Home  |   High Court holds contact with Counsel amounts to apprehension of bias


High Court holds contact with Counsel amounts to apprehension of bias

Posted on Categories civil litigation, Family law 2 Comments on High Court holds contact with Counsel amounts to apprehension of bias
Legal advice


The failure by a judge of the Family Court of Western Australia to refrain from communicating with Counsel for one of the parties in a matter he was to deliver judgment in has resulted in the High Court reaffirming the principles set out in Ebner v The Official Trustee in Bankruptcy.

The Facts

The appellant (“the husband”) and the first respondent (“the wife”) had married in 1979 and separated in 2005. In 2006, the husband commenced proceedings under section 79 of the Family Law Act 1975 (Cth) (“the Act”) for orders settling the property of the parties to the marriage. The ensuing litigation, described by the trial judge as “long‑running” and “staggeringly expensive”, also involved the corporate trustee of the Family Trust, a director of the corporate trustee, the executors of the estate of the husband’s father, and the husband’s mother, known as “the Additional Parties”.

In 2011, Crisford J of the Family Court of Western Australia made property settlement orders that were later set aside by the Full Court on the basis that the husband’s mother had been denied procedural fairness.

From 3 August to 17 August 2016, a trial before Walters J occurred. The trial was then adjourned to 13 September 2016 for the parties to make oral submissions and “to be heard in relation to the making of interim or interlocutory orders pending the delivery of [final] judgment” as “[a]ll parties accepted that it would be likely to take up to 12 months for the judgment to be delivered”. Written submissions were filed by the adult children of the husband and wife, as well as the Additional Parties, on 24 August, by the husband on 31 August and by the wife on 7 September.

On 9 September 2016, the Additional Parties applied for the trial judge to recuse himself on the ground of apprehended bias, based on statements and rulings made by the judge during the trial. That application was supported by the husband but opposed by the wife and adult children. The Application was heard and dismissed by the trial judge on 13 September. An appeal by the corporate trustee and the husband’s mother against the dismissal of the Application, supported by the husband, was dismissed by the Full Court of the Family Court of Australia.

On 12 February 2018, the trial judge delivered judgment and, among other things, purported to make orders under s 79 of the Act (“the 2018 Property Orders”). Those orders did not set aside or vary the 2011 Property Orders but were inconsistent with them. Three days later, the trial judge retired. On 12 March 2018, the husband appealed to the Full Court of the Family Court of Australia against the 2018 Property Orders.

On 8 May 2018, the husband’s solicitor wrote to the barrister who had appeared for the wife before the trial judge about “gossip” that while the trial judge was seised of the Charisteas matter, the barrister and the judge had engaged outside of court in a manner inconsistent with her obligations and those of the judge. The letter requested the barrister provide written assurance that “during the time the former Judge was seised of the [Charisteas] matter, [she] had no contact with him outside of court”; and if she could not provide that assurance, she was asked to “outline the circumstances of [her] dealings with him”.

Two weeks later, the barrister responded stating that she had met with the judge for a drink or coffee on approximately four occasions between 22 March 2016 and 12 February 2018; had spoken with the judge by telephone on five occasions between January 2017 and August 2017; had exchanged “numerous” text messages with the judge between 20 June 2016 and 15 September 2017 (except for a brief hiatus during the evidence stage of the trial); and had exchanged “occasional” text messages with the judge from 15 September 2017 until 12 February 2018. The barrister concluded by stating that the “communications” with the trial judge did not concern “the substance of the … case”. The husband filed an amended notice of appeal adding grounds alleging apprehension of bias.

Relevant Law

In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, a majority of the High Court of Australia said that:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

In Johnson v Johnson (2000) 201 CLR 488, five High Court judges observed that while the fair‑minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.

In the same case, Kirby J observed that:

“It is a “fundamental rule” of natural justice and an “abiding value of our legal system” that every adjudicator must be free from bias. This same principle has been accepted in the international law of human rights, which supports the vigilant approach this Court has taken to the possibility that the “parties or the public might entertain a reasonable apprehension” that an adjudicator may not be impartial….

