Coffee or Collusion: How should lawyers avoid the appearance of bias in Court?
The High Court has found that a WA judge and barrister have fallen afoul of “apprehended bias” by engaging in private communications together.
The judge was hearing an appeal in the case of Charisteas v Charisteas, a particularly arduous and expensive family law matter, when His Honour engaged in secret text messages, coffee dates and phone calls with the barrister for the wife.
In a decision expected to redefine judicial impartiality, the High Court found it “particularly troubling” and “difficult to comprehend” that the judge did not find it appropriate to disclose his communications with the barrister to the Court.
The husband in Charisteas only became aware of the judge’s relationship with the wife’s barrister when “gossip amongst family law practitioners” spread.
The barrister in question did admit to her dealings with the judge, however, she characterised them as not concerning “the substance of the…case”.
The question for the High Court then became does that really matter? How independent do we expect lawyers and judges to be?
Particularly in a small city like Perth where many professionals in the legal industry may already know one another, and especially so within the practise of family law.
It is a well-established facet of our judicial system that judges must remain independent and impartial.
In this present case, it is important to point out that actual bias was not at play.
Rather, the husband appealed to the Court on the basis of apprehended bias.
Apprehended bias is governed by the principle 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” (akin to the familiar “pub test”).
In applying this principle, the High Court found the communications between the judge and barrister should not have taken place. This was no exception to the apprehended bias principle.
The ordinary person, not a lawyer or legally minded individual, could rightly apprehend the judge in Charisteas might not have brought an impartial mind to the resolution of the trial. The 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”.
It did not matter that the barrister said the communications did not involve the “substance of the case”.
The fact that any private conversations had taken place between the judge and barrister during the matter was enough to give rise to the apprehended bias principle.
The High Court in Charisteas highlights the relationship between impartiality, independence and public confidence in the judicial system.
For this reason, any Court will take bias seriously. So seriously, that even apprehended bias will be treated with the same ferocity as actual bias.
However, this does not mean that lawyers and judges should draw a line in the sand and socially distance indefinitely.
The High Court acknowledges that many judges and barristers may have “continuing professional and personal connections”.
However, these relationships should only resume once a judge makes orders or an end is bought to litigation.
Lawyers should ensure that during court proceedings all communications with judicial officers remain strictly professional.
Otherwise, practitioners run the risk of damaging public confidence in the legal sector and lengthening litigation by years and thousands of dollars.
The decision in Charisteas marks a return to the guiding principles of impartiality and is expected to cause ripples in the final report on Judicial Impartiality to be released by the Australian Law Reform Commission in December.
If you have concerns about the way a matter is being handled, or you simply know someone who is going through a family law matter and needs so advice, don’t hesitate to contact one of our growing Family Law team at Lynn & Brown Lawyers.
About the author: Jasmine Trewin is a family lawyer who has completed both a Bachelor of Laws and a Bachelor of Arts (majoring in journalism) and has spent some time working at the Federal Court before joining Lynn & Brown in August 2021.