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The importance of civility

The importance of civility

By Michelle Sharpe

Professional Reputation Workplace Workplace Relations 

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Snapshot

  • Bullying by lawyers may give rise to disciplinary proceedings. Professional conduct rules for both solicitors and barristers prohibit workplace bullying.
  • Bullying by judges may prompt an application that the judge recuse him or herself and/or provide fertile ground for an appeal of any decision made by that judge.
  • At an institutional level, bullying can be seen to undermine individual performance and workplace cultures and may ultimately hinder the administration of justice and the standing of the legal profession.

Bullying in any workplace is harmful to mental health. But bullying in the legal profession may have other consequences.

Popular culture suggests that civility is incompatible with zealous advocacy or that bullying is a rite of passage for legal practitioners. In fact, the best interests of the client and, more importantly, the administration of justice depend on civility. Unsurprisingly, as outlined below, incivility carries certain adverse consequences for legal practitioners and decision-makers.

What is civility?

The Macquarie Dictionary (7th edn) definition of “civility” includes “courtesy; politeness . . . polite attention or expression”. Conversely, “incivility” is defined as “rudeness” or “an impolite act”. Incivility is often confused, or conflated, with bullying. Although there may be some overlap, conceptually, these terms are defined differently.

Section 789FD of the Fair Work Act 2009 (Cth) defines “bullying” as being repeated, unreasonable behaviour by an individual, or a group, towards another that “creates a risk to health or safety”. Safe Work Australia has described “unreasonable behaviour” as “behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening”. A similar description of bullying can be found in both the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Solicitors’ Uniform Conduct Rules) and the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers’ Uniform Conduct Rules) (collectively the Uniform Conduct Rules) with one notable difference. That difference being that the conduct need not be persistent.

Why is civility in legal practice important?

Civility is essential in the administration of justice. In our jurisdiction, justice is administered through an adversarial system. The personal autonomy of litigants is a defining feature of this adversarial system. It is litigants who determine the issues in dispute and adduce evidence in a hearing. Chief Justice Spigelman (as he was then known) observed that the adversarial system “maximises the control that citizens have over the processes of legal decision-making which affect their lives” and “(t)his is a manifestation of the value that we (the community) attach to personal autonomy”.1 The Chief Justice went on to note:

“The core element of civility is the manifestation of respect for other persons . . . This public virtue assumes that there are broadly accepted rules for conduct: a system of public morality reflecting the core values of our society, particularly the respect for the freedom and personal autonomy of others”.2

It can be added that without civility there can be no “professional dialogue” between, and among, legal practitioners and decision-makers.3 Professional dialogue is essential for the efficient resolution of disputes. A lack of civility also diminishes respect for the work of our courts and tribunals and, as one US Appeals Court Judge noted, “(w)ithout such respect, there will be no law”.4

Civility may also be a safeguard against bullying in legal practice. Bullying poses a grave health risk. Research has established a clear link between bullying and psychological injury.5 Bullying has also been found to undermine productivity and efficiency, cause a loss of “knowledge capital” (as people either quit or reduce their work commitments) and foster negative public perceptions of an industry or an organisation.6

Employers, having a statutory obligation to maintain a safe working environment,7 are required to take all reasonable steps to prevent workplace bullying. And both the self-employed and employees, having a statutory obligation to refrain from causing harm, are required to abstain from workplace bullying.8 Bullying may also amount to a crime. In Victoria, the definition of “stalking” in the Crimes Act 1958 includes certain behaviours commonly associated with bullying such as making threats, using offensive language or otherwise acting with the intention of causing psychological harm.9

In addition to these general legislative proscriptions, bullying, or even uncivil, behaviour by decision-makers or legal practitioners may also have certain additional consequences unique to legal practice.

Incivility by decision-makers

Former Chief Justice of the High Court The Hon Murray Gleeson once observed that “(j)udicial legitimacy, which is essential to the acceptability to the public, and to the other two arms of government, of judicial action, is based upon fidelity to certain legal and ethical standards”.10 Arguably, there may be four different types of consequences that flow from a decision-maker’s failure to act civilly.

First, the decision-maker’s conduct may give rise to an apprehension of bias. A decision-maker must disqualify him or herself from determining a matter if “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.11 The principle is rooted in the requirement that justice should not just be done but also be seen to be done and the requirement that the decision-maker be independent and impartial.12 Litigants must bring an application for a decision-maker to disqualify him or herself before any decision is handed down.13 Waiting until a decision is handed down before complaining about apprehended bias deprives the decision-maker of the opportunity to dispel any apprehension at the time it might be said to arise.