The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.”

In R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972, Gibbs CJ and Mason J said that:

“The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”

Full Court’s decision

On appeal to the Full Court, there were two relevant issues.

1. whether the 2018 Property Orders should be set aside on the ground of a reasonable apprehension of bias arising from the trial judge’s private communications with the wife’s barrister.

2. whether the power under s 79 of the Act was capable of being exercised by the trial judge when Crisford J had already made the 2011 Property Orders.

The Full Court reasoned that the trial judge and the wife’s barrister were aware of some of their obligations, by not communicating during the course of the trial, and the trial judge may be taken to have failed to appreciate that the same strictness applied at other times. According to the majority, the hypothetical observer would understand that the trial judge mistakenly held such a view but would not consider his lack of disclosure to be sinister.

The majority also reasoned that the second limb in Ebner was not made out by reference to what the fair-minded lay observer, properly informed as to the judiciary and the Bar, would think. The information included that barristers are professional members of an independent Bar who do not identify with the client; that judges are usually appointed from the senior ranks of the Bar; and that it may be expected they will have personal or professional associations with many counsel appearing before them. Informed by such matters, the majority reasoned, the hypothetical observer would be “able to tolerate” some degree of private communication between a judge and the legal representative of only one party, even if undisclosed. The majority considered that the hypothetical observer would accept in this case that the judge and the wife’s barrister would adhere to professional restraint in what was discussed and would accept that a professional judge who has taken an oath of office would not discuss the case at hand.

By majority (Strickland and Ryan JJ, Alstergren CJ dissenting), the Full Court dismissed the appeal. Strickland and Ryan JJ rejected the allegations of apprehended bias and dismissed the appeal against the 2018 Property Orders. Alstergren CJ would have allowed the appeal on the ground of apprehended bias and remitted the matter for rehearing. His Honour did not address s 79 of the Act.

High Court of Australia’s decision

In a unanimous decision, Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ held that:

“In this matter, what is said might have led the trial judge to decide the case other than on its legal and factual merits was identified. It comprised the various communications between the trial judge and the wife’s barrister “otherwise than in the presence of or with the previous knowledge and consent of” the other parties to the litigation. Indeed, given the timing and frequency of the communications between the trial judge and the wife’s barrister, it cannot be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, and it was not. The communications should not have taken place. There were no exceptional circumstances.

“A fair‑minded lay observer, understanding that ordinary and most basic of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. The trial judge’s impartiality might have been compromised by something said in the course of the communications with the wife’s barrister, or by some aspect of the personal relationship exemplified by the communications. Accordingly, there is a logical and direct connection between the communications and the feared departure from the trial judge deciding the case on its merits.”

The High Court held that the Full Court’s reasoning was erroneous as the apprehension of bias principle is so important to perceptions of independence and impartiality “that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined”. The trial judge’s failure to desist from communications while his judgment remained pending was contrary to the passage from Magistrates’ Court at Lilydale above, as well as a leading textbook of judicial ethics. That would undermine the appearance of impartiality and no question as to the understanding or motivation of the judge arose.


“the alignment of the fair-minded lay observer with the judiciary and the legal profession is inconsistent with the apprehension of bias principle and its operation and purpose. The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system”.

The appeal was allowed, with the first respondent wife to pay the costs of the appeal.


This case highlights the importance of judicial officers maintaining the appearance of impartiality at all times during a case that the judicial officer is seized of. Whilst it is unrealistic to expect that Judges do not know any lawyers socially, this case means that such social interactions must be avoided with any of the lawyers for the parties in a matter that is before a Judge, unless the other parties consent. Such communications otherwise invite suspicion from a disappointed party or a member of the public that a judicial officer might have been in some way influenced by them.

Only two weeks ago, we bumped into a Magistrate at Richlands at a bakery mid-trial. We exchanged very brief greetings and noted that we were not able recognise his Honour initially because of his face mask. The Magistrate made a favourable comment about the pies being sold at the bakery and we left it at that. In this case, our very brief exchange was fleeting and not entirely voluntary given we had bumped into each other. But in any event, the Magistrate decided against our client by convicting him of all four counts of fraud. There could be no suggestion of apprehension of bias in that case.

