Federal Court of Australia

Hendry v State of Western Australia (No 3) [2025] FCA 1262

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 18 July 2025 is dismissed.

2.    Liberty to any party to apply in relation to the costs of the application by brief written submission filed on or before 30 October 2025.

3.    The proceeding is to be referred to the National Operations Registrar for the purposes of reallocation.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Ms Hendry, applies for me to recuse myself from this proceeding. For the following reasons, the application will be dismissed. However as will be explained, the manner in which Ms Hendry has pursued the application is such to give rise to apprehended bias on my part. On the Court's own motion, therefore, the proceeding will therefore be referred to the Court's National Operations Registry for reallocation.

2    The factual basis of the recusal application appears from three affidavits Ms Hendry has filed, as well as a memorandum I sent to the parties, and an affidavit affirmed by Fiona Stanton, who is briefed in this proceeding as counsel for the first respondent, the State of Western Australia. Ms Hendry contends that I am in a position of apprehended bias because of an alleged personal association with Ms Stanton, including a donation that Ms Stanton made to a fundraiser to benefit my brother-in-law. Ms Hendry also contends that apprehended bias arises because of an asserted disparity in procedural treatment between herself and the represented parties in relation to the acceptance of court documents for filing.

The factual basis of the recusal application

3    Since the recusal application puts the nature of my association with Ms Stanton in issue, on 11 September 2025 I sent the following Memorandum to the parties:

1    By interlocutory application filed on 18 July 2025, the applicant has applied for me to recuse myself from this matter on the ground of apprehended bias. The basis of the application is a 'personal relationship' with Fiona Stanton, a barrister who is briefed to appear on behalf of the first respondent in the matter.

2    In the circumstances, it is appropriate that I inform the parties as to my acquaintance and dealings with Ms Stanton.

3    Ms Stanton and I have known each other since we attended the University of Western Australia Law School at the same time (I graduated from the Law School in 1991). As best I can recall, I knew her name during that time, and we may have attended the same Law School social functions or university social functions occasionally. I do not recall ever attending any smaller or private social gatherings with her during my time at university. I would describe Ms Stanton as having been an acquaintance during that period.

4    Ms Stanton and I each worked in various capacities in the Western Australian legal profession between 1991 and 2017. I was aware of her during that period, but we did not work at the same law firms or, as best I can recall, work on the same matters (whether in the same interest or as opponents). I do not recall attending any social events which Ms Stanton also attended.

5    In 2017, I was on the Board of Francis Burt Chambers. Ms Stanton joined the Bar during that year and was accepted as a member of Francis Burt Chambers. In my capacity as a member of the Board, I had interactions with her for the purposes of her joining chambers and in her capacity as a member of Chambers. Ms Stanton and I likely spoke socially at one or more Francis Burt Chambers social functions during the time when we were both at those chambers.

6    I can recall speaking to Ms Stanton socially at one of the annual dinners for members of Francis Burt Chambers, in 2017. I recall that on that occasion (but possibly before), I learned that Ms Stanton had been to Hollywood Senior High School with my wife's brother, and had been on friendly terms with him at high school. I do not know what contact they had after high school, if any.

7    Ms Stanton and I are Facebook friends. According to Facebook, we became Facebook friends on 31 March 2018. Mutual Facebook friends include my wife and her brother.

8    I was on the coaching faculty for the Australian Bar Association Essential Trial Advocacy Course, which ran for a week in Adelaide in July 2018. Ms Stanton was a participant in the course, and we likely spoke socially during that time.

9    Since being appointed to the Federal Court in March 2019, I do not recall seeing Ms Stanton other than in Court, or having any communications with her. But it is possible we spoke at Bar and Bench dinners or similar large gatherings.

10    In June 2024, my wife's brother was afflicted with a severely disabling medical condition, which meant that he could not work. He was in intensive care at Royal Perth Hospital for what proved to be some six months. My wife, along with two others, organised a GoFundMe fundraiser to raise money to support him and his wife and children.

