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Communication with the Court November 20, 2016

John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34

[12] The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case. See, for example, Re JRL; Ex parte CJL [1986] HCA 39;  (1986) 161 CLR 342 (“Re JRL”) at 346 (Gibbs CJ) and 350 (Mason J), both citing Kanda v Government of Malaya [1962] UKPC 2;  [1962] AC 322 at 337 and Reg. v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127. In this context, communications made by one party without the knowledge of the other are governed by the principle that a judge should disqualify himself from hearing a matter where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues in the case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63;  (2000) 205 CLR 337 (“Ebner”) at 344; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429;  [2011] HCA 2 (“British American v Laurie”) at 464-5, [139]-[140]; Re JRL at 351. This is the apprehension of bias principle.

Re: J.R.L.; Ex parte C.J.L.  [1986] HCA 39;  (1986) 161 CLR 342

Gibbs CJ:

4. It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see Kanda v. Government of Malaya  [1962] UKPC 2;  (1962) AC 322, at p 337. McInerney J. stated the practice as it is generally understood in the profession in Reg. v. Magistrates’ Court at Lilydale; Ex parte Ciccone  [1973] VicRp 10;  (1973) VR 122, at p 127, as follows:

“The sound instinct of the legal profession -judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”

not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court: see Halsbury’s Laws of England, 4th ed., vol.9, par.28 and cases there cited.

Mason J:

In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice (In re Dyce Sombre [1849] EngR 498;  (1849) 1 Mac & G 116, at p 122;  [1849] EngR 498;  41 ER 1207, at p 1209, per Lord Cottenham L.C.). Indeed, it is regarded as a serious contempt.

Dawson J:

2. It is fundamental in judicial proceedings of the ordinary kind that during the conduct of a case a judge should not communicate privately with a party or a witness. If it can ever be justified, it certainly cannot without the prior knowledge and consent of all parties.

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