Justice Young, the editor of the Australian Law Journal, has gone public with his frustration at litigants constantly ringing his associate to dob in the other side for missing deadlines. Here’s The Australian‘s article. He reiterates the unambiguity of the rule against unilateral communications. Generally, one never corresponds with a judge in relation to litigation. One communicates in writing or by oral submissions only in the courtroom under the theoretical glare of public scrutiny. If it is necessary to communicate a document outside of the courtroom, one addresses it to the judge’s associate. Judicial detachment is achieved by both parties to the communication communicating only through the associate.
Differerent courts, and different judges have different attitudes to out of court communications. When you can call the associate, and to what extent it is permissible to communicate matters of substance, as opposed to merely procedural matters (and where the dividing line is between the two) is not written down anywhere. This kind of unwritten lore is the kind of thing which makes the courts inaccessible to those who are not in the know. All of these matters should be in the rules. It might be better, too, if all out of court communications went through one gateway: the Registry. It works tolerably well at VCAT, which handles innumerable matters every year, though there are often delays of up to a day or even more.
The golden rule is that any out of court communications with the decision maker must be made contemporaneously with the copying of it to the other side. I strongly suspect that faxing the associate and copying the communication to the other side in the same day’s post would not suffice. Contemporaneity for this purpose requires more than that.
And what of modern trend of associates calling counsel? What should be done then?