Property – apprehended bias – private contact between barrister and judge

In Charisteas [2021] HCA 29 (6 October 2021), the High Court of Australia (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) considered a recusal application on the ground of apprehended bias.

The High Court said (from [14]):

“ … [W]hat 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 (see also Magistrates’ Court at Lilydale [1973] VR 122 at 127). … The communications should not have taken place. …

[15] A fair‑minded lay observer … 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. …

(…)

[18] … 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’ (see Ebner [2000] HCA 63). …

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[19] 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 …

(…)

[21] … The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. …

[22] It may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections. … [T]heir contact may be resumed … by a judge making orders and publishing reasons, thereby bringing the litigation to an end. …”

The appeal was allowed and the matter remitted for rehearing with costs.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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