Thank you for agreeing to speak with Hearsay.
10 minutes with… the Honourable Justice David Boddice
Thank you for the invitation.
You were admitted to the Bar in 1984, took silk in 2001 and sworn in as a Judge of the Supreme Court in 2010. I said about you at your swearing in, on behalf of the Bar Association:
“Justice Boddice, you are a worthy appointee to this important court. You harbour expertise across a raft of legal disciplines. Furthermore, you enjoy a neat balance of skill and calm at the interface of court advocacy. Despite a busy practice in your 26 years as a barrister, you made time to serve as a Tribunal member and Corrective Services visitor. In addition, the community of barristers is indebted to you for your service at an administrative level:
You were a member of the Council of the Bar Association from 2002 to 2004.
You were a member of the Association’s Professional Conduct Committee from 1998.
You were chair of the Association’s Continuing Professional Development Committee from 2007. CPD has been the Bar’s great success story and I will miss your counsel in this regard.
Your Honour was a member of the Advocacy Training Council of the Australian Bar Association from 2008.
You were a director of Barristers’ Chambers Ltd, the owner of the Inns of Court, from 1993 and you were chairman of the board of that company from 2006.
You were, under your appointment, Vice President of the Medico-Legal Society of Queensland, and a significant contributor to the education undertaken by that august body.”
Do you believe pressure of practice and associated professional service can contribute to a barrister accepting judicial appointment?
Whilst there are many reasons why a barrister may decide to accept judicial appointment, the duties and obligations of a Judge hardly fall into the category of slowing down. Often it is the desire to contribute back as well as an interest in hearing and determining cases rather than arguing them that persuades a barrister to leave a busy professional practice to accept judicial appointment.
What does a judge forfeit in taking appointment?
A busy barrister’s practice involves daily interaction with fellow barristers, solicitors and clients. Much of the professional work is done in a collaborative way. Judicial decision making is the exact opposite. That can be isolating although the sense of isolation is relieved by membership of a collegiate court.
You have now served over 12 years in that court sitting in all divisions. What do you see as the strengths of the court?
The strength of the Supreme Court lies in the fact that the judges hear and determine cases across both the civil and criminal jurisdictions of the court. It ensures a very collegiate environment. All shoulder a similar burden.
What do you say to the view put abroad by some media that judges sit in an Ivory Tower, bereft of empathy for the vox populi?
Sadly, judges on a daily basis see and hear the consequences of life for all manners of individuals, be they litigants in a civil proceeding or defendants in a criminal proceeding. That experience is the exact opposite of a person in an Ivory Tower. In many ways, judges often have a better understanding of the impacts of society than people who, fortunately, never have reason to have contact with the justice system.
The judicial retiring age in Queensland – as in federal courts – is 70 years but in New South Wales it was recently increased from 72 to 75 years. Do you consider the Queensland position warrants review?
No. Whilst there are judges who are forced to retire at a time when they are still able to perform the duties and obligations of a judge, it is difficult to remove a judge who, due to the consequences of age, is no longer able to fully perform those duties and obligations. That circumstance calls for a level of compromise to avoid the distressing and embarrassing circumstance that would arise if a judge was required to be removed due to an inability to fully perform those functions. The setting of any retirement age always involves an arbitrariness.
What are factors at play in a judge juggling the competing elements of maintaining a system of justice and avoidance of waste of judicial resources respectively?
The primary factor is a recognition that there are finite judicial resources and ever-increasing demands on those resources. Those competing considerations necessitate a refinement of the allocation of available judicial resources to ensure not only the efficient determination of legal proceedings but also the timely disposition of those proceedings. What cannot be compromised in those steps is the provision of a just determination.
Do you believe judges assume that if a weak – but still arguable – submission is made by counsel, it is necessarily one which counsel advised ought be pursued?
No, although the way in which the argument is presented can sometimes suggest that the submission was one endorsed by counsel.
On some – hopefully rare – occasions you have formed a clear view that the counsel appearing before you are insufficiently prepared or briefed. How do you manage that when it ensues?
Fortunately, they are very rare occasions. Judges are also careful not to draw such a conclusion as the court generally will have little information as to when counsel was briefed and with what material. Both those factors go to the heart of proper preparation. On the rare occasion when it does happen, the role of the judge is to ensure a just determination of the issues. That may necessitate standing the matter down to later in the day or in an extreme example, an adjournment so that counsel may speak to more senior counsel as to the course of the hearing.
Given modern technology – including artificial intelligence software and electronic conferencing facilities – coupled with the cost of litigation, do you see the role and relevance of the Bar changing in the medium to long term?
Whilst modern technology can facilitate an expeditious hearing of a legal dispute, there is no substitute for an in-person hearing of disputes involving the giving of oral evidence and the making of substantial oral submissions. The experiences during the pandemic have merely enhanced the importance and relevance of the Bar. They serve to support an argument that whilst steps need to be taken to address the prohibitive cost of litigation, the adoption of remote hearings is not a solution. Artificial intelligence software is also not a solution. Much judicial decision making contains within it discretionary judgements. That human aspect cannot be replicated by artificial intelligence software.
Is there anything the Bar can do to even further enhance the system of justice?
At present, disclosure and unnecessary interlocutory applications are the major contributors to costs of litigation. Barristers can assist in the efficient resolution of disputes by limiting these contributors to only genuinely necessary steps. Members of the Bar also need to recognise that unlimited time for oral submissions is no longer acceptable. Good advocacy increasingly depends on excellent written advocacy with oral advocacy limited to addressing the issues that arise as a consequence of opposing submissions.
You have many interests outside the bench. Among those you are the longstanding legal patron of the Medico-Legal Society of Queensland and an active contributor to that Society’s activities. In what manner does that organisation – harbouring many hundreds of members – function at the legal interface?
That Society was formed to address the need for barristers and their instructing solicitors to understand medical terminology and the circumstances of medical decision making and the corresponding need for medical practitioners or expert witnesses to understand that medical decision making, in the context of a legal dispute, involves legal determinations. That the Society is, this year, 70 years old and has an ever younger membership cohort across the Bar, solicitors and doctors, shows its ongoing relevance to assisting in that mutual understanding.
What is your favourite legal movie, and why?
A Few Good Men. It highlights the fact that however good an advocate’s performance, the result may still be unsatisfactory for a client.
What is your viewing preference: footy, documentaries or streaming services?
Who do you think will win the NRL State of Origin series in 2023?
Like any good Judge, I will await evidence of the teams and their respective strengths.
Thanks for speaking with Hearsay.