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 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.
In Ebner v The Official Trustee in Bankruptcy  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”.