Providing informed guidance on professional standards and processes

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

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.

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.

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.

The tone and nature of the conduct was an important factor in a complaint alleging that during a mention, an Officer was rude and yelled at the applicant when she had not finished answering certain questions. The Commission reviewed an audio recording of the mention (among other things) and determined to give the Officer an opportunity to respond to part of the complaint. The Commission found, relevantly:

• the parties were self-represented and the applicant appeared to have a limited understanding of court processes; 
• the applicant often spoke over the Officer, but at times, asked (or waited) for permission to speak; and 
• on two occasions approximately eight minutes apart, the Officer’s tone, volume and language escalated.

Generally, the Commission did not consider the Officer’s behaviour rude. Rather, a reasonable observer would perceive that the Officer was speaking loudly and emphatically to be heard in, and maintain control of, a virtual courtroom. The Commission acknowledged significant caseload pressures on the court at the time.

However, the two occasions identified above were assessed as having gone beyond what was necessary to maintain effective courtroom management. The Commission distinguished what may be (a) displays of frustration or annoyance; from (b) yelling at and acting rudely towards a self-represented litigant. Although both occasions were momentary, the Commission found that their nature was such that the Officer infringed the standards of conduct generally expected of a judicial officer.

The Commission received a complaint that primarily alleged that a tribunal member permitted an expert witness report to be filed out of time, and then read this report before the hearing and indicated that they would be influenced by the report. This was alleged to demonstrate bias.

In this case, the Commission considered the type of proceeding and jurisdiction in which it occurred, which was an application in the planning and environment list of VCAT.

The Commission considered the conduct in the context of the nature and jurisdiction of the proceeding. The expectations around submitting and receiving evidence in VCAT, are purposefully less formal than in the courts, to promote (among other things) VCAT accessibility.

In this context, the conduct was not inappropriate. The tribunal member had acted in accordance with section 98(1)(c) of the Victorian Civil and Administrative Act and the supplementary Practice Notes, both of which permitted discretion around the acceptance of evidence, despite noncompliance with time limits or procedure.

Similarly, a separate complaint alleged that the complainant felt ‘mentally overpowered’ by the tribunal member sitting at the bar table with the parties during the VCAT proceeding, rather than at the bench. The complainant was self-represented.

Again, the Commission found that the tribunal member did not infringe the standards of conduct generally expected because, generally, VCAT procedures are intended to have a more flexible and informal approach than that which might be expected in a court setting. This is to accommodate the fact that, in many cases, parties will not be represented by a legal practitioner. Tribunal members are usually required to conduct the proceedings with as little formality and technicality as possible to allow each proceeding to be determined effectively.

Accordingly, the Commission considered that in the context of the VCAT jurisdiction, it was not inappropriate for the member to sit at the bar table with the parties rather than the bench.

The Commission considered a complaint alleging, among other things, that an officer coerced and threatened the parties into attending mediation. The matter involved a directions hearing for a personal safety intervention order application, where both parties were self-represented.

A review of the audio recording revealed that on several occasions, the Officer explained to the parties that although mediation is not a requirement, it is encouraged by law pursuant to the Personal Safety Intervention Orders Act 2010 (Vic). The Officer explained that without legal representation, they had to explain that legislation permits a judicial officer to consider a party’s refusal to attend mediation and that it may go against their credibility at the contested hearing.

The Commission did not identify any evidence to support the allegations that the Officer coerced or threatened the parties into attending mediation. Further, the Commission considered that as part of the Officer’s case management role, there was nothing inappropriate or improper about encouraging mediation to resolve the proceeding early. In fact, this type of proceeding required it.

_²³ Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(d). 

_²⁴ UBS AG v Tyne [2018] HCA 45, 265 CLR 77 at [38], [45].