Apprehended Bias – should Judges & lawyers have drinks pre-judgement?

Can the existing laws and practice do more to manage and address claims of apprehended bias against judicial officers?

Should Judges and barristers be permitted to have coffee and drinks during court proceedings or while judgement in a matter they are both involved in, remain pending?

This is exactly what happened in the case of Charisteas, and the appeal to the High Court on this  matter remains pending as does a Judicial Impartiality Inquiry which was launched shortly after the rejection of the Husband’s appeal to the full court in relation to an application for recusal on the basis of apprehended bias.

Charisteas & Charisteas – Apprehended Bias of Trial Judge

The Husband in Charisteas made an application for apprehended bias having regard to the conduct of the trial judge and counsel for the wife while the judge was seized of conduct of the matter between 2016 and 2018. His appeals thus far have been unsuccessful but he has been granted leave to appeal to the High Court and the High Court appeal is pending.

The Facts

The proceedings commenced in 2006.

Three separate trials occurred. The first in 2008. Orders made in that trial were set aside and a retrial ordered. A further trial took place in 2011. Orders made at that trial were set aside and a retrial ordered.

The case was docketed to the trial judge for a third trial in August 2016. The third trial continued from 3 August to 17 August with final judgement being delivered on 13 September 2016 in favour of Ms Charisteas.

On 9 September 2016, two of the respondents, XYZ Pty Ltd and the Husband’s mother, Mrs Charisteas senior, filed an application for the primary judge to recuse himself on the basis of an apprehension of bias. The Application was founded on the basis of complaints about the conduct of the primary judge during the course of the third trial.

Final submissions and the application for recusal were heard and the recusal application dismissed on 13 September 2016 by the primary judge.

The dismissal application was unsuccessfully appealed to the full court of the family court, on 30 June 2017, with the primary judge handing down judgement on 12 February 2018.

Counsel for the wife appeared at the hearing of the third trial including the hearing of the recusal application.

It was not until later that year in May 2018 that the Husband was informed that the primary judge and counsel for the wife (Ms A) had been in contact in person, by phone and by text message, on many occasions between March 2016 and February 2018.

None of the contact had been disclosed by the primary judge or counsel for the wife to the parties either at trial, at the application for recusal or prior to handing down of judgement on 12 February 2018.

The conduct came to light as a result of the Husband instructing his solicitor to write to the Wife’s solicitor on 8 May 2018 raising concerns about His Honour’s conduct during the trial, in the context of gossip in the family law community about contact between counsel for the Wife (Ms A) and the primary judge, taking place outside court.

In response, on 22 May 2018, Ms A wrote a reply to the Husband’s solicitor confirming that:

• She had known His Honour (the former Judge) for many years both personally and professionally;
• She is not and has never been in an intimate relationship with the Barrister;
• Acknowledgement of contact with the Barrister from March 2016 as follows;
  1. Personal contact for a drink or coffee on approximately four occasions, between 22 March 2016 and 12 February 2018
  2. Telephone contact on five occasions between January 2017 and August 2017;
  3. Exchange of text messages from June 2016 to February 2018;
  4. 20 June 2016 to 15 September 2017 – numerous;
  5. no communication 2 August 2016 to 19 August 2016;
  6. 15 September 2017 to 12 February 2018 – occasional.

Ms A stated that the communications did not concern the substance of the Charisteas case.

The Father’s alleges apprehended bias of the Trial Judge and the failure of the Judge of the Family Court of Western Australia to declare a relationship with the Barrister, who represented Mrs Charisteas and his failure to declare any contact with Ms A between March 2016, when the Charisteas case was listed before His Honour, and February 2018, when His Honour ruled in favour of Mrs Charisteas.

This is despite the two meetings for drinks/coffee on four occasions, exchanging text messages and having telephone contact at least five times.

