Appearance is everything: the perils of apprehended bias

The High Court recently allowed an appeal from the judgment of the Full Court of the Family Court of Australia dismissing an appeal from the Family Court of Western Australia.1   One of the questions for determination in this case was whether the Family Court’s orders should be set aside on the ground of apprehended bias.

Background

In the Family Court proceedings, the trial judge made orders for the settlement of property under s 79 of the Family Law Act 1975 (Cth).

However, a few months after those property orders were made, rumours of private communications between the trial judge and the wife’s barrister began making their way through the grapevine of Perth’s legal social circles.

These rumours ultimately reached the husband’s lawyer, who then made enquires of the wife’s barrister. This led the wife’s barrister to disclose information in relation to her private communications with the trial judge prior to the making of the property orders.

The wife’s barrister disclosed that she had communicated with the trial judge in person, by telephone and by text, although she said that they had not discussed the substance of the case.

These communications had taken place otherwise than in the presence of, or with the previous knowledge and consent of the other parties to the litigation.

As a result, the husband appealed the property orders, with one of the grounds of appeal being that the property orders should be set aside on the ground of apprehended bias.

Judicial Independence and Apprehended Bias

The apprehension of bias principle is that a judge is disqualified, or their decision invalidated, if a fair-minded lay observer might reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions they are required to decide.

The apprehension of bias principle is so important to the perceptions of independence and impartiality that even the appearance of departure from it is prohibited to prevent the integrity of the judicial system from being undermined.

The apprehension of bias principle gives effect to the requirement that justice should be both done, and seen to be done, reflecting the fundamental principle of the common law system of adversarial trial, that it is conducted by an independent and impartial tribunal.

Once a case is underway, or about to get underway, ordinary judicial practice is that save in the most exceptional of 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.

Application of the apprehension of bias principle requires two steps:

  1. First, the identification of what it is said might lead a judge to decide a case other than on its legal merits.
  2. Second, articulation of a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits.

Once those two steps have been taken, the reasonableness of the asserted apprehension of bias must be assessed.

The decision in this case

In this case the High Court found that there were no exceptional circumstances, and that the communications between the trial judge and the wife’s barrister should not have taken place.

The High Court noted that given the timing and frequency of the communications, it could not be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, which it was not.

The High Court concluded that, in this case, a fair minded lay observer might reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide.

As a result, the High Court held that the matter must be remitted for hearing before a single judge of the Family Court.

Lavan comment

The decision of the High Court serves as a timely reminder to all parties, practitioners and witnesses involved in litigation, of the importance of not communicating or associating (or doing so only in the most exceptional of circumstances) with the decision maker in the case unless:

  1. all parties are present at the time of the communication or association; or
  2. you have the previous knowledge and consent of the other party.

Failure to do this can have serious consequences for parties, in terms of both cost and delay.

The Australian Law Reform Commission is currently reviewing the laws in relation to judicial impartiality in the High Court, Federal Court, Family Court and Federal Circuit Court. The final report for this review is due to be published in early December 2021.

If you have any questions in relation to this article, please do not hesitate to contact Cinzia Donald.