The Judicial Bullying Guideline at work

We received a complaint from a legal practitioner about an Officer alleging that the Officer:

• refused to pronounce the legal practitioner’s name correctly and made a sarcastic comment about his pronunciation; and
• made personal attacks about the legal practitioner’s look and appearance, which indicated a bias or apprehended bias.

The legal practitioner alleged that, overall, the Officer’s conduct amounted to judicial bullying.

We listened to the audio recording of the hearing and applied the Judicial Conduct Guideline on Judicial Bullying.

The Guideline defines judicial bullying as conduct that is:

• unreasonable; and
• includes, but is not limited to, conduct that a reasonable person would, having regard to all the circumstances, perceive as belittling, humiliating, insulting, victimising, aggressive or intimidating.

We did not identify any conduct on the part of the Officer that would constitute judicial bullying under the Guideline.

In respect of the Officer’s pronunciation of the legal practitioner’s surname, early in the hearing, the legal practitioner corrected the Officer’s pronunciation, and the Officer responded by saying ‘thank you’ and commenting that the legal practitioner’s pronunciation was better than the Officer’s.

We found that the Officer’s tone when responding was not sarcastic but polite and courteous. Further, there was no evidence that the Officer deliberately continued to mispronounce the legal practitioner’s surname.

We also identified two comments made by the Officer (relating to the legal practitioner’s apparent facial expression and body language) that could be construed as personal in nature. In particular, the Officer commented that the legal practitioner should not look so ‘smug’.

However, having regard to judicial ethics and balancing the factors (as set out in the Guideline) for assessing the appropriateness of conduct and determining when it is unreasonable, we found:

• The Officer’s comments did not reach a level, either in tone or content, that a reasonable person would, having regard to all the circumstances, perceive as belittling, humiliating, insulting, victimising, aggressive or intimidating.
• The Officer’s comments must be considered within the context of the proceeding as a whole. The comments were momentary, and the Officer was, overall, courteous and polite during the proceeding and actively listened and asked questions of the Complainant during submissions.
• Although the use of the word ‘smug’ could have been avoided, core judicial values are not offended by ‘[o]ccasional displays of impatience and irritation, whether justified or not’.⁴¹ A single, unseemly remark by a judicial officer is unlikely to infringe the standards of conduct generally expected of judicial officers.

The complaint was dismissed.
 

⁴¹ VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, 131 FCR 102 at [81] (Kenny J), quoted with approval in SZRUI v Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [31] (Flick J), [90]-[91] (Robertson J).