Court finds communication between excluded chief judge and commission member raised apprehended bias
The NSW Court of Appeal has quashed the Judicial Commission’s decision to refer a complaint against the deputy chief judge of the local court to its conduct division, finding that apprehended bias affected the decision and constituted jurisdictional error.
In Freund v Attorney General of New South Wales [2026] NSWCA 232, the court found that communication between the chief judge of the local court and a commission member raised a reasonable apprehension that the commission might have been diverted from the impartial course it sought to maintain by excluding the chief judge from its deliberations.
The proceedings concerned two commission decisions made in June and August 2026. In June, the commission dismissed a complaint made by the deputy chief judge against the chief judge. The chief judge then drew the matters in that decision to the attorney general's attention.
The attorney general then referred a complaint concerning the deputy chief judge to the commission under s. 16 of the Judicial Officers Act 1986 (NSW).
On 10 August, the commission decided not to dismiss the complaint summarily and referred it to its conduct division under s. 21 of the Act.
The parties agreed that commission staff had inadvertently sent papers concerning the attorney general's complaint to the chief judge. However, he was excluded from the commission's deliberations and decision on that complaint.
After reading the papers, the chief judge sent a WhatsApp message to a commission member on 29 July, expressing views about correspondence referred to in the papers.
The member responded that he had not read the August papers. The commission did not disclose the communication before it made its decision on 10 August.
The Court of Appeal considered whether a fair-minded lay observer might apprehend that the commission had been diverted from the impartial course it sought to maintain by excluding the chief judge from its deliberations.
The court found that the commission member, potentially affected by the chief judge's comments, might have influenced the commission's decision.
It emphasised that no party alleged deliberate conduct by commission members or staff, and the court made no such finding.
The court also noted that apprehended bias constituted jurisdictional error regardless of whether it actually affected the decision.
The court quashed the August decision, associated resolutions and appointments, and remitted the complaint to the commission for determination according to law. It dismissed the remaining claims by consent and ordered the commission to pay the applicant's costs.
