14 Oct 2021

Social distancing: High Court warns on contact with the Judge during litigation

By Tim Jones, Luke Furness and Ryan Branch

Inappropriate contact with the Court during litigation can be costly, the High Court reminds us.

The High Court has delivered a stark reminder to practitioners that there should be no contact with a Judge except in "the most exception of cases" or with the consent of all parties to the litigation (Charisteas v Charisteas [2021] HCA 29). Parties who fail to meet that standard risk costly, time-consuming bias allegations that can up-end a case. It's not just a rule for barristers and solicitors – witnesses and in-house counsel also need show caution in casual contacts with Judges and Courts.

The rules on Court/Judge contact

Commonly, there are two types of inappropriate contact with the bench:

First, there are two-way dealings between the Court and a party (eg. social meetings with the Judge or potentially a ruling in an earlier interlocutory matter or conclusions reached about a key witness) that can risk apprehended bias. That principle disqualifies a Judge if a "fair-minded lay observer" might think the Judge cannot bring an impartial mind to the case.

Apprehension of bias is a two-step test:

  1. Identify the contact, existing relationship etc. in question; and
  2. Identify a logical connection between that matter (contact, existing relationship etc.) and the Judge potentially not deciding the case on its merits.

The test is from the perspective of a lay observer, not a lawyer or a psychologist. We might call that the "pub test". Additionally, the test is about appearances. It does not require you to predict or suspect that the Judge was biased or proof the contact involved discussing the case – which we might call the "sniff test". The impact of a successful bias claim is sweeping – usually a re-trial before a different Judge, increasing costs for all parties. However in our experience, Judges are very cognisant of apprehended bias and usually they will identify at the start of a hearing the existence of a social or previous professional relationship (for example) and their view that no bias exists.

Second, there is one-way Court contact (eg. emailing the Judge) without the other parties' consent or knowledge that risks solicitor misconduct. This is surprisingly prevalent, even in large commercial matters. As well as being professionally embarrassing, non-consensual contact with the Court can draw censure from the Judge and put your case at a strategic disadvantage.

The example in Charisteas

In (Charisteas v Charisteas [2021] HCA 29), the Family Court was considering property settlement orders in long-running litigation between a husband and wife. Prior to the delivery of judgement, the Trial Judge and the wife's barrister had:

  • met for a "drink or coffee" approximately four times;
  • spoken on the telephone several times; and
  • exchanged "occasional" text messages after the trial had concluded and before judgment.

The husband's lawyers had heard "gossip" that the pair had been meeting and raised concerns with the wife's lawyers who only then disclosed what had happened. The husband added apprehended bias to his grounds of appeal. He won.

The High Court considered that in the eyes of a fair-minded lay observer, the original Judge's impartiality might have been compromised either:

  • because of something said in the communications with the wife's barrister; or
  • by the personal relationship that clearly existed between the Judge and the barrister.

It should be noted that that there was no suggestion by any party that there was actual bias, only grounds for a reasonable apprehension of bias.

Key lessons for managing Court contact

  1. Correspondence to the Court should be strictly with the other parties present, or with their consent.
  2. In most cases, consent means consent to the exact words used, not the gist or the vibe. Consent does not mean copied or warned of in advance, it means positive agreement.
  3. Don't rely on arguing that the correspondence is trivial. Even seemingly small issues like requesting adjournments or asking for more time to file a document are substantive for this purpose.
  4. It's not just about the Judge. Be careful about contact with Judge's Associate or other Court staff including before and after Court, in elevators, on planes etc. A few jokes about the case may seem harmless, but could lead to a re-trial.
  5. Similarly, it's not just about the lawyers and barristers, witnesses and clients can also stand accused of inappropriate contact with the Court.
  6. Do not rely on claiming that the communication occurred after the trial. The case might be finished from your perspective, but while the Judge is writing his or her judgment, bias risk remains.
  7. There's no "small country town" exemption. Where social contact is practically unavoidable, seek the other parties consent early.
  8. There is no absolute ban on social contact. The key is specific consent from all parties.

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Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.