Judge Margaret Sidis

DISTRICT COURT OF NEW SOUTH WALES

Born in England, Margaret Sidis came to Australia in 1968 as an adventure with a view to remaining for the mandatory 2 year period.  She fell in love with Sydney and gained employment as a secretary at Hall & Hall Solicitors.  She subsequently decided to settle in Sydney and enrolled in the SAB course in 1970.  She graduated with a Diploma of Law in 1974 and was admitted to practice as a solicitor.  She became a partner in the firm Hall & Hall in June 1978, and thereafter a partner on the merger in 1984 with Sly & Russell, later Sly & Weigall, now Deacons.  Until 1988 she practised in commercial law, specialising in property development, planning and environmental law.  She established the Construction Law Division of Deacons and thereafter practised in construction and engineering, involving ligation and contract preparation.   

She was appointed to the District Court on 1 February 1995, sitting mainly in the civil jurisdiction of the Court.  There Judge Sidis has been exposed to a wide variety of litigation, including personal injury actions of all types, commercial and construction disputes, trade practices, and property disputes arising out of family and de facto relationships.   

She has a special interest in alternative methods of dispute resolution, and in 1990 studied the principled negotiation techniques developed by Dr Roger Fisher at Harvard Law School. She became a Trained Mediator in 1998.   

She married in 1974, had two children: a son 1976 and a daughter 1978; Divorced in 1989 and remarried in 1990.  Judge Sidis writes regular articles for Direct Link and gives occasional addresses to organisations such as Women Lawyers Association, Young Lawyers, and APLA. She also engages in photography as a hobby and reads for relaxation anything that comes between two covers!

Interview with Judge Margaret Sidis

Do you see yourself as a leader?  What vision are you working towards? 

Yes, I do like to think of myself as a leader, not only for women but for members of the legal community generally.  However, I rarely pass up an opportunity to go and talk to a women’s group when invited to do so. 

When it comes to vision, it would nice to be able to say that I see myself working towards a society which operates with equity and without crime.  Unfortunately Utopia is not within the range of possibilities that I see.

I prefer and have always preferred to operate according to a set of values rather than towards a fixed goal or vision.

This is because of my view that in modern society long term planning is increasingly less viable.  The course of one’s life is no longer predictable.  On a lesser scale, the course of one’s career is equally unpredictable.  I therefore like to think that by using certain values as reference points, some flexibility is possible as is the ability to deal with change when it comes. 

I was asked when I was a solicitor to prepare a vision statement.  Instead I adopted the following values which I have brought with me to the Bench.  I still regard them as appropriate and I see no reason why I should not continue to live by them whatever the future may bring.

They are:

1.          Integrity in all things

2.          Respect for all persons with whom I deal, personally or professionally

3.          Pride in the things that I achieve

4.          Leadership in the community of the law

What qualities do you see as being necessary for one to qualify for the position of a District Court Judge? 

Aside from the obvious need for technical competence the characteristics that I would look for if I were recruiting for the court would include:  a natural ability to listen and a capacity for patience and hard work.

The recruit would have to demonstrate an ability to stay awake in the stale air of the many country court rooms which are not air conditioned.

A capacity to work with a team is also important.  It is often forgotten that a functioning court room involves more persons than the judge.  The support staff includes the associate, court reporter or monitor, court officer and court office staff.  There are also many occasions, particularly in the criminal jurisdictions, where the judge is required to work with a jury.

Most important is the requirement for fairness.  This applies not only to the final outcome of any process but to the conduct of the court proceedings.

What have been some of the highlights of your career? 

I am happy to say there have been many.  I worked for many years in town planning, environmental law and in the areas of construction and engineering.

As a result I am able to point to buildings or developments with which I was involved.  They include the Bradman Museum at Bowral and the remediation of the old gas works site at Oyster Cove and its subsequent development for residential purposes.  I am also able to point to areas of natural bush which I was able to preserve from development.

Receiving my LL.M in 1994 after three years of part time study was also a major highlight.  My children by this time were teenagers and less demanding of my time.  I felt somewhat stale after many years in practice and enjoyed very much the opportunity to return to the theoretical and academic side of law.

How do you cope with balancing your profession and personal life? 

With great difficulty.  This is never easy for anyone who is a committed member of the legal profession, female or male.

For women, however, it is especially difficulty when young children are involved.  I used to plan my work around my children.

