Final word from the Saloon … Judge and barrister in chit-chats during trial in which both were involved … Timeline of connections … Drinkies, coffee and texting … Not a good look … Curious reasons from Full Family Court majority … Max Shanahan reports
In Charisteas v Charisteas the High Court unanimously set aside the Full Family Court majority’s peculiar reasoning that extracurricular contact between a barrister and a judge during the course of litigation did not give rise to an apprehension of bias.
It was old hands Steven Strickland and Judy Ryan in the majority, with the family law outsider Willy Alstergren CJ dissenting.
The litigation – described as “long, tortured and staggeringly expensive” – arose out of the Charisteas’ 2005 divorce and has been running ever since.
In 2016, Western Australian Family Court judge John Walters was assigned to the third trial in the affair.
While proceedings were underway, the husband applied for Walters to recuse himself on the ground of apprehended bias on the basis of statements and rulings made by the judge during the hearing.
Dismissing the application, Walters delivered his judgment in February 2018 and duly retired on medical grounds three days later.
In May 2018, the husband’s solicitor wrote to barrister Gillian Anderson, who represented the wife, after hearing some “gossip” that the barrister and the judge had something of a relationship during the period of the trial.
In response, Anderson said that, while the relationship was never intimate, she and Walters had exchanged “numerous” text messages, and that she had met the judge for a drink or coffee on four occasions between the beginning of the trial and the judgment.
According to Anderson, the communications did not concern “the substance of the case” – which begs the question about the other parts of the case. There was a brief hiatus during the evidence stage of the trial.
The timeline looked like this …
On appeal to the full bench of the Family Court, Strickland and Ryan JJ found that the meet-ups would not give rise to an apprehension of bias in a reasonable lay observer, – another run around the block for Ebner v Official Trustee in Bankruptcy.
In the majority’s mind, this reasonable observer would be “properly informed as to the judiciary and the bar,” with a well-formed understanding of the dynamics of legal social circles.
As a result, the reasonable lay observer would be “able to tolerate” some degree of communication between judge and legal representative, even if undisclosed.
The Australasian Institute of Judicial Administration’s conduct guide is vague on these relationships – probably deliberately, so as not to fillet the web of relationships between bench and bar.
The High Court was most displeased with the Strickland-Ryan interpretation. In a moment of clarity, the court said that “it would defy logic … to imbue the hypothetical observer with professional self-appreciation of this kind”.
While a high level of self-appreciation might give the hypothetical observer acute insight into the mind of a lawyer, it would certainly negate any element of reasonableness.
The High Court sided with Willy Alstergren in describing the non-disclosure of the relationship as “particularly troubling” given that complaints of bias had already been made against Walters on different grounds, and bluntly pronouncing that “the communications should not have taken place”.
There’s speculation adrift as to whether the Bar Association of WA might take initiate action action against Anderson for being stupid.
It’s an excellent case for consideration by the Australian Law Reform Commission as part of its inquiry into judicial impartiality.
People at the at family law shop Justice Family Lawyers see the ruling as having “certain implications for members of the bench”.
Haydar Shkara, the firm’s principal lawyer and one-time Olympic Taekwondoin, said that “the result of this case means that judges will now have to further disassociate themselves from their friends and colleagues in the legal profession”.