Notably disclosures were only made by the Barrister after Mr Charisteas’ lawyers alerted her to the gossip that was about in the Perth legal community (The judge also retired three days after he handed down his decision.)

The Test for apprehended bias

The test for apprehended bias, which would be such as to disqualify a judge,  is:

whether 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: Ebner & Official Trustee of Bankruptcy [2000] HCA 63 (the ‘double might’ test).

If an allegation of apprehended bias is made out it goes to the heart of the decision of the trial judge. It is irrelevant whether the findings made by the trial judge were correct.

Ethical obligations of legal practitioners when communicating with the Court

Under Rule 22.5 to 22.8 of the Australian Solicitor Conduct Rules 2012 (ASCR):

1. A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:
   1. the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
   2. the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
2. A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to above.
3. A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under the Rules other than the matters specifically notified by the solicitor to the opponent when seeking the opponent’s consent.
4. A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly.

Similar rules apply for barristers acting for a party under Rule 53 to 55 of the Bar Association of Queensland Barristers Conduct Rules 2018.

Family Court Appeal

On appeal to the Full Court of the Family Court, Family Court Chief Justice Wil Alstergren was at odds with his two colleagues Justice Steven Strickland and Judy Ryan as to whether a judge and a barrister who met for drinks and coffee and exchanged “numerous” text messages while a case was under way was grounds for ordering a retrial of a protracted family law dispute.

Justices Strickland and Ryan who formed the majority in the case threw out the appeal.

The majority judges found the extensive contact between Family Court of Western Australia Judge and Perth-based Barrister would not cause a reasonable person to fear the judge might have been biased in his handling of the case.

Justices Strickland and Ryan said a “hypothetical observer” would have accepted the Barristers assertion that the pair did not discuss the substance of the case, and would have been aware of their ethical obligations and that this would have alleviated any concerns the case would not be dealt with impartially.

Family Court Chief Justice Will Alstergren, who was the dissenting judge, said the contact between the pair should never have occurred — it was “protracted, premeditated and contrary to the ethical obligations each individual owed to the court” — and meant the judge’s decision should be set aside.

Interestingly the Chief Justice made the following comments generally about communications between practitioners and the bench outside the court room:

1. Private communications – there should be no communications between a judge and one of the parties or legal advisers other than in the presence of or with the prior consent of the other party once the case is underway.
2. Social contact with the profession – despite the long standing tradition of association between the bar and the bench, private communications outside court are capable of raising suspicion or scrutiny and as such during litigation save in very exceptional circumstances, there should be no communication or association between the judge and a party (or the party’s legal advisers) other than in the presence of or with the prior consent of the other party: Dobey & Dobey [2019];
3. Communication with the court – A practitioner must not communicate with the court in the absence of opposing counsel on a matter of substance unless the practitioner has opposing counsel’s prior consent to the specific communication or the practitioner is properly making an ex parte application on behalf of the client. In respect of any such communication with the court in the absence of a party, the practitioner must promptly tell the opponent of any such communication and provide a copy of all written communications with the court without delay.

His Honour made the following comments in respect of the communication that occurred between counsel and the Judge in this case:

• anything other than accidental or fleeting private contact between a legal practitioner and a judge when a judge is seized of conduct of a matter in which that practitioner is appearing has the propensity to create apprehension in the mind of a fair minded observer as to the impartiality of the presiding judge. This is because the legal practitioner has the opportunity to make ex parte representations to the judge about the case.
• It is incumbent upon judicial officers and in this case counsel to disclose any contact/conduct which might raise a reasonable concern of apprehended bias (Ebner)
• No timely disclosure of the communication occurred in this case. The meetings between counsel and the judge only came to light in May 2018 after questions were raised by the husband’s lawyers to counsel for the wife almost 2 years after they have been said to have commenced (and therefore no issue of waiver arises).
• Even when the meetings did come to light, the disclosures about the meetings were hardly candid as there was no particularisation of dates or details of the contact that occurred and there could have been more than 4 meetings, it is not clear whether the meetings took place during or after the trial, whilst there is a denial of personal contact in August 2016 there is no denial of face to face contact, there is no suggestion the meetings were for a professional reason and it can be inferred they were for a personal/social purpose, there is no clarity as to what was in the numerous text messages sent and there is no explanation as to the difference between ‘numerous contact’ and ‘occasional contact’.
• His Honour noted it was striking that counsel for the Wife did not seek to explain the content or substance of the communication and instead limited disclosure to the assertion that ‘the communications did not concern the substance of the Charisteas case’. Such assertion begs more questions than it answers, according to the Chief Judge.
• The Husband pressed for further and better particulars of the content of the communications between  counsel and the Judge with little success.

