The bar does not just encourage collegiality, it positively expects it. It therefore comes as no surprise that barristers often have relatively close personal relationships with each other. Given that often judges are elevated from the ranks of the bar it is also hardly surprising that these relationships often translate to barristers having relatively close relationships with judicial officers. However friendly relationships with the bench, particularly with a judicial officer that is presiding over a hearing that a barrister is appearing in produces ethical dilemmas.

This particular conundrum, and the limits of what is and is not acceptable conduct, were recently examined in Charisteas v Charisteas [2021] HCA 29 by the High Court.

Charisteas involved a family law dispute between a husband and wife. Proceedings were commenced in 2006, and continued in what was described as ‘long running’ and ‘staggeringly expensive’ litigation.

Between 3 August 2016 and 17 August 2016 the trial of the property settlement was conducted. It was then adjourned to 13 September 2016. However on 9 September 2016 an application for a recusal was made, by ‘additional parties’ to the litigation and supported by the husband. On 13 September 2016 the application was heard and dismissed by the trial judge, who finally delivered judgment on 12 February 2018. The trial judge retired three days later. An appeal was filed by the husband on 12 March 2018.

On 8 May 2018 the husband’s solicitor wrote to the barrister who had appeared for the wife in the trial raising ‘gossip’ that the barrister and the judge may have engaged in conduct outside of court in a manner that was inconsistent with her obligations and those of the judge. The letter asked for an assurance from the barrister that such contact had not occurred, and if such an assurance was not provided, that she outline the circumstances of her dealings with him. The barrister confirmed that she had had coffee or a drink with the judge on at least four occasions between 22 March 2016 and 12 February 2018, had spoken to the judge on at least five occasions and had exchanged numerous text messages with the judge. The barrister stated that the communications did not concern ‘the substance of the case’.

The husband amended his grounds of appeal to include allegations of apprehension of bias. The matter proceeded to the Full Court of the Family Court where the appeal was dismissed by a majority. The husband then appealed to the High Court, where it was found that the Full Court should have allowed the appeal on the grounds of apprehension of bias and remitted the matter for rehearing¹.

What bias?

There was no dispute that there was no evidence of actual bias. What the High Court was concerned about was the apprehension of bias. As the court noted:

The apprehension of bias principle is so important to perceptions of independence and impartiality ‘that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined’. No prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear. No question as to the understanding or motivation of the particular judge arises.²

The court identified that the relevant issue was that the communications between the trial judge and the wife’s barrister were occurring ‘otherwise than in the presence of or with the previous knowledge and consent of’ the other parties to the litigation³. However, even if that were not the case the court accepted that, given the timing and frequency of the communications, ‘it cannot be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, and it was not’. The court stated explicitly ‘the communications should not have taken place. There were no exceptional circumstances.’⁴

The court recognised the peculiarities of the relationship between the bench and bar. As it noted:

It may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections. The means by which their contact may be resumed is by a judge making orders and publishing reasons, thereby bringing the litigation to an end.⁵

What is allowed?

It is not unusual for barristers to meet both their opponents and judicial officers in social settings. The bar holds formal social functions such as the bench and bar dinner, the bench and bar lunches and drinks as well as regular CPDs.

There are also lesser publicised social events. For instance, one of the traditions when attending a country circuit is the circuit dinner. This usually involves the barristers who have matters in the circuit inviting the presiding judicial officer and his or her staff to have dinner with them on one of the nights of the circuit, with the cost being paid by the barristers.

The effect of Charisteas is not to bring such functions to an end. The key however is the issue explicitly identified by the High Court – that any communication with a judicial officer currently presiding over a matter in which a barrister appears occur in the presence of, or at least with the previous knowledge and consent of, the other parties. Joint attendance at social functions is unlikely to be an issue if they are held in public. As the High Court noted, the opportunity for more intimate communication should occur (or resume) only after orders are made and reasons are published. BN

ENDNOTES

¹ Charisteas at [10].

² Charisteas at [18].

³ Charisteas at [14].

⁴ Charisteas at [14].

⁵ Charisteas at [22].