Background
Deputy Chief Judge Sharon Freund sought judicial review of two decisions made by the Judicial Commission of New South Wales. The first, made in June 2026, summarily dismissed her complaint against the Chief Judge of the Local Court. After the Chief Judge raised matters from that decision with the Attorney General, the Attorney General referred a complaint concerning Freund to the Commission.
In August 2026, the Commission decided not to summarily dismiss the Attorney General’s complaint and referred it to its Conduct Division. Although the Chief Judge was excluded from considering that complaint, Commission staff had inadvertently sent him relevant meeting papers. After reading them, he sent a WhatsApp message expressing a view about the material to Commission member Mr Thangaraj SC. The communication was not disclosed to the Commission before its decision. Freund ultimately pursued apprehended bias as the basis for challenging the August decision, while her claims concerning the June decision and other relief were dismissed by consent.
The Court’s Holding
The Court of Appeal held that the August decision was affected by apprehended bias and therefore involved jurisdictional error. A fair-minded lay observer might apprehend that Mr Thangaraj, having received the Chief Judge’s comments, might have influenced the Commission and diverted it from the impartial course it had sought to preserve by excluding the Chief Judge.
The Court stressed that it found no deliberate misconduct by any Commission member or staff member. Applying the “double might” test, it quashed the decision not to summarily dismiss the complaint, the referral to the Conduct Division, and the associated resolutions and appointments. It remitted the complaint to the Commission for determination according to law.
Key Takeaways
- An undisclosed communication to one member of a decision-making body may support apprehended bias where that member might have influenced the body’s decision.
- Apprehended bias constitutes jurisdictional error regardless of whether the communication actually affected the outcome.
- The Court did not decide the broader question of when bias affecting one member of an administrative body must legally be attributed to the body as a whole.
Why It Matters
The ruling underscores that excluding a potentially interested participant from formal deliberations may not be enough when that person nevertheless receives confidential papers and communicates views to a participating decision-maker. Transparency about such communications is critical to preserving the apparent impartiality of collective administrative decisions.
The judgment is deliberately narrow. It invalidates this referral because of the particular undisclosed communication and uncertainty about its possible influence, without alleging actual bias or resolving the general law governing bias by one member of a multi-member body.