Hendry v State of Western Australia

The case of Hendry v State of Western Australia (No 3)¹ provides an interesting addition to the evolving conversation around the significance of social media in the digital age and, relevantly, its place in the courtroom.  

The Federal Court ultimately dismissed an application by Ms Hendry, a self-represented litigant, that sought the recusal of Jackson J on the grounds of apprehended bias. Although the matter was dismissed, the matter was reallocated due to the manner in which the applicant pursued her submission, which in part centred around a tragedy in the judge’s family.  

Alleging apprehended bias on the part of Jackson J, the applicant initially drew attention toward what she argued was a ‘close personal connection’ with counsel for the respondent in the case.² She reasoned that this arose from past personal interactions between the judge and barrister as well as their status as Facebook friends.  

The applicant further submitted that Jackson J had a ‘direct financial interest’ in the case due to the barrister’s $500 donation to an online fundraiser raising money for his brother-in-law, who had suffered a ‘grievous medical emergency’ rendering him unable to work.³

Dismissing the applicant’s claim, Jackson J first examined his personal relationship with the barrister, which he described as ‘unremarkable’.⁴ Using the test set out in Ebner v Official Trustee in Bankruptcy,⁵ the judge deduced that a fair-minded lay observer would not ‘reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.⁶

Arriving at this conclusion necessitated an evaluation of the significance of social media ‘friendship’ among judges and judicial officers more generally, relevant for practitioners in the digital age.  

Jackson J first established that a Facebook friendship does not, in itself, give rise to a close personal relationship sufficient to amount to apprehended bias. He reasoned that Facebook friendships can encompass relationships ‘as diverse as family, close friends, distant acquaintances or even strangers’⁷, meaning that the applicant’s ‘bare identification of an association’ was unlikely to constitute a relationship significant enough to warrant disclosure, let alone apprehend bias.⁸ Unless a relationship is substantial or ongoing, no such ‘[b]lanket rules about disclosure’ apply.⁹

In the absence of superior court authority, Jackson J concluded that, while it would be impracticable and antiquated to prohibit the use of social media amongst officers of the court, they should nonetheless ensure their use of public digital platforms is ‘thoughtful’ and does not impede the impartial administration of justice.¹⁰

Some social media friendships could very well give rise to suspicions of bias, for example, between a judge and a legal professional who very frequently appears before the court.  

Jackson J grounded his judgment in the very nature of the legal profession, where the admission process itself requires an existing professional connection to move a candidate’s admission to the roll.¹¹

It is natural that judges and barristers, like any other profession, often form ‘friendships, professional bonds and even financial connections’.¹²

Having concluded that the Facebook friendship between himself and the barrister did not indicate a ‘nefarious or corrupt motivation’, Jackson J turned to the unfortunate way in which the applicant raised this argument.¹³

In order to trace what she perceived as a relationship between the judge and barrister, the applicant had ‘combed through the social media presence of not only [Justice Jackson], but [his] wife’.¹⁴

In doing so, she had raised the argument that the barrister’s contribution to the relevant fundraiser would financially benefit the judge himself, alleviating him of the burden of providing support to his own family.¹⁵ Jackson J dismissed this ‘outlandish’ claim as ‘pure speculation, untethered to reality’, acknowledging the family tragedy at hand.   

In this case, it was ultimately not the incidental social media friendship but the way in which the applicant pursued her application by targeting a significant tragedy regarding the judge’s family that gave rise to ‘a logical connection between her conduct in this proceeding, and a reasonable apprehension that I might not decide the case on the merits.’¹⁶

As his Honour noted, ‘for all their training, judges are human beings, and not mere reasoning machines’¹⁷ and referred the proceeding to the Registrar for reallocation.  

1. [2025] FCA 1262 (‘Hendry’) ↩︎
2. Ibid [24]  ↩︎
3. Ibid [24], [7] ↩︎
4. Ibid [99] ↩︎
5. [2000] HCA 63 ↩︎
6. Ibid [6] ↩︎
7. Hendry [57] ↩︎
8. Ibid [60] ↩︎
9. Ibid [57] ↩︎
10. Ibid [44], citing Federal Court of Australia, ’Guidelines about using electronic social media’ (2013) Guide to Judicial Conduct ↩︎
11. Hendry [63], citing Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215, 222 (Merkel J) ↩︎
12. Hendry [61] ↩︎
13. Ibid [99] ↩︎
14. Ibid [101] ↩︎
15. Ibid [24] ↩︎
16. Ibid [104] ↩︎
17. Ibid ↩︎