The apprehension of bias principle primarily exists in order to promote confidence in judicial proceedings. The Full Court erred by approaching the question of apprehension of bias from the presumed motives and understanding of the primary judge, and from viewpoint of a lawyer, or someone familiar or aligned with the legal profession, rather than as a fair-minded lay observer. That was not the test laid out by the High Court in Ebner. In circumstances where parties in the case had previously applied for the trial judge to recuse himself on the ground of apprehended bias, the communications with Counsel and the failure to disclose them was, as the High Court noted, ‘particularly troubling”.

Sterling Law gets costs order against solicitor

Posted on Categories Family law, litigation Tags , , , , , , 2 Comments on Sterling Law gets costs order against solicitor

This week, Sterling Law obtained a costs order on the indemnity basis against a solicitor in the Federal Circuit and Family Court of Australia.

The Facts

Sterling Law acted for the father in a parenting matter. The mother had prior to proceedings relocated from Katoomba NSW to Queensland without notice to our client. Our client the father sought a relocation order so that the child could have a meaningful relationship with both parents.

After the Federal Circuit Court trial, judgment was reserved. The mother then sought to re-open the evidence by filing an Application in a Case instead of complying with the Court’s Orders for the filing of written submissions. Solicitor for the mother said that the Application in a Case was filed on Senior Counsel’s advice.

The Application in a Case was dismissed at the first return date on 16 July 2021. The solicitor for the mother appeared without Counsel and sought an adjournment so that Senior Counsel could argue the Application. Sterling Law also appeared without Counsel and pointed out the ‘new’ evidence was not germane to the child’s best interests, nor was it likely to change the result. Furthermore, the mother was not a credible witness, and this had been demonstrated when she was extensively cross-examined at trial, so a hearing with further cross-examination would be required if the evidence was reopened. The ICL noted the ‘new’ evidence could have been adduced at the trial.

Judge Tonkin dismissed the Application in a Case later that day. Sterling Law then sought indemnity costs on behalf of the father against the mother, her solicitor and Counsel. We submitted that the Application in a Case was bound to fail, had caused undue delay and expense and had been filed for the ulterior purpose of delaying judgment so that the mother could remain in Queensland for longer. Furthermore, an offer of compromise was imprudently not accepted. None of those submissions were challenged on behalf of the mother or her lawyers.

Continue reading “Sterling Law gets costs order against solicitor”

The perils of social media for twits

Posted on Categories Defamation Tags , , , 2 Comments on The perils of social media for twits

The laws of defamation apply to social media as much as they apply anywhere else:

A FORMER high school student has been ordered to pay $105,000 to a teacher for writing defamatory remarks about her on social media in what is believed to be Australia’s first Twitter defamation case to go to trial.

Former Orange High School student Andrew Farley, 20, made “false allegations” about music teacher Christine Mickle on Twitter and Facebook in 2012, a year after he had left school.

Mr Farley, who had never been taught by Ms Mickle, seemed to bear a grudge against the 58-year-old based on a belief that she had something to do with his father, also a teacher, leaving the school, District Court Judge Michael Elkaim said in his ruling.

“There is absolutely no evidence to substantiate that belief,” Judge Elkaim said. “The effect of the publication on the plaintiff was devastating.’’

Anyone who frequents Twitter (or other social media) on a regular basis would know that false and defamatory assertions are often made about people. In some ways it’s a surprise that it’s taken this long for such a case to result in an award of damages in Australia.

Another twitter defamation case that went to court is that of Liberal pollsters Mark Textor and Lyndon Crosby against former Labor MP Mike Kelly for a tweet Kelly published about push polling.

When people go on social media to rant, they would be well advised to be careful that they do not open themselves to liability for defamation. A right to rant is not the same as a right to defame.

