Recent decisions

Case study 1

Dealing sensitively with complainants in sexual harassment matters

The Commission deals with sensitive complaints, such as those alleging sexual harassment, differently to other complaints. There is an additional focus on protecting the privacy and safety of the individual impacted by the conduct, as well as the officer who is the subject of the complaint. These complaints are handled by a specialist team of trained lawyers and documents are secured with limited access. During the investigation, pseudonyms may be applied, and there is an increased focus on regularly updating relevant parties on the investigation’s progress where appropriate.

The Commission also has a process to allow individuals to speak directly with members of the dedicated team about potential sexual harassment complaints, prior to lodging a formal complaint. This year, managers of the legal and complaints team met on two occasions with individuals about potential sexual harassment allegations. Adopting a trauma-informed approach, Commission staff explained the Commission’s process and potential outcomes, and answered questions to enable those affected to determine whether they wished to make a complaint or provide information. The emphasis was on ensuring the person did not have to tell their story or recount their experience more than required.

Case study 2

The impact of comments and tone on practitioner wellbeing

The Commission received a complaint from a legal practitioner who had appeared remotely in a hearing.

The complaint alleged, among other things, that the Officer:

rudely confronted the legal practitioner about not being physically present in court;
treated the legal practitioner appallingly; and
subjected the legal practitioner to humiliation in open court.

It was alleged that this undermined the legal practitioner in front of their client. The practitioner detailed how significantly the conduct had impacted them.

The Commission reviewed an audio recording of the hearing and determined that the Officer be given an opportunity to respond to the complaint.

The Officer chose to submit a response. In the response, the Officer acknowledged that their tone, volume and admonishing remarks during the hearing were inappropriate and injudicious. The Officer stated that they were extremely regretful of the exchange and disheartened that their remarks caused the legal practitioner to feel humiliated.

Further, the Officer acknowledged their approach on this occasion was the antithesis of their intent; to impart courtcraft skills. They also noted that it was inconsistent with their efforts to mentor junior practitioners throughout their career. The Officer expressed renewed determination to guide new practitioners in court in a gentle and polite manner.

While the exchange between the Officer and the legal practitioner was short, the Commission found that the Officer’s comments, tone and manner in the opening minutes of the hearing were confrontational and abrasive, and on one occasion, reached the level of yelling. The Officer’s tone, in combination with the comments that:

the practitioner should know better;
there was an absence of courtcraft and the practitioner’s courtcraft needed to be ‘honed’; and
the Officer was trying to do the practitioner a favour and that she should not ‘bristle’ but ‘learn’ were found to have undermined the legal practitioner and were unnecessarily critical and unwarranted.

The Commission found (among other things) that despite the rest of the hearing proceeding in a professional and courteous manner, the impact of the conduct on the legal practitioner in the initial exchange would have persisted throughout the hearing, and potentially after its conclusion.

Case study 3

The courts as a safe workplace

Similarly, the Commission considered a complaint made by a legal sector organisation concerning an Officer’s conduct over three separate proceedings.

It was alleged the Officer’s conduct demonstrated a pattern of behaviour falling short of the standards expected of judicial officers, specifically that the Officer:

repeatedly used an unnecessarily condescending, disdainful and sarcastic tone when engaging with legal representatives in routine hearings; and
unjustifiability criticised the conduct of legal practitioners appearing before the Officer.

The complainant highlighted the health and safety issue this raised for the legal practitioners appearing before the Officer.

The Commission reviewed audio recordings and gave the Officer an opportunity to respond to the complaint.

In choosing to respond, the Officer accepted:

there were issues with their tone on this occasion, as well as their abrupt and peremptory speech; and
that they caused offence and made practitioners feel demeaned by their comments.

The Officer unreservedly apologised for any offence caused and stated they would ensure the behaviour would not be repeated. Those acknowledgements were conveyed to the complainant as part of the outcome report.

In referring the matter to the head of jurisdiction, the Commission made several findings about the Officer’s conduct, with a focus on the impact of the Officer’s behaviour on legal practitioners.

