High Court firm on private judge-counsel communication

In Charisteas v Charisteas [2021] HCA 29, the High Court unanimously set aside orders of the Family Court of Western Australia on the basis of apprehended bias.

Background

The appeal to the High Court was the culmination of a long history of litigation between the appellant (the husband) and the first respondent (the wife). The matter concerned proceedings under s79 of the Family Law Act 1975 (Cth) (the Act) for property settlement orders.

Property orders were originally made by the Family Court of Western Australia under s79 of the Act in 2011. However, in 2013, the Full Court of the Family Court of Australia set aside aspects of those orders but did not make any consequential orders remitting the issue for rehearing or otherwise.1

Subsequently, the matter was heard by the Family Court of Western Australia. In February 2018, following a trial that commenced in August 2016, the trial judge made orders under s79 of the Act. Those orders were inconsistent with the earlier orders made in 2011.

In May 2018, the wife’s barrister disclosed that, between March 2016 and February 2018, she had communicated with the trial judge in person, by telephone and by text, although communications were suspended briefly in August 2016 while evidence was led. The barrister asserted that they had not discussed the substance of the case.2 The communications took place without the presence or prior knowledge and consent of the other parties to the litigation.

Issues

The husband appealed the 2018 decision to the Full Court of the Family Court of Australia on two grounds:

  • apprehended bias arising from the communication between the trial judge and the wife’s barrister, and
  • the Family Court of Western Australia did not have the power to make the orders under s79 of the Act.

The Full Court dismissed the appeal, and the husband appealed to the High Court of Australia on the same grounds.3

Issues considered

Apprehended bias

The High Court reiterated the principle of apprehended bias 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”.4

In reaching its decision, the Full Court considered what a fair-minded lay observer, properly informed as to the judiciary and the Bar, would think. The court took into account factors such as that barristers were independent professionals who do not identify with the client, and that, as judges are usually appointed from the senior ranks of the Bar, it may be expected that they will have personal and professional associations with counsel.

The Full Court reasoned that the hypothetical observer would tolerate some degree of private communication, accepting that the barrister and judge would exercise professional restraint in their discussions.5

The High Court criticised this reasoning, holding that the hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts and “[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self-appreciation of this kind”.6

The High Court noted that private communication between a judge and counsel for one of the parties, without the knowledge and consent of the other parties, was a clear departure from the norms of judicial and professional conduct. In this case, there were no exceptional circumstances to justify a departure from those standards.

Accordingly, a fair-minded lay observer, understanding ordinary judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions the trial judge was required to decide.7

Power to make orders under section 79 of the Family Law Act 1975 (Cth)

The High Court considered that the power to deal with the property subject to the orders that were set aside had not been spent. Consequently, the Family Court of Western Australia retained the power under s79 to make orders that applied to that property.8

The High Court allowed the husband’s appeal and ordered:

  • the matter be remitted for rehearing before a single judge of the Family Court of Western Australia, and
  • the Family Court retained power under s79 of the Act to deal with the relevant property.

Irene Gallagher is a Law Graduate Intern at Queensland Law Society Ethics and Practice Centre. This article has been approved by Grace van Baarle, Solicitor and Manager, QLS Ethics and Practice Centre.

Footnotes
1 Charisteas v Charisteas [2021] HCA 29, [3].
2 Ibid [8].
3 Ibid [9]-[10].
4 Ibid [11], applying Ebner (2000) 205 CLR 337, 344.
5 Charisteas v Charisteas [2021] HCA 29, [20].
6 Ibid [21].
7 Ibid [15].
8 Ibid [27].

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