Judicial bullying impacting stakeholder 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.

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.