Among other things, the Commission found:

the Officer’s tone towards the legal practitioners was (at different times across the three proceedings) disrespectful, impolite, condescending, sarcastic, abrupt and confrontational. This included paraphrasing or sarcastic relaying of practitioners’ submissions on a number of occasions;
the Officer’s remarks, in combination with the tone used, did not appear to serve any purpose other than to continue to criticise the legal practitioners. Together, the comments and tone were unnecessarily and unjustifiability critical and disrespectful, and could reasonably be interpreted as personally demeaning; and
a person in the position of the legal practitioners appearing before the Officer would reasonably have felt demoralised or disrespected.

The Commission recommended that the Officer be counselled by the head of jurisdiction with respect to appropriate judicial conduct, including the need to exercise sensitivity, courtesy and respect in the courtroom towards all court users, including legal representatives.

The Commission also found that the totality of the Officer’s conduct was relevant. Conversely, if the Officer’s conduct in the second proceeding had been an isolated or single instance, it may not have fallen short of the standards of conduct generally expected of judicial officers.

This example highlights the importance of the Commission being able to consider behaviour of the same or similar nature in its entirety (rather than as an isolated instance). Doing so:

impacts the Commission’s assessment of the seriousness and appropriateness of the conduct, enabling the Commission to assess the overall conduct against the standards expected of judicial officers; and
helps highlight the workplace health and safety issue, and impact on the wellbeing of a collective group.

Case study 4

Applying a Guideline to reinforce standards of conduct

The Commission received a complaint alleging an Officer had communicated with a junior solicitor, whom he was in a mentoring relationship with, in an unprofessional and inappropriate manner. It was alleged that the Officer sent inappropriate text messages, emails and other electronic communication.

Applying the Commission’s Judicial Conduct Guideline on Sexual Harassment, after a preliminary investigation under Part 3 of the Act, the Commission was satisfied the alleged conduct could be characterised as sexual harassment by the Officer and that the complaint should be referred to an investigating panel.

Case study 5

Conduct directed at the proper discharge of the judicial function

The Commission received a complaint regarding a civil proceeding. The complaint alleged, among other things, that the Officer spoke to a litigant in an inappropriate and antagonistic tone, made disparaging remarks about the litigant and demonstrated bias against the litigant.

Having reviewed the audio recording of the hearing, the Commission found that the Officer (among other things):

commented on the litigant ‘fighting dirty’ and behaving disgracefully; and
described the litigant’s claim as ‘smack[ing] of desperation’ and ‘smack[ing] of recent invention’.

The Commission noted that on one view, the Officer’s conduct towards the litigant may not reflect expected qualities of courtesy and patience. Further, the Commission considered that the Officer’s language may be perceived by a reasonable member of the community as critical, forceful and sceptical about the litigant’s bona fides and integrity.

The Officer was given the opportunity to respond to the complaint. The Officer explained that the litigant was impeding the proper and efficient discharge of VCAT’s functions and described the likely impact of the litigant’s conduct on the other parties. The Officer explained that she intended to issue a stern reprimand to prevent similar conduct going forward. The response detailed how those beliefs were formed in a considered way.

Overall, the Commission dismissed the complaint. Its report:

noted that VCAT proceedings must be conducted ‘with as little formality and technicality, and [be] determine[d]… with as much speed, as the requirements of [law] and a proper consideration of the matters before it permits’;23
remarked that the effect of frustrating the Tribunal’s processes (whether intentional or not), negatively impacts upon the other parties in a dispute, ‘other litigants [who] are left in the queue awaiting justice’, and the wider community;24 and
considered that while the member robustly rebuked the litigant, a reasonable observer would likely perceive there was a legitimate reason for her to do so. Further, the rebuke was not so serious that it offended core values of professionalism or impartiality

Case study 6

Case study - Conduct demonstrating an improper discharge of the judicial function

In contrast to the previous case study, a complaint was received from a self-represented litigant about an order made by an Officer in a building enforcement hearing. The complaint alleged that the Officer’s judgement was impaired by his anger, and as a result, he made an order based on annoyance with the litigant rather than the evidence and supporting material. In this way, it was suggested that the Officer had used his power to punish the litigant.