I got up very early and was able to work at home before they woke up.  I was then able to take them to school which I did until they when to high school.  I came home in time to see that they attended to their homework and to read a bed time story and then, if necessary, I worked once they were in bed.

I rarely missed their many school presentations.

Obviously, I had more flexibility as a solicitor.  I would not have been able to work in this way had I been at the Bar or on the Bench.

This sort of life leaves little time for oneself.  However, looking back I realise that it is a very short term situation - 12 years at most.  Children grow up and present fewer demands as they grow.

What do you perceive as being some of the difficulties experienced by women in the legal profession? 

I have been fortunate in having at the commencement of my career a considerable amount of support from the partners of the fairly small firm for which I worked.  I appreciate that not all women are able to secure this measure of support.

There appears to be a failure on the part of many to appreciate that most women simply are unable to work in the same way as men.  This does not mean that they could not achieve the same results in some other way.  Thus, it is an absence of flexibility which is the major problem.

My employers at the time my children were very  young allowed me to do what I needed (and wanted) to do in caring from them.  They appreciated that I could still fulfil my commitments to them and contribute to their profits (which I did!).

Aside from the obvious problems which arise in dealing with young children, one of the partners in that small firm was Mahla Pearlman, now Justice Pearlman and Chief Judge of the Land and Environment Court.  Her philosophy was that there was absolutely no difference between a male and a female practitioner and she conducted her practice on that basis.  In other words, you just got on and did what you had to do professionally to provide the standard of service expected by the client.  She was an excellent role model and adopting that philosophy obviously worked for both of us.

How have you come to break through the Glass Ceiling? 

I am not sure that I have.  I think the ceiling height has been raised during the course of my career and it is still going up.  I like to think that one day it will be removed entirely but it is going to take a very long time.

I suspect that there are opportunities that have not been presented to me, not simply because I am a woman, but because for that reason I have not mixed in the circles where my capacity as a lawyer has been tested and recognised.

On the other hand, I have no illusions about the timing of my appointment to the District Court.  At that time, of over 60 judges only two were women.  It was obvious that the need to redress this imbalance was a major factor in my appointment.

What changes would you like to see in your profession to enhance leadership and integrity? 

This is a huge question.  To do it justice would require a book!

Overall, I think the legal profession acquits itself well in terms of leadership and integrity.  Lawyers are prominent in leadership roles in many areas outside the law and in many community activities.  They are also aware that, whilst they represent the interests of their clients, their overriding responsibility is to the Court; that is, to the system of justice into which the Court has admitted them.

Having said that, there are always those who will abandon integrity and interpret their obligations in ways which verge upon abuses of the system by adopting tactics which lead to unfair outcomes.

I am not talking in this context about the normal cut and thrust of litigation where the skills of the representatives of the various parties are put to the test.

I am concerned at situations where the power between the parties is not balanced, usually in terms of financial capacity, which the stronger party exploits to deprive the other of its rights.  Unfortunately, it seems that many of those in a position to know better, whether in public service or industry, still seek out so called ‘tough’ lawyers who are prepared to engage in such tactics. 

This situation will only change when there are enough members of the profession who put integrity first and decline instructions to behave unfairly in these circumstances.

Are you satisfied with the way in which society perceives your profession?

 No.  I think that no lawyer is.

I watched a television programme recently about a large African rat which is being trained to detect landmines.  I joked to my husband:  This is because there are some things that lawyers won’t do. 

The problem is that, aside from the preparation of wills or buying a house where fees are set and are moderate, most people only come to a lawyer when they are in trouble.  In the same way as going to the dentist, no-one looks forward to or enjoys engaging a lawyer.

The perception is that lawyers exploit their clients’ troublesome situations by charging excessively high fees. 

When it comes to judges, there is of course always one party who thinks that the decision arrived at is wrong.  Judges often receive surveys being conducted by Ph.D students.  One such survey asked me for my views on whether judges should be the subject of appraisals by members of the legal profession.  My response was that a judge’s function is to uphold the law, not to be popular.

Do you believe that judges should express their opinions on matters which they perceive to be unjust or should they be silent? 

I have sworn to uphold the law.  Therefore when it comes to administering or applying the law my opinion does not matter.  For this reason, I believe as a general principle that such opinions should remain off the public record.

This does not mean that judges can not and do not make submissions in appropriate ways when they become aware of situations of injustice which they perceive as arising out of legislation.

Other situations of injustice, not arising out of legislation, do arise from time to time.  In those circumstances I may venture a comment in open court.  Sometimes it results in a remedy.  Sometimes the comment is ignored.

