A High Court decision has been handed down recently, clarifying the fine line between acceptable and unacceptable communication among the legal profession.
In Charisteas v Charisteas, the husband commenced proceedings for property settlement in 2006. The proceedings, described as “long-running and staggeringly expensive”, were finalised in 2011, with a division of 38% to the wife and 62% to the husband. These orders were set aside in 2013, and another judgment was delivered in May 2016. However, these too were appealed by the husband in 2018 – but not because he thought they were not just or equitable.
Instead, the husband instructed his solicitor that he had heard ‘gossip’ of the wife’s barrister and the trial judge engaging outside of court, “in a matter inconsistent with her obligations and those of the judge.” A few weeks later, the barrister indeed admitted that, from 2016 to 2018:
- She met with the judge for a drink or coffee on approximately four occasions;
- She spoke with the judge by telephone on five occasions; and
- She exchanged ‘numerous’ texts with the judge.
However, the barrister stated these communications did not concern the “substance of the case”- but is this sufficient? What arises here are questions of apprehended bias, as discussed in Ebner [2000]. The question is, in light of the above communications, “would the judge bring an impartial mind [to the case]?” The High Court held the judge’s “impartiality may have been compromised”, and therefore determined that there was a connection between the barrister and judge’s communication and some bias and partiality.
The High Court also noted that the judge’s lack of disclosure about the communication is troubling and suggested this may give an observer reason to doubt the barrister’s claims that they never discussed the “substance of the case.” They referenced Gibbs CJ and Mason J’s ruling in Re JRL (1986), stating that the “sound instinct of the legal profession … has always been that … there should be no communication … between the judge and one of the parties.”
The wife then sought to file a notice of contention, asserting that the husband had previously waived his right of complaint of bias. This was refused, the husband’s appeal was allowed and the matter was remitted to the Family Court of Western Australia for rehearing, with the wife to pay the costs.
This decision is a stern reminder to ensure solicitors, barristers and judges alike refrain from unmerited communications while mutual proceedings are on foot.
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