Making orders and decisions is part of the judicial function, and the Commission must dismiss a complaint that relates solely to the merits or lawfulness of a decision or procedural ruling.

However, having reviewed the audio recording, the Commission considered that the complaint related to the fairness and impartiality of the Officer’s conduct (specifically to his decision-making process) including his comments, tone and manner, rather than the merits of the decision.

In particular, the audio recording suggested that there was a direct correlation between the litigant’s conduct and the Officer’s shift in position and change in manner and tone, such that it impacted his ability to remain impartial. This included statements such as:

‘[O]ne more outburst like that and I will make the order that's sought. Do you understand that? This is a court. You do not speak and address the court in a manner you have. I said to you 10 minutes ago my tolerance was waning…’
‘No… I cautioned you on a number of occasions. You’ve spoken over me. You have not been of any assistance to the court… As a consequence, I am going to make the order for the injunction…’

The Officer was given the opportunity to respond to the complaint. The Officer considered that he had acted professionally in the circumstances made difficult by the litigant and that any frustration did not impact his decision.

The Commission accepted that the litigant’s behaviour created additional challenges for the Officer in conducting the proceeding and that for most of the proceeding, the Officer demonstrated patience and courtesy.

Further, it was appropriate for the Officer to take steps to ensure the litigant’s behaviour was addressed, including by changing the volume or tone of his voice and by interrupting where appropriate.

However, the Commission found the Officer’s statements, combined with the manner and tone used, demonstrated that the Officer’s decision-making would be predicated not on submissions or evidence, but on the litigant acting or behaving in a certain manner, and such conduct was inappropriate.

Overall, the Commission found that the conduct could diminish the confidence of litigants and the public in the court process, as well as the integrity and impartiality of judicial officers, thereby infringing the standards of conduct generally expected of judicial officers.

The Commission referred the matter to the head of the jurisdiction with a recommendation (among others) that the Officer be counselled on inappropriate judicial conduct, including the need to exercise patience, courtesy and respect in the courtroom towards all court users, including self-represented litigants.

Case study 7

Conduct with no legitimate purpose

Similarly, the apparent purpose of an Officer’s conduct was an important factor in a complaint concerning an application to adjourn a contested hearing. The hearing was conducted online and listed in four sessions across one day. The complaint alleged that the Officer engaged in conduct that amounted to judicial bullying, among other things.

The Commission reviewed the audio recordings of each court session and provided the Officer with an opportunity to respond to the complaint. The Officer considered his conduct justified, having regard to all the circumstances.

The Commission assessed the Officer’s actions, language, imputations arising from comments, tone, impact of the conduct and written response. It found that a reasonable observer would regard the conduct as rude, sarcastic, discourteous and bullying. Among other things:

the Officer’s comment to the legal practitioner that ‘this matter will be reported to the Attorney-General by the way...this matter’s escalating, alright’ created a risk of harm to the legal practitioner, placing them in fear of their professional reputation in circumstances where there was no reasonable basis for the comment; and
the Officer asked sarcastic, ‘tongue-in-cheek’ questions in circumstances where his position of authority and court custom required the legal practitioner to give serious answers. The answers were then mocked by the Officer in open court, which could have embarrassed or humiliated the practitioner.

The Commission did not accept that the legal practitioner acted inappropriately. Further, the Commission found the Officer’s conduct to be an unwarranted attack upon the legal practitioners’ competence and professionalism, in circumstances where the Officer had no reasonable basis for censuring the legal practitioner.

Overall, the behaviour directed at the legal practitioner was unreasonable, personal and had no legitimate purpose. The Commission was satisfied that the Officer’s conduct fell short of community expectations of how judicial officers should treat legal practitioners.