Where wife's barrister engaged in private communication with trial judge, would a fair‑minded lay observer reasonably apprehend that the trial judge might not bring impartial mind to decision?

Charisteas v Charisteas [2021] HCA 29 (6 October 2021)

Intro:-

This is an appeal from a judgment of the Full Court of the Family Court of Australia dismissing an appeal from the Family Court of Western Australia.

Facts:-

The appellant ("the husband") and the first respondent ("the wife") married in 1979 and separated in 2005. In 2006, the husband commenced proceedings under s 79 of the Family Law Act 1975 (Cth) ("the Act") for orders settling the property of the parties to the marriage.

In 2011, Crisford J of the Family Court of Western Australia made property settlement orders under s 79 of the Act ("the 2011 Property Orders").Paragraphs 2 to 4 of the 2011 Property Orders provided for the early vesting of an identified trust ("the Trust"); upon vesting, for the distribution of the trust fund and income in accordance with the trust deed between the husband, the wife and their three adult children; and, before such distribution, for a payment of $338,000 to the husband's mother, who was a general beneficiary of the Trust ("the Early Vesting Orders").

In April 2013, the Full Court of the Family Court of Australia set aside the Early Vesting Orders on the basis that the husband's mother had been denied procedural fairness. The Full Court did not make any consequential orders whether remitting that issue for rehearing or otherwise. The parties could not agree on what was then to happen. In February 2015, Walters J of the Family Court of Western Australia ("the trial judge") published a lengthy interlocutory judgment in which his Honour held that the 2011 Property Orders were not final orders and that the Court retained power to make property settlement orders under s 79 of the Act.

On 12 February 2018, the trial judge delivered judgment and, among other things, purported to make orders under s 79 of the Act ("the 2018 Property Orders"). Those orders did not set aside or vary the 2011 Property Orders but were inconsistent with them. Three days later, the trial judge retired. On 12 March 2018, the husband appealed to the Full Court of the Family Court of Australia against the 2018 Property Orders.

In May 2018, in response to the husband's solicitors, the wife's barrister responded stating that she had met with the judge for a drink or coffee on approximately four occasions between 22 March 2016 and 12 February 2018; had spoken with the judge by telephone on five occasions between January 2017 and August 2017; had exchanged "numerous" text messages with the judge between 20 June 2016 and 15 September 2017 (except for a brief hiatus during the evidence stage of the trial); and had exchanged "occasional" text messages with the judge from 15 September 2017 until 12 February 2018. The barrister concluded by stating that the "communications" with the trial judge did not concern "the substance of the ... case". The husband filed an amended notice of appeal adding grounds alleging apprehension of bias.

On appeal to the Full Court there were two relevant issues. The first was whether the 2018 Property Orders should be set aside on the ground of a reasonable apprehension of bias arising from the trial judge's private communications with the wife's barrister. There was no suggestion of actual bias. The second was whether the power under s 79 of the Act was capable of being exercised by the trial judge when Crisford J had already made the 2011 Property Orders. By majority (Strickland and Ryan JJ, Alstergren CJ dissenting), the Full Court dismissed the appeal. Strickland and Ryan JJ rejected the allegations of apprehended bias and dismissed the appeal against the 2018 Property Orders. Alstergren CJ would have allowed the appeal on the ground of apprehended bias and remitted the matter for rehearing. His Honour did not address s 79 of the Act.

The husband's appeal to this Court raised the same issues.

Issues:-

a) whether the 2018 Property Orders should be set aside on the ground of a reasonable apprehension of bias arising from the trial judge's private communications with the wife's barrister.

b) whether the power under s 79 of the Act was capable of being exercised by the trial judge when Crisford J had already made the 2011 Property Orders?

Consideration:-

Apprehended bias

Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. 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". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

As five judges of this Court said in Johnson v Johnson, 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".

Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by McInerney J in R v Magistrates' Court at Lilydale; Ex parte Ciccone in 1972:

"The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, 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, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined."

In this matter, what 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. Indeed, 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 his Honour was required to decide. The trial judge's impartiality might have been compromised by something said in the course of the communications with the wife's barrister, or by some aspect of the personal relationship exemplified by the communications. Accordingly, there is a logical and direct connection between the communications and the feared departure from the trial judge deciding the case on its merits.

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" (emphasis added). No prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear. No question as to the understanding or motivation of the particular judge arises.

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.

The majority also reasoned, the hypothetical observer would be "able to tolerate" some degree of private communication between a judge and the legal representative of only one party, even if undisclosed. The majority considered that the hypothetical observer would accept in this case that the judge and the wife's barrister would adhere to professional restraint in what was discussed and would accept that a professional judge who has taken an oath of office would not discuss the case at hand.

Once again, this reasoning is erroneous. The alignment of the fair-minded lay observer with the judiciary and the legal profession is inconsistent with the apprehension of bias principle and its operation and purpose. The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system[. The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. It would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self‑appreciation of this kind.

It may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections. The means by which their contact may be resumed is by a judge making orders and publishing reasons, thereby bringing the litigation to an end. It is obviously in everyone's interests, the litigants in particular, that this is done in a timely way.

Section 79

Section 79 of the Act confers power on a court exercising jurisdiction in proceedings by virtue of the Act to make an order for the settlement of property. When an order is made under s 79, subject to the limited jurisdiction to vary it or set it aside given by s 79A of the Act, "the power of the ... Court to make an order under s 79 is treated as having been exercised and as exhausted"[21].

Crisford J set out her Honour's findings of the assets and liabilities of the parties to the marriage and the 2011 Property Orders dealt with all of that property. The s 79 power had been exercised and was exhausted. A Full Court of the Family Court set aside the Early Vesting Orders, which, as noted, were paras 2 to 4 of the 2011 Property Orders. It is important to understand what that Full Court did and did not do. When it set aside the Early Vesting Orders, the Full Court did not deal with the re-exercise of the s 79 power in relation to the Early Vesting Orders or remit that aspect for further hearing. But nor did the Full Court alter any other aspect of the 2011 Property Orders.

Given that there is to be a retrial, that remains the position. The 2011 Property Orders, without the Early Vesting Orders, have not been set aside. Contrary to the view reached by the Full Court that set aside the Early Vesting Orders, the power under s 79 of the Act to deal with the property the subject of the Early Vesting Orders is not spent. The Family Court of Western Australia retains the power under s 79 to make orders that, in all the circumstances, it is satisfied are just and equitable, in relation to the property the subject of the Early Vesting Orders. If orders were to be made in the same form as the Early Vesting Orders, the 2011 Property Orders would stand unaffected. By contrast, if some different order were to be made with respect to the early vesting and distribution of the Trust, there may be a question about whether a party can show that powers can and should be exercised under s 79A.

Conclusion:-

The appeal be allowed with the first respondent to pay the costs of the appeal.

The orders of the Full Court of the Family Court of Australia made on 10 July 2020 be set aside and, in their place, there be orders that:

(a) the husband's appeal be allowed with the wife to pay the costs of the appeal, including any costs of the wife's cross-appeal;

(b) the orders made by Walters J on 10 February 2015 and 12 February 2018 be set aside; and

(c) the application for orders pursuant to s 79 of the Family Law Act 1975 (Cth) further or in addition to paragraphs 1, 5-13 and 15 of the orders made by Crisford J on 9 December 2011 be remitted to the Family Court of Western Australia for rehearing.