Second, the decision-maker’s decision may be subsequently set aside on appeal if the court of appeal finds that the decision-maker’s conduct deprived the parties of procedural fairness. See, for example, Kuek v Wade & Magistrates Court of Victoria.14 In that case the Court of Appeal set aside a magistrate’s decision after finding, inter alia, that the magistrate had behaved in a non-judicial (but not bullying) manner by ignoring the parties’ pleadings, re-defining the issues in the proceeding and discouraging a litigant from adducing any further evidence on an issue that the magistrate had deemed irrelevant.15

Third, the decision-maker or court or tribunal may, in exceptional circumstances, be ordered to pay costs. Costs may be ordered against a decision-maker where there is a clear case of misconduct or gross impropriety by the decision-maker. Such an order was made in The Magistrates’ Court of Victoria at Heidelberg v Robinson.16 In that case the magistrate had been “brusque and offensive”17 during a plea in mitigation given by a duty solicitor in respect of charges of intentionally damaging property. The magistrate adjourned the hearing to a date in two months’ time and told the duty solicitor that unless, in the interim, the defendant paid for the property damage caused by the defendant he would impose a conviction penalty and a custodial sentence of two months. When the matter came back before the magistrate, the magistrate continued to insist that unless the defendant paid for the damage he would “go in”. The solicitor subsequently brought an application that the magistrate disqualify himself. In reply the magistrate threatened to hold the solicitor in contempt if the solicitor persisted in making his application. The Court of Appeal awarded costs against the Magistrates’ Court, finding that the magistrate had engaged in misconduct by behaving like a bully and abusing power.18 Brooking JA, in particular, described the magistrate as having used his “contempt power as an instrument of oppression”.19

Fourth, the decision-maker may be the subject of a complaint to the Judicial Commission of Victoria (JCV). The JCV is an independent statutory body established to investigate complaints against judicial officers and Victorian Civil and Administrative Tribunal (VCAT) members.20 On receiving a complaint the JCV may either dismiss the complaint or refer the complaint to the head of jurisdiction with recommendations about the future conduct of the officer. In respect of non-judicial VCAT members, the JCV has the power to recommend removal. Victorian barristers also have the option of making a complaint to the president of the Victorian Bar. Such complaints are dealt with in accordance with a written protocol between the Supreme Court and the Bar.

Incivility by legal practitioners

Incivility or bullying by legal practitioners may result in disciplinary action, a personal costs order or contempt (if directed at a court or tribunal).

In respect of disciplinary action, the Uniform Conduct Rules contain several rules requiring legal practitioners to act civilly in the course of practice. Rule 4.1.2 of the Solicitors’ Uniform Conduct Rules expressly requires solicitors to “be honest and courteous in all dealings in the course of legal practice”. Rule 34.1 commands that solicitors, in representing clients, refrain from:

  • making any statement, on behalf of a client, which “grossly exceeds” the client’s legitimate assertion of rights and which misleads or intimidates the other person
  • threatening to institute criminal or disciplinary proceedings if the client’s civil liability is not satisfied
  • employing tactics, beyond “legitimate advocacy”, which are aimed at embarrassing or frustrating the other person. Indulging in such conduct, in breach of the Solicitors’ Uniform Conduct Rules, may also give rise to the breach of rule 4.1.1 – the duty to act in the best interests of the client. As the Chief Justice of the New South Wales Supreme Court observed in Knight v Carter:21 “. . . it is part of the role of the legal practitioner in such cases to assist the client by endeavouring to take some heat out of the dispute rather than writing provocative letters . . . The Court expects that solicitors will behave professionally and bring an objective approach to their clients’ problems so that the clients may understand the parameters of the dispute more realistically”. Rule 34.2 also commands solicitors to refrain from engaging in conduct, in an attempt to obtain instructions to act, that is likely to harass or oppress a person who, at the time, is at a significant disadvantage due to some injury.

The Barristers’ Uniform Conduct Rules contain a number of similar rules requiring barristers to act civilly. Rule 8 generally proscribes a barrister from engaging in conduct that is:

  • dishonest or otherwise discreditable
  • prejudicial to the administration of justice
  • ikely to diminish public confidence in the legal profession. In 2013 the Victorian Bar’s Ethics Committee published a bulletin cautioning barristers against incivility in their dealings with other barristers. As with solicitors, incivility between barristers does not advance the best interests of the client or the administration of justice. Lord Justice Singleton, in Beevis v Dawson,22 observed: “. . . a member of the Bar is a helper in the administration of justice. He [or she] is there to help the judge and, when there is a jury, to help the jury, to arrive at a proper result in the dispute between the parties … Continuous bickering becomes a burden for everyone in court – for judge and for jury – and it is almost impossible for justice to be done if that goes on”.It is convenient to note here that the Victorian Bar has a Grievance Policy to mediate disputes between Victorian barristers.

