service to point out the problems in our justice system. That’s why it’s proper to comment upon shortfalls in prosecution and legal aid funding, unacceptable conduct by police and prosecutors, chronic mismanagement in our prisons, the lack of appropriate facilities for those with mental health issues, and the ACT government disinterest in addressing these issues. 

If it is okay to publicly name and shame those who write slowly, is it okay to do the same to those who, allegedly, arrive late in their courtrooms, make casual racist remarks during hearings, bully inexperienced advocates, include in their decisions comments about the parties or witnesses that are not based on the evidence, make private inquiries to “garner” extra evidence, or who have their staff do rather too much of the writing of decisions?

It’s not okay to make untested, inadequately explained allegations. It’s unfair.

These are matters that deserve proper inquiry by an independent arbiter. That is why we must have a national judicial commission able to respond quickly but thoroughly to complaints about conduct in any court or tribunal.

Such a national commission would ensure public confidence in an independent assessment of complaints, develop national standards, and shut down parochial interests.

A matter of judgment

Meantime, this old fella offers this suggestion to the Chief Justice of the Federal Court: restore to the court website the judge’s paper that included the “name and shame”. It has been removed from the Federal Court website, allegedly at her instigation. 

It’s a well-researched, well presented, entertaining and informative paper, but he must remove from his paper the names of those seven judges he singled out, along with the named cases. 

That would show deft leadership, an acknowledgment of team spirit, appropriate reflection by the judge, and good recognition of the various perspectives inside and outside the court.

Hugh Selby is a former barrister and the legal affairs columnist. This is his 300th article for CityNews, a milestone he has reached in a reasonably quick time in which he has covered the Lehrmann-Higgins court case, Brittany Higgins’ compensation uproar, proceedings of the ACT Integrity Commission, Bruce Lehrmann’s misguided defamation action, Ben Roberts-Smith’s failed defamation action and written other simpler, pragmatic social and legal columns. Hugh writes always with good humour, good grace and good manners. Now for the next 300…