From the President – Hearsay Issue 47: February 2011
Any exhortation from me that member barristers ought extend courtesy to a judge or witness would be characterised, ordinarily and fairly, as gratuitous if not impertinent. My message here, however, is not so much a reminder of adherence to courtesy but rather a warning not to overdo it!
Common courtesy, transcending court appearance, often entails the practice of salutation eg, “Good morning Mr Smith”.
Most counsel have engaged in or received such salutation in court, and without objection, in any exchange with the judge, magistrate or tribunal member conducting the case, or occasionally in engagement of a witness. As to the latter, the taking of evidence by telephone is a good example where salutations often punctuate the early exchange.
I recall a Bar Association CPD seminar on applications’ court practice, conducted by Justice Byrne SJA several years ago, in which his Honour deprecated the practice of salutation by counsel in that jurisdiction. His Honour, as I recall, characterised it as pointless or irrelevant in disposition of the chamber business at hand.
The practice, surprisingly, was recently the subject of curial address. By reason of that I pen this note.
In Wilson v Department of Human Services — Re Anna [2010] NSWSC 1489, Palmer J, in the equity jurisdiction of the Supreme Court of New South Wales, dealt with an application under the parens patriae jurisdiction engaged in an attempt by a Ms Wilson to reverse a decision of the Children’s Court whereby her child was ordered placed in foster care.
Palmer J, in additional remarks, recorded his views, and apparently those of the Supreme Court of the New South Wales judiciary, deprecating the practice of salutation from bar to bench:
[106] The second matter calling for comment occurred in the conduct of the case in this Court but it is not peculiar to this case — it has been observed by a number of Judges in the Supreme Court and it is currently the subject of discussion between this Court, the Bar Association and the Law Society. I refer to the practice of advocates, which seems to have developed over recent years, of announcing their appearances to the Bench or beginning the examination of witnesses with the salutation “Good morning, your Honour” or “Good afternoon, Mr Smith”. I am informed that this is a practice which has developed in the Magistrates’ Courts. The Supreme Court is of the view that it is a practice which should be abandoned in contentious litigation.
[107] Lest it be thought that this view is the relic of a stilted and now-outdated judicial self-esteem, let me illustrate, by reference to what occurred in this case, how the practice can cause substantial misperceptions prejudicial to the conduct of a fair trial.
[108] Mr Chapman, who is obviously a highly experienced and capable solicitor frequently conducting cases in the Children’s Court, routinely greeted me with the salutation of “Good morning, your Honour” or “Good afternoon, your Honour” each time he announced his appearance at directions hearings and on each day of the trial. In accordance with the usual etiquette of this Court, Mr Moore of Counsel did not. Mr Chapman’s apparent familiarity with the Judge could have caused a misapprehension in the mind of Ms Wilson, already distrustful of the judicial system, that Mr Chapman enjoyed a relationship with the Judge which was something more than merely professional. Such a suspicion should never be allowed to arise. A Judge should not feel compelled to allay such a suspicion by rebuking an advocate for misplaced courtesy.
His Honour went on to eschew like salutation, by a cross-examining counsel of the witness, on resumption after any routine adjournment:
[112] … [A] witness should never be placed in the position of having to greet politely a cross examiner who is an avowed opponent. An advocate should never use this technique to score against a witness. It is far better to avoid the perception that this technique of discrediting a witness is being used unfairly.
[113] For these reasons, the practice of salutations by advocates should be completely abandoned in all Courts in all contentious litigation.
It is noteworthy that the posited foundations of the above critique are those of apparent bias and procedural fairness respectively. Thus, by parity of reasoning, the bench ought be like constrained. The judge ought refrain from any salutation vis-a-vis any or both counsel (the latter lest he or she be observed looking at one side of the bar table), or a witness whose credit is in issue.
It does seem surprising that counsel fall to be criticised for courtesy on account of the advantage it may, or importantly may be seen to garner for his or her client. Overt, even if mild discourtesy to judge or witness surely is more deserving of censure.
Perhaps like most things in life a barrister need maintain a sensible balance in demeanour. That is often difficult in occasional heat of adversarial litigation.
I have written to all heads of jurisdiction to raise the matter for their consideration and elicit a response. I will revert to members when I have heard back.
Most barristers were raised on, and many practise the proverb “All doors open to courtesy”. Suffice it to say, echoing the sentiment of Palmer J in Wilson, the door thus opened may not always lead to a place of easy repose.
R J Douglas S.C.
President
Such a topic was mentioned by Judge Morzone KC at point no.17 in Court Etiquette: 50 Tips on how to Behave in and for the Courtroom – Hearsay as contained in Hearsay Issue 94: December 2023.