The general principle would have to give way in situations of serious injustice.  The Chief Justice of the High Court, Justice Gleeson, recently commented that if a judge was unable to come to terms with a particular piece of legislation, he or she should resign.  I think that is correct and that if we have a Bench which it too attached to its position in society to react to serious injustice then we come close to totalitarianism.

What is your view to: 

a)          Mandatory sentencing? 

I find sentencing to be one of the most difficult exercises that I am required to undertake in my current position.  I know of no judge on the Court who does not spend time and energy working through and, in some cases, agonising over the correctness of a sentence.

I have often suggested that those who complain that judges are soft in sentencing should come and spend a few days in Court and experience the problems involved in the sentencing process.  This suggestion has, to my knowledge, never been taken up.

In New South Wales the Court is blessed with sentencing legislation which spells out the principles to be applied, with authority of Appeal Courts amplifying and explaining those principles and with guideline judgments of the Court of Appeal.

In those circumstances, my view is that mandatory sentencing is unnecessary.

Aside from this, I regard it as a political tool which does not have the flexibility to provide justice to the offender, the victim or society as a whole.

b)          Reconciliation? 

This process is absolutely necessary.  Our past treatment of indigenous Australians has lead to divisions internally within our community and to condemnation internationally.

Indigenous Australians are significantly over represented in the criminal justice system.  Some still live in appalling conditions and simply do not have the capacity for self help that many seem to propose as the solution to their problems.

Until all members of the Australian community get together to resolve past differences and to work to overcome the consequences of those differences, there is little hope for improvement.

c)       the legalising of heroin? 

           This is one proposition that I could not possibly support.  This drug is destructive and addictive.  I have seen too many young people in a dock pleading not to be sent to gaol for crimes committed in order to keep up with their addictions.

           I am very supportive of the Drug Court initiative, which I believe is having some success.  I also believe that much more must be done to provide facilities to assist in rehabilitation to the point where any imprisoned addict should automatically receive appropriate treatment.

What is your interest in alternative dispute resolution?  Do you believe that the legal system does enough to encourage parties to pursue alternative methods to resolve disputes? 

I am very enthusiastic about this important adjunct to dispute resolution services.  I have trained and acted as a mediator and I studied principled negotiation at Harvard Law School.

I am aware that many within the profession, including representatives of the Law Society, Bar Association and the Courts share this enthusiasm.

There are those who are less than keen on ADR, believing that it will supplant existing methods of dispute adjudication.  There is no chance that this will occur.  There will always be a place for formal adjudication as much as there is for this alternative method of assisting people through their legal disputes.

In the right circumstances, ADR can and does deliver results to parties which are much more positive and tailored to their needs.  In so doing, it avoids the trauma, emotional and financial, of fully contested litigation.

As to encouragement, something is happening out there.  Many disputes never come near a court.  Statistics indicate that of the claims filed in the courts, only 5% proceed to adjudication.

In addition, ADR is now a recognised part of the curricula of just about all law schools in Australia, with many offering specialised study in this field.

What advice would you offer to women considering law as a career?

 I would give this advice to anyone - female or male.  That is, do not enter the profession (a) because you achieved the appropriate TER or (b) because you want a significant income.

The only reason to take up law as a career is because you have a passion for it.  Law is not just a job, it is a calling.

Most good practitioners do earn more than average incomes but only through the application of many long and hard hours of work.  The legal profession is therefore not a place for the half-hearted.

To women in particular, I would say that it is possible to have a career in the law and to have a family.  For a few years, while children are very young it will seem as if there is little time left over for yourself or your own interests.

During this period you need to stay very focussed on your long term objectives because it will be a difficult time and you will often wonder why you are using every ounce of energy to deal with everything but your own needs.

I can only say that many times, looking into the future, I felt that I was sacrificing my own time and interests.  Looking back, I have no doubt that it was very worth while.

What are your long term aspirations? 

I am currently three years away from the point where I will be in a position to decide whether to retire from the District Court or stay on, possibly to the statutory retirement age.  I think this latter possibility is unlikely, since the age in question is 72.

However, in three years time I will consider my options (and any offers that might come my way!).  I doubt that I will go back into active practice.

My options include academia, publishing or retiring from the law entirely and indulging in my other passion - photography.

Whatever I do, my one aspiration is that I be remembered as a judge who displayed the values of integrity, respect, pride and leadership and above all who was prepared to listen and to be fair.