Recent decisions

Recent Decisions

Case study 1

Incorrect Decision

The complainant alleged that her ex-partner committed perjury and the judicial officer failed to consider her evidence in a family violence intervention order application. The complainant emailed documents to the court prior to the hearing, but did not attend court on the day of the hearing.

Decision

The Commission dismissed the complaint as it related solely to the merits or lawfulness of the decision made by the judicial officer. The Commission does not have jurisdiction to investigate complaints which relate solely to the merits or lawfulness of a decision or procedural ruling made by the judicial officer concerned.

Case study 2

Inappropriate comments and overbearing conduct

The complainant alleged the judicial officer made persistent and derogatory comments towards a party in court which was not an appropriate method or forum for expressing such matters.

Decision

The Commission investigated the complaint by listening to an audio recording of the proceeding. It considered that the forcefulness with which the judicial officer made his point was likely to be distressing for the party concerned. Some of the comments made by the judicial officer were strongly worded, inappropriate and offensive. The criticisms were amplified because they were used repeatedly by the judicial officer on three occasions during the hearing. The judicial officer’s sarcasm was repeatedly cynical and this added to the impression the judicial officer was hectoring and mocking the party. The repeated use of sarcasm can become a form of bullying and the Commission formed the view that it was not appropriate for the judicial officer to make strongly-worded complaints about the party.

The Commission referred the complaint to the Head of Jurisdiction because the matter warranted further consideration on the grounds that the conduct of the Officer may have infringed the standards of conduct generally expected of judicial officers and non-judicial VCAT members.

The Commission recommended the judicial officer:

1. treat all court users with courtesy and respect
2. restrain from excessive criticism, the repeated use of sarcasm and other overbearing conduct
3. consider undertaking training on effective communication.

The judicial officer accepted the Commission’s recommendations and resolved to treat all court users with courtesy, dignity and respect and to refrain from displaying excessive criticism, sarcasm and overbearing conduct.

Case study 3

Conflict of interest

The complaint alleged the Officer appeared as the legal representative for some of the applicants to a proceeding and did not disclose he was an Officer in his jurisdiction. During a break in the proceeding, the opposing party noticed the Officer use a security card to access an area reserved only for Officers and staff and which was off limits to the public. After conducting some internet research, the opposing party discovered the Officer was an Officer in the jurisdiction.

Decision

Upon investigation, the Commission found the Officer had disclosed to his Head of Jurisdiction that his spouse was a party to the proceeding but did not disclose that he would be appearing. The Commission was also of the view that the Officer’s conduct had the potential to give rise to apprehended bias in respect of the Officer presiding in the proceeding.

For these reasons, the Commission referred the complaint to the Head of Jurisdiction on the grounds that the Officer’s conduct infringed the standards of conduct generally expected of judicial officers and non-judicial VCAT members.

In terms of the future conduct of the Officer, the Commission recommended the Officer:

1. ensure any future conflict of interest declarations they make disclose all relevant matters
2. seek counselling from their Head of Jurisdiction concerning the conduct which gave rise to the complaint.

The Officer accepted the criticisms of his conduct and was counselled by his Head of Jurisdiction. As a result of the complaint, the Head of Jurisdiction reviewed the court processes concerning disclosure of conflicts of interest.

Case study 4

Lack of impartiality

The complainant alleged the Officer:

1. displayed open hostility towards them and contemptuous disregard for anything they said
2. was biased in favour of the other party, had made their mind up prior to the hearing and blindly accepted everything counsel for the other party said
3. the final judgment was infected with bias as it did not include the complainant’s evidence.

Decision

The Commission considered a recording and the transcript of the proceeding, together with the decision made by the Officer. The audio-visual recording of the proceeding did not disclose any evidence to support the allegations that the Officer had displayed open hostility towards or contemptuous disregard for anything the complainant said. The Commission reviewed the decision made by the Officer and it did not include the complainant’s evidence because that evidence related to an issue which was not one of the appeal grounds. Each of the allegations was dismissed on the grounds that they had not been substantiated.