High Court upholds freedom to contract casually

Posted on Categories Industrial relations Tags , , , , , , , 2 Comments on High Court upholds freedom to contract casually

The Facts

Robert Rossato was employed by WorkPac, a labour-hire company pursuant to a series of six contracts, or “assignments” between 28 July 2014 and 9 April 2018, when he retired. During that time, WorkPac provided his services to Glencore at one or other of the Collinsville and Newlands mines. Each contract was entitled “Notice of Offer of Casual Employment – Flat Rate” except for the third contract, which was entitled “Notice of Offer of Casual Employment”. At all relevant times, WorkPac treated Mr Rossato as a casual employee.

Most of the time, Rossato worked according to either a “7/7 roster” (seven days on, seven days off) or a “5/5/4 roster” (five days on, five days off, four days on, five days off, five days on, four days off). The only exceptions to these arrangements were when he undertook additional training or inductions, and during mine shutdowns. Rossato was never asked by WorkPac or Glencore whether he intended to attend work on a day he was rostered; nor did Rossato ever enquire whether he would be required to attend work on a day he was rostered.

On 2 October 2018, in reliance on the decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131, Rossato wrote to WorkPac claiming that he had not worked for it as a casual employee, and claiming that he was entitled to be paid for untaken annual leave, public holidays, and periods of personal leave and compassionate leave taken by him during his employment. These entitlements were said to be due under the Fair Work Act 2009 and the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012, which governed Rossato’s employment.
Continue reading “High Court upholds freedom to contract casually”

Time to sue: The law of limitation periods

Posted on Categories civil litigation, Defamation, litigation, Negligence, Personal Injury Tags , , , , , , , , , , 2 Comments on Time to sue: The law of limitation periods

Are there time limits on when you can sue? Read about what limitation periods are, and how they work.


Limitation periods in the law impose time limits within which types of civil proceedings should ordinarily be commenced. In commercial litigation, statutes of limitations impose most of the limitation periods. In Queensland, the statute of limitations is the Limitation of Actions Act 1974.

There are other time limits imposed under the law, but this article concerns time limits imposed under statutes of limitations, particularly the Limitation of Actions Act 1974 (Qld).
Continue reading “Time to sue: The law of limitation periods”

Types of appeals in Queensland and the Federal Courts

Posted on Categories civil litigation, Criminal law, litigation Tags , , , , , , , , , , , , , , 1 Comment on Types of appeals in Queensland and the Federal Courts

Legal advice

Appeals in the law are creatures of statute: Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704 at 720-721, Mickelberg v The Queen [1989] HCA 35, Deane J at [4], R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at [20]. In other words, they never existed at common law, but were instead created by legislation. Therefore, appeals can only be made and determined in accordance with statutory provisions and Court rules about appeals, and primary regard must be had to them. The “common law” of appeals is the case law of interpretation of such provisions.

The joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 distinguished between four types of appeals:

“[20] Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word “rehearing”. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term “appeal”, or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.”

It is important for practitioners to understand the different types of appeals in order to be able to know the nature of each type, and therefore how they will be considered and determined. Such knowledge is a prerequisite for practitioners to appraise themselves of the prospects of success in such appeals they may act in.

Continue reading “Types of appeals in Queensland and the Federal Courts”

How you can save on legal fees

Posted on Categories Criminal law 2 Comments on How you can save on legal fees

This post discussed why legal fees tend to be so high. The good news is that as a client there are a number of ways you can reduce your legal fees, as the rest of this article will show.
Continue reading “How you can save on legal fees”

Sue Chrysanthou SC restrained from representing Christian Porter

Posted on Categories Defamation Tags , , , 3 Comments on Sue Chrysanthou SC restrained from representing Christian Porter

Defamation specialist Sue Chrysanthou SC has been restrained by a Federal Court judge from representing former Attorney General Christian Porter in his defamation suit against the Australian Broadcasting Corporation (ABC) and its star reporter Louise Milligan.

This is a blow for Porter, who had engaged Sue Chrysanthou SC after the ABC aired allegations that he had raped a member of his debating team in the 1980s.
Continue reading “Sue Chrysanthou SC restrained from representing Christian Porter”

© Sterling Law QLD . All Rights Reserved. Copyright 2017-2021 Sterling Law (Qld) Pty Ltd ACN 165 643 881