A judge hearing a discrimination case brought by a mother against a bank has stepped aside after being inadvertently recorded making remarks about the matter, described as “inappropriate” by the woman’s lawyer.
Judge Pamela Jenkins was sitting in the Victorian and Civil Administrative Tribunal (VCAT) remotely earlier this year when she made the remarks to another judge who was observing the case.
The hearing had concluded but the pair of judges continued discussing the case in the same online meeting after the other parties left.
The comments were discovered after a recording of the hearing was sent by the tribunal to the plaintiff.
Jenkins’ comments came to light on Tuesday during a separate directions hearing regarding the case in VCAT.
Jenkins is a county court judge who sits in the tribunal as a sessional senior member. She agreed to stand aside in May after the plaintiff uncovered the remarks a month earlier and flagged a recusal application.
Judge Caitlin English, the vice president of the tribunal, is now hearing the case, which started in 2014 when then-ANZ employee Katherine Bashour said the bank had discriminated against her because of her pregnancy.
Michael Harmer, for Bashour, told the tribunal on Tuesday that a trial listed to start in November should be moved until next August on procedural and substantive fairness grounds.
He said that Jenkins’ comments had worsened a psychiatric injury suffered by Bashour, and that the subsequent decision of the judge to step down had delayed the previous timetable set aside for the case to progress.
“Unfortunately, there was quite an extraordinary turn of events,” Harmer said of Jenkins comments.
“[The recording revealed Jenkins] expressing some views in a rather candid manner about the case that the applicant and her representatives considered to be inappropriate.”
Rachel Doyle SC, for ANZ, said the application for the dates to be vacated and the trial to be moved was opposed by the bank.
She said Harmer had an opportunity to progress the case between Jenkins’ decision to step aside and the matter returning to the tribunal on Tuesday but had not done so.
Doyle also said the bank wished to challenge the evidence provided by two medical professionals in relation to Bashour’s health, which were relied upon as part of the application.
She said there were “tensions, difficulties and ambiguities” in the medical reports, and that they should be given “little - approaching no - weight” because they had not been able to be tested, as the medical professionals were not available for cross-examination.
Doyle said it was “not reasonable, necessary or credible” to delay the trial until August, saying that if it was to be delayed it should start no later than mid-April given the impact ongoing delays were also having on witnesses.
“In terms of human costs, there are more people than just the applicant affected by this matter lingering for a number of years,” she said.
English agreed to vacate the November trial date, but said the matter should be heard in February, rather than in August as proposed by Harmer.
She said that a timetable for pre-trial matters had not been finalised on 5 May, when Jenkins stepped aside, and so vacating the trial date was necessary “due to what can only be described as unusual and unforeseen circumstances that were no fault of either party”.
Despite submissions made by the bank that the trial should continue, given this was the fifth time a date had been set for it to proceed, she said refusing to delay the matter “would be a denial of procedural fairness” to Bashour.
“I note there are a number of outstanding issues to still be decided…[and] I am prepared in the circumstances to vacate the trial date.”
