ON 30 JULY 1986, the High Court of Australia delivered Re JRL; Ex parte CJL  HCA 39; (1986) 161 CLR 342 (30 July 1986).
During a luncheon adjournment, a Family Court counsellor went to the chambers of a judge and had a private conversation in which she expressed certain things including a recommendation that separate representation being granted to the child. Her views were adverse to the husband. Counsel for the parties were then invited to the judges chambers where they were introduced to the counsellor and informed of her recommendations. Comments made by the judge indicated that there had been a private conversation between the counsellor and the judge. After lunch, counsel for the wife made an application seeking appointment of separate representation for the child. The husband asked for the judge to disqualify himself.
The High Court held that it was reasonable for the husband to apprehend that the judge might not bring and impartial or unprejudiced mind to the matter having had a private conversation with the counsellor who had formed an adverse view of him. On that basis, the court made absolute the order nisi for a writ of prohibition directing that the judge be prohibited from proceeding further with the matter.
The case is notable for Justice Mason’s warning that judicial officers are required to discharge their obligations unless disqualified to do so. They must not readily accept suggestions of appearance of bias, otherwise parties might be encouraged to seek their disqualification, without justification, for strategic reasons.
Per Mason J at 352:
“There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
1300 00 2088