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NSW’s top judge, Tom Bathurst, isn’t shy about stirring up the legal profession. He talks about suppression orders, judicial diversity and a bill of rights. By Richard Ackland.

NSW Supreme Court justice Tom Bathurst adjudicates

NSW Supreme Court justice Tom Bathurst.
Credit: SUPPLIED

Despite his conservative background Tom Bathurst, chief justice of the largest, busiest superior court in the country – the Supreme Court of New South Wales – has launched headlong into a program of reform. It has been met, initially, by disquiet from the legal profession. 

Richard Ackland The appointment of Queen’s counsels has been agitated again. What’s your view about that, as opposed to the bar appointing senior counsels?

Tom Bathurst 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 the reputation of the people there. The institution depends on the people that get it, having been of top quality. If they are of top quality they’ll get work either here or, to an extent it’s available, overseas whether they’re called SCs, QCs or neither of those things.

RA Do you think there should be a statutory tort for serious invasions of privacy?

TB 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.

RA Should we have a bill of rights?

TB I don’t think it is necessary. Where it is needed 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 because 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. 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.

RA On the question of judicial diversity – the white males still predominate while the rest of the country becomes more diverse. Is that a fair complaint? 

TB Can I just deal with this court? We have 11 female judges out of 49, so roughly 25 per cent – 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, the ratio is roughly the same. Now I think the more diverse the court the better. We appointed a woman judge [Justice Helen Wilson] to the common law division [last month]. Now 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. In relation to ethnic diversity, until relatively recently a great number of law graduates, again, 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 … I think even within my time as Chief Justice you’ll see a far greater number of people of different ethnicity.

RA And the school backgrounds and university backgrounds will probably change, too.

TB Yes, I think the school background is a little bit exaggerated. The last four appointments in this court all come from public school, state school backgrounds.

RA At the start of the year in your Law Term speech you announced two new measures in the context of improving public confidence in the judiciary: judgement summaries put out on Twitter and a series of seminars explaining the judicial process in criminal cases. What has been the feedback on that, and do you think it has helped improve public confidence?

TB We had three seminars, one for the politicians, one for the press and one for the community. The feedback we’ve got is that particularly the community seminar did help to explain how we did things, that we weren’t idiosyncratic, that we weren’t anti-victim and, yes, I do think that, in relation to the people there, it improved their confidence. So I think it’s a worthwhile exercise. The judgement 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. 

RA I wonder if judges overreact when they are attacked by law-and-order pundits in the tabloid media. Do you have to respond or is it something that you should let go into the ether and be forgotten?

TB I think that the only area where judges should respond is where there is an inaccurate summary of a 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’s at least the facts”, and you go from there.

RA Would you ever invite Ray Hadley or The Daily Telegraph around for a cup of tea and an educational chat?

TB I have – last year. [Hadley] was asked to the seminars – he didn’t come because 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. 

RA So one of the things journalists notice is what seems like a stream of suppression or no-publication orders coming from the judges, particularly since the Court Suppression and Non-publication Orders Act. I haven’t scientifically measured it – there just seems to be more notifications.

TB This surprised me and I asked the court public 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 where there is identity of victims, child sex offenders in sentencing, and where there is a retrial – there’s good reason for that. So there hasn’t been much more than that … we knocked back [Gina] Rinehart’s application for a suppression order; actually the Court of Appeal said no. 

RA In the speech you gave three-and-a-half years ago, when you were sworn in as Chief Justice of NSW, you said costs of litigation are an ongoing problem, and they seem to have been for a long time. Does that remain the case, and what processes have been put in place to contain costs?

TB 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 that could contain them. The second – 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 focused 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 Provision Act in litigation [dealing with inheritance disputes and wills] we require people at a very, very early stage to put an estimate on what the case is going to cost. Often that causes litigants horror, they will go to mediation and will settle very quickly. 

RA So it causes them horror once they see the projected costs? 

TB We’ve got a mediation service effectively there and it’s certainly clearing 50 to 60 per cent 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. 

RA So it seems that to have the capacity to litigate in court you’ve got to be either extremely wealthy or a large corporation at one end, or sleeping under bridges and getting legal aid at the other. The middle class cannot litigate.

TB The matters that I referred to are designed to try to make it affordable to 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 that go wrong, people defaulting on mortgages and claims of possession, the Family Provision Act that I’ve just referred to. It is horrendously expensive. How do you cut it down? I think what most of the courts can do and will have to do more and more in the future is ensure that the way cases are conducted is not extravagant … What I would very much like to do, to the extent that we’ve got the resources to do so, is have what are described as individualised justice in a case management sense. So you look at a case – 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 … 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 agreed facts, just put on your opposing contentions and no more than that. 

RA At your swearing in you said how much you loved your life as a barrister. Do you miss the bar?

TB 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.

This article was first published in the print edition of The Saturday Paper on Nov 15, 2014 as "Doing justice". Subscribe here.

Richard Ackland
is the publisher of Justinian. He is The Saturday Paper’s diarist-at-large and legal affairs editor.