Apprehend this - High Court provides sobering reminder on bias

Published:
Sunday, 7 November 2021 at 10:47 pm
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In October 2021, the Full Bench of the High Court of Australia delivered judgment in Charisteas v Charisteas [2021] HCA 29(opens in a new window). The case confirms and clarifies the law on apprehended bias and provides a sobering reminder to decision-makers about how their conduct will be assessed when apprehended bias is alleged.

Key points

  • The test for apprehended bias is unchanged: ‘whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided'.1
  • However, the High Court has clarified that this fair-minded lay observer has no special knowledge or qualifications, and reminded us that the actual motivation of the decision-maker is irrelevant.
  • To avoid creating the apprehension of bias, a decision-maker should consider:
    • whether an act or omission could conceivably affect the decision
    • whether a fair-minded lay observer could articular a logical connection between the decision maker's conduct and possible impartiality in the decision making.

In the particular case of judicial officers and Tribunal members, 'they will 'disqualified if a fair-minded lay observer might reasonably apprehend [they] might not bring an impartial mind to the resolution of the question [to be] decide[d]'.2

What happened?

Throughout a property settlement dispute and subsequent recusal application, a judge:

  • met with one party's barrister for a drink or coffee around four times (after the judge had listed the trial for a hearing)
  • spoke with the party's barrister by telephone five times, whilst formulating a judgment regarding a property settlement
  • exchanged 'numerous' text messages with the party's barrister between the listing of the trial and the recusal hearing, except for a brief hiatus during part of the trial
  • exchanged 'occasional' text messages with the party's barrister while the judge was determining the recusal application and property settlement dispute.

The barrister claimed that their communication with the judge did not concern 'the substance of the … case'.

What the Court decided

The Court confirmed that assessing a recusal application on grounds of apprehended bias involves two steps:

  • identifying what might lead a judge to decide a case other than on its legal and factual merits
  • articulating a logical connection between the conduct and the feared departure from the matter being decided on its merits.

When considering the first limb, the Court determined the communication could be said to lead the judge 'to decide the case other than on its legal and factual merits'.

The Court stated the communication 'should not have taken place', and gave the following reasons:

  • The communication was without the presence or consent of the other parties.
  • '[G]iven the timing and frequency of the communications … it cannot be imagined that the other parties … would have given informed consent … if consent has been sought'.
  • While the communication paused for evidence submissions, it resumed before final submissions, continued until judgment and orders were published, and continued throughout the recusal application.
  • There were no exceptional circumstances.

With respect to the second limb, the Court acknowledged a 'logical and direct connection' between the communication and the apprehension of bias.

The Court stated a fair-minded lay observer would reasonably apprehend that the judge might be influenced by something the barrister said, or the barrister and judge's personal relationship, compromising the judge's impartiality.

Lessons

  • The apprehended bias principle 'is so important … "that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined"'.3
  • A decision-maker's actual understanding and motivation is not relevant to the test of apprehended bias.
  • A fair-minded lay observer has no special knowledge or qualifications.
  • While a trial is ongoing - from the time it is listed until reasons are published - private communication between a judge and one party's representative, without the knowledge and consent of the other parties, will likely satisfy the first limb of the apprehended bias test. This is because it is a departure from the norms of judicial and professional conduct.
  • Once litigation has concluded - by making orders and publishing reasons - private communication between a judge and relevant legal practitioners may resume.

Contact our team

Please get in touch with our team if you need assistance. 

Alanna Mitchell, Assistant Victorian Government Solicitor
Phone: 0477 720 552
Email: alanna.mitchell@vgso.vic.gov.au

Cassandra Tanner, Lead Counsel
Phone: 0456 996 763
Email. cassandra.tanner@vgso.vic.gov.au

Footnotes

  1. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
  2. The principle comes from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, and was confirmed in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577.
  3. Charisteas v Charisteas [2021] HCA 29 (6 October 2021) at [18], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.

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