The High Court of Australia has found that social communications between a judge and a lawyer for a litigant in a matter that the judge was hearing raised a reasonable apprehension of bias. The family law matter commenced in 2006 and is still going.
One consequence is that the Australian Law Reform Commission is now required to issue its report on judicial impartiality within 2 months: see Judicial impartiality report awaits the High Court decision in Charisteas – more dancing on pinheads | Murrays Legal
Apprehension of bias principle
The High Court confirmed the ‘well established’ principles, that the apprehension of bias principle is that “a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
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”. That generally entails, save in the most exceptional cases, that 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.
In the case in hand,
‘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 the Judge was required to decide.
“The lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications, particularly when he was dealing with the application to recuse himself on other grounds. It may give the hypothetical observer reason to doubt the correctness of the claim by the wife’s barrister that their communications did not concern “the substance” of the case, if the ambiguity inherent in that statement is not itself of sufficient concern”.
Tortured history
This matter has been before the family courts since 2006. The High Court referred to “a litany of applications, hearings, orders and appeals … [involving an] unfortunately long and tortured history”. The High Court allowed the husband’s appeal, with the wife to pay costs, orders of 2015 and 2018 were set aside, and the husband’s original application for property orders arising from orders made in 2011 were remitted to the Family Court of Western Australia for rehearing.
Federal Circuit and Family Court of Australia
The Family Court itself no longer exists. It is now part of the Federal Circuit and Family Court of Australia, since 1 September 2021. Charisteas v Charisteas [2021] HCA 29 (6 October 2021) (austlii.edu.au)
