The high court has found that a judge in a family law case should have disclosed he was in private communication with a barrister who was also involved in the trial, describing the failure to do so as “particularly troubling”.
In a ruling that could reshape the understanding of judicial impartiality in Australian courts, the court found it was “difficult to comprehend” how the trial judge could have failed to appreciate the need to disclose the communications.
The court was hearing an appeal in the case of Charisteas v Charisteas, a long-running family law matter .
The full court of the family court of Australia had dismissed an appeal that Mr Charisteas had made relating to a decision from the family court of Western Australia judge John Walters. Charisteas argued that Walter’s undisclosed communication with the barrister Gillian Anderson, who represented Ms Charisteas, gave rise to an apprehension of bias. There was no suggestion of actual bias and Mr Charisteas had been seeking a retrial.
Mr Charisteas appealed to the high court, which handed down its ruling on Wednesday. It granted the appeal, and set aside the orders of the full court of the family court made last year.
The Charisteas have been involved in family law proceedings for almost 15 years.
In submissions to the high court, Mr Charisteas says that despite a recusal application having previously been made against Walters, the judge failed to declare a relationship with Anderson.
The court heard that between 22 March 2016, when the Charisteas’ trial was listed before Walters, and 12 February 2018, when Walters delivered his decision in the case, the judge and Anderson met for a drink or coffee about four times, exchanged numerous text messages, and spoke on the phone on at least five occasions, according to Anderson’s evidence. Walters retired three days after handing down the Charisteas decision. The outcome was largely favourable to Ms Charisteas.
Anderson disclosed the relationship after lawyers for Mr Charisteas asked her about gossip in Perth legal circles. She denied the relationship was intimate, and said that she had not discussed the “substance” of the case with Walters.
According to the ruling of high court chief justice, Susan Kiefel, and four other judges, it was clear there were no exceptional circumstances that warranted the communications taking place, and that it would be unlikely the opposing side would have allowed them to occur, even if they had been disclosed.
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The court found that a fair-minded observer would reasonably apprehend that Walters might not bring an impartial mind to resolving aspects of the case because of the communications.
“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.”
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The court found that in several instances the reasoning of the full court of the family court in dismissing the application was erroneous. It was incorrect to conclude that an observer would accept that Walters and Anderson had adhered to “professional restraint” in their communications, or would accept that Walters may have mistakenly felt he did not need to disclose the communications, but that this failure was not sinister.
The Australian Law Reform Commission is reviewing the laws in relation to judicial impartiality as a result of the case.
Its inquiry is examining whether the law about actual or apprehended bias relating to judicial decision-making “is appropriate and sufficient to maintain public confidence in the administration of justice” and whether it provides clarity to decision-makers, the legal profession and the community.
Its final report is due in December.