Chief Justice Alstergren held:

• The simple and obvious fact of the matter in this case is that the disclosed communications should never have occurred, and once they had occurred (on and after 3 August 2016), counsel and the primary judge should have made appropriate disclosures, which they did not.
• Such failure to disclose, of itself, can, and His Honour held in this case, does give rise to a reasonable apprehension of bias.
• The contact was not accidental.
• The contact was protracted, premediated and contrary to the ethical obligations each individual owed to the Court.
• A reasonable fair minded lay observer, armed with all the relevant facts, would reasonably apprehend that the primary judge might not bring an impartial and unprejudiced mind to the adjudication of the proceeding.
• The primary judge should have disclosed to the parties his contact with counsel for the wife either during the trial, at the time of the recusal application or before delivering judgment in the trial. Accordingly, I am satisfied that the husband has satisfied the first limb of the test.
• There is a logical connection between the conduct engaged in, including conversations in person and electronically at a time when the primary judge was deliberating on the evidence and merits of the case, and a belief in the mind of the reasonable observer that the primary judge may have considered extraneous information or that his decision may have been influenced by that conduct.
• During the trial and whilst judgment is reserved, judges are required to remain isolated from friends and colleagues with whom they have had a close professional and/or personal association. This is because the inconvenience pales into insignificance when the cost of the alternative is the prospect of diminished public confidence in the administration of justice.
• The primary judge gave the appearance of departing from the standard of even-handed justice which might reasonably give rise to suspicions that justice was not done.
• Held the appeal should be allowed and the matter remitted for rehearing.

The High Court Appeal

An application has been granted to the Husband for special leave to appeal to the High Court. The outcome of this case is still pending, so stay tuned.

The fallout – Apprehended Bias High Court appeal pending

There has been a review ordered of federal courts by the then Attorney-General Christian Porter in October 2020, not long after the appeal division of the Family Court of Australia rejected allegations of apprehended bias against a Trial Judge.

The Judicial Impartiality Inquiry, conducted by the Australian Law Reform Commission, will release its findings later this year.

What is your view? When a practitioner wishes to have private communications with the Judge including drinks and coffee, while a decision is reserved, should counsel for the opposing party be consulted and given the opportunity to say that is alright or do not do that?

If that had occurred here, I imagine the dissenting decision of the Chief Judge may have been different.

In the writer’s view, given:

• the communications were not disclosed and were only uncovered when questions were raised;
• the communications and contact was not particularised in any way, despite requests by the Husband but were clearly of a private/personal nature;
• the contact was purposeful, premeditated and contrary to the ethical obligations imposed by the Rules that govern our practice as lawyers and barristers;
• the communications took place at a time pre and post the trial, when a judgement had not been handed down;
• A lay person would might have a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the decision;

It is likely the High Court will overturn the appeal and adopt the decision of the dissenting Chief Judge.

What is your view regarding Apprehended bias of the trial judge?

The High Court appeal will be heard later this year regarding the case of apprehended bias.

The decision is likely to significantly impact on private communications between a judge and lawyers as at present, procedures relating to judicial bias, according to the Australian Law Reform Commission, are not clear and transparent.