Throughout a property settlement dispute and subsequent recusal...

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.

https://www.vgso.vic.gov.au/apprehend-high-court-provides-sobering-reminder-bias

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