Exchanges between Bench and Bar Table in the case of Charisteas when before the High Court for Special Leave

Introduction

Some time ago, I wrote an article about the decision of the Full Court of the Family Court of Australia in the case of Charisteas [2020] FamCAFC 162.

That article can be viewed here.

The decision of the Full Court can be viewed here.

Since the split decision of the Full Court, where the dissenting Judgment of the Chief Justice would have allowed the Appeal, there has been an Appeal to the High Court by Mr Charisteas, who continues to want the Judge's decision set aside and a rehearing.

The High Court heard the Special Leave Application and at the conclusion of the hearing, immediately granted Special Leave for the Appeal.

It is interesting to see how the case unfolded at the Special Leave Application and a read of the relatively short Transcript of the proceedings (which can be viewed here) saw quite an easy outing for the Appellant's Senior Counsel and a rather tougher day for the Respondent's Senior Counsel.

At the Hearing - Who Said What?

Senior Counsel for the Appellant was almost immediately informed by the Court that it wished to hear from Senior Counsel for the Respondent.

Justice Bell: "Yes, I believe we have both of those. Mr Robertson, I think perhaps it might be most useful if we were to hear from Mr Berry first."

Mr Berry of Senior Counsel was permitted a short address before being asked by Justice Bell....

Justice Bell: "Mr Berry, I wonder if I could just interrupt at this moment to just raise this with you. At application book 516, paragraph 175, in the joint reasons in the Full Court, it is noted that after judgment was reserved, the judge had......private meetings with counsel for the wife –

And I interpolate this in circumstances in which the litigation had a long and acrimonious history. Their Honours in their joint reasons observed that:

judicial practice required [the judge] to establish that the other parties agreed –

that that private contact:

could go ahead.

Their Honours went on to reason that the circumstance that that had not occurred suggested:

that the primary judge –

may not have appreciated:

that the strictures against private communication which applied –

It was then said that:

the hypothetical observer would understand that a judge may hold genuinely mistaken views about the application of these principles and, as a reasonable person, would not regard the lack of disclosure as suggestive of anything sinister about the contact.

Mr Berry, at first blush, it might be thought that that is to pose a standard somewhat less rigorous than the standard in Ebner and Johnson, and other decisions of this Court."

A very short time later, Mr Berry SC was asked by Justice Keane...

Justice Keane: "Mr Berry, ordinarily, if counsel for one side wishes to have private communications with the judge while a decision is reserved, counsel raises the question with the other side, who are given the opportunity to say that is all right or to say do not do that. That did not happen here. On your submission, if there had been such a request, and, as almost certainly would have happened, the other side would have said, under no circumstances should you engage in any communications whatsoever until the decision is delivered, do you suggest that the judge and counsel could, thereafter, have properly engaged in private communications?"

Mr Berry SC properly conceded that if permission had been sought, and was refused, counsel and Judge could not have engaged as such. Immediately, Justice Keane continued...

Justice Keane: No. So, the situation is different, is it, because they did not even take that elementary step in relation to ensuring that their ethical obligations were observed?

There was then this exchange...

Mr Berry SC: It bears, your Honour, on what inference can be drawn from their failure to do so, whether the inference from the failure is a deliberate decision to contravene the obligation, or whether, as the majority said, it might be inferred that there was a misunderstanding, given that there was some evidence of a clear observance of the standards, and ? ? ?

Justice Keane: So, is your contention that it turns on whether or not the non?observance involves deliberate defiance as opposed to simply non?observance?

That sort of question from a Judge who is considering the proper administration of Justice and Judicial conduct, just seems out of place to me....given the High Court is being addressed by Counsel and told, there should be a distinction between a Judge not observing rules or deliberately defying them. Who does a Judge defy? Either he observes the law or he doesn't it will seem to a lay person.

Justice Bell (again interrupting) wanted to know from Mr Berry SC whether Western Australian counsel were of the view they could have private dealings with a reserved trial Judge in their matters and Mr Berry SC properly confirmed he had the view it was not permitted.

The High Court then informed Mr Robertson SC for the Appellant, that he was not required to be heard further and Special Leave was swiftly granted.

Comment

Whilst there is much at stake between the spouse parties, family lawyers keenly await whether the High Court will side with the Chief Justice or with the majority Justices of the Full Court of the Family Court.

In my earlier article, the view my staff and I took was aligned with the dissenting Judgment of the Chief Justice, given that what the dealings between the Trial Judge and barrister for the Wife looked like and what the rules said, was simply enough for a lay person to form sufficient concern about the fair administration of justice. If dealings were impermissible, they should not have happened and it is irrelevant to examine whether others might have confidence that a Judge and barrister would not speak of the case.

The Special Leave hearing seemed to be heavy going for the Respondent Wife who seeks to hold onto the Judgment despite interaction between Counsel and trial Judge in the period the decision was reserved.

I suspect that the heavy going will continue and the Chief Justice's view will win the day.

Thanks for reading,

Dean Evans