The Barristers’ Uniform Conduct Rules also expressly provide that barristers should not:

  • give advice to invoke the coercive powers of the court principally in order to harass or embarrass a person (rule 60)
  • make allegations that are not reasonably justified or principally to harass or embarrass a person (rules 61 and 62)
  • make any allegation of fact or any allegation of serious misconduct against any person without a proper basis (rules 64 and 65)
  • make a suggestion in cross-examination on credit unless the barrister reasonably believes that acceptance of that suggestion would diminish the credibility of the witness’s evidence (rule 67)
  • in submissions in mitigation of a client’s criminality, disclose the identity of a person alleged to have engaged in misconduct when that person is not able to answer those allegations (rule 68).

Importantly, both sets of the Uniform Conduct Rules contain a prohibition on workplace bullying: Solicitors’ Uniform Conduct Rules, rule 42.1 and Barristers’ Uniform Conduct Rules, rule 123.

Conduct in breach of these Uniform Conduct Rules may result in disciplinary proceedings. The same conduct may also amount to a breach of one or more of the overarching obligations owed by a practitioner under the Civil Procedure Act 2010 (Vic). Relevantly, these overarching obligations include, among other things, an obligation to:

  • not make any claim or response that does not have a proper basis (s18)
  • not to take any step in a civil proceeding unless the practitioner reasonably believes that the step is necessary to facilitate the resolution of the proceeding (s19)
  • cooperate in the conduct of a civil proceeding (s20)
  • use reasonable endeavours to resolve the dispute (s22)
  • use reasonable endeavours to narrow the issues in dispute (s23).

A breach of one or more of the overarching obligations may result in a court making a personal costs order, under s29, against the practitioner. A practitioner may also be legally required to pay money by way of a fine or even be committed to prison if the conduct amounts to a contempt in the face of the court.

The Supreme Court of Victoria, being a court of superior jurisdiction, has an inherent jurisdiction to punish contempt.23 The County and Magistrates’ Courts and VCAT are empowered under legislation to punish contempt.24 At common law, words or conduct, in the face of the court, may amount to contempt if they are of a kind that would tend to interfere with the administration of justice. Such conduct would include, for example, wilfully insulting a judge because such an insult “necessarily interrupts the course of a trial and tends to divert attention from the issues to be determined”.25 Under the VCAT Act, a person is guilty of contempt if they (intentionally or otherwise) insult a VCAT member, or insult or hinder any person appearing at VCAT, or if they misbehave or interrupt a VCAT hearing. An example of contempt under similar legislation can be found in MacGroarty v Attorney General (Qld).26 In that case a judge asked, “Will you keep quiet while I am speaking?” to which the barrister replied “’No, I won’t”.

Civility is central to the administration of justice. Incivility, whether by a decision-maker or legal practitioner, hinders the administration of justice and may attract adverse consequences. 

Dr Michelle Sharpe is a barrister at the Victorian Bar and practises in general commercial, regulatory and disciplinary law. Dr Sharpe is also the author of Unconscionable Conduct in Australian Commercial and Consumer Contracts, LexisNexis, September 2018.

1. JJ Spigelman AC, “Tolerance, Inclusion and Cohesion”, (2006) 27 Australian Bar Review 133 at 138.

2. Note 1 above, at 139.

3. The Honourable Rhesa Hawkins Barksdale, “The Role of Civility in Appellate Advocacy”, (1999) 50 South Carolina Law Review 573 at 577.

4. Note 3 above.

5. See Associate Professor Maryam Omari, Towards Dignity & Respect at Work: An exploration of work behaviours in a professional environment, August 2010 (“Omari Report”), at [30], [44] and [88].

6. Note 5 above, at [32] and [34].

7. Occupational Health and Safety Act 2004 (Vic), s21.

8. Note 7 above, ss24 and 25.

9. Sections 21A(2) and 21A(8).

10. M Gleeson, “The .Judiciary as the Third Arm of Government”, Judicial College of Victoria Online Journal, Vol 1, 2014, 15 at 17.

11. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per McHugh, Gummow and Hayne JJ.

12. Note 11 above.

13. Vakuta v Kelly (1989) 167 CLR 568 at 572 per Brennan, Deane and Gaudron JJ and at 587-8 per Toohey J.

14. [2017] VSCA 329.

15. Note 14 above, at [95]-[97] per Tate and Kyrou JJ.

16. [2000] VSCA 198.

17. Note 16 above, at 240 per Brooking JA.

18. Note 16 above, at 235 per Brooking JA (Buchanan JA agreeing) and at 244 per Charles JA.

19. Note 18 above.

20. Judicial Commission of Victoria Act 2016 (Vic).

21. [2015] NSWSC 609 at [27].

22. [1957] 1 QB 195 at 201.

23. Broken Hill Proprietary Co Ltd v Dagi [1996] 2 VR 117 at 137 per Brooking JA.

24. County Court Act 1958 (Vic), s54, Magistrates Court Act 1989 (Vic), s133 and Victorian Civil and Administrative Tribunal Act 1998 (Vic), s137.

25. Lewis v Ogden (1984) 153 CLR 682 at 688 (Full Court).

26. (1989) 167 CLR 251 at 253.


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