11    I shared the link to the GoFundMe page on my Facebook profile, on 31 August 2024. It is not correct to say that I created a personal version of the crowd funder for my own Facebook page.

12    I was not aware before the applicant's interlocutory application that Ms Stanton had donated to the GoFundMe campaign.

13    Since Ms Stanton first appeared in this proceeding, I have had no communications with her, about any matter or thing, other than in open court.

4    It is necessary to make one qualification to the above. Ms Hendry's second affidavit in support of her recusal application, affirmed on 24 September 2025, annexes a printout of Ms Stanton's publicly available LinkedIn page which indicates that she worked at Blake Dawson Waldron from 1990 to 1992. I worked at Blake Dawson Waldron from 2006 to 2010. Until I saw Ms Hendry's second affidavit, I was not aware that Ms Stanton had ever worked there.

5    I have been a member of Facebook since 2007. As is mentioned in the Memorandum, Ms Stanton is 'friends' on Facebook with me. She is also 'friends' on Facebook with my wife. Ms Hendry's first affidavit, sworn on 18 July 2025, contains evidence that my wife 'liked' a post Ms Stanton made on 21 May 2022 and that Ms Stanton 'liked' a post my wife made on 1 August 2017. It also contains evidence that Ms Stanton was one of six people who 'liked' a profile picture that was publicly posted to Facebook when I changed it, on 12 June 2019.

6    Ms Hendry commenced this proceeding on 19 November 2023. Between that time and 19 February 2025, the State was represented by the State Solicitor's Office (SSO), and counsel representing it at all hearings was Andrew Shuy of the SSO.

7    One matter on which Ms Hendry relies on making the recusal application is referred to in the Memorandum, namely that, on 31 August 2024, Ms Stanton donated to a fundraiser for my brother-in-law. The circumstances of the fundraiser are described in the Memorandum. On 31 August 2024, I posted the following to my Facebook profile:

Hello all - please consider contributing to this cause if you can. [link provided] My brother in law … is going through a truly grievous medical emergency at the moment, and his family will appreciate any help you can give. Many thanks.

The link was to the GoFundMe campaign referred to in the Memorandum. On 30 August 2024, my wife posted the fundraiser to her Facebook page.

8    Ms Stanton has given evidence that she donated $500 to the GoFundMe campaign on 31 August 2024. In her affidavit affirmed 1 October 2025, she says that she knows my brother-in-law through attending Hollywood Senior High School for 3 years when she was in years 10, 11 and 12. They were in the same year, which Ms Stanton describes as a close-knit one. She has fond memories of my brother-in-law 'as a person who was kind, quick-witted and funny, and a much-loved member of the year group'.

9    According to Ms Stanton's affidavit, it is possible that she learned of my brother-in-law's illness through my Facebook post of 31 August 2024. She infers that to be a possibility because her records of the donation transaction show that it occurred on the same date. However Ms Stanton has no actual recollection of learning of the illness from my Facebook page. She does recall seeing that another person who was in the same year at Hollywood Senior High School had organised a GoFundMe campaign for my brother-in-law. The person she mentions is one of the two others, along with my wife, who organised the fundraiser as mentioned in the Memorandum.

10    Ms Hendry's first affidavit says that I created a 'personal version' of the fundraiser. That is not correct: it was created by others and I posted a link to it on my Facebook profile.

11    Ms Stanton did not make the donation anonymously, so anyone viewing the GoFundMe page could see that she had made the donation (along with a large number of other people). As stated in the Memorandum, however, I was not aware of the donation until Ms Hendry filed the recusal application.

12    On 19 February 2025, Minter Ellison filed a notice of acting on behalf of the State, in place of the SSO. The SSO retained a limited role in connection with a criminal prosecution which has since been discontinued, which led to a stay application that is about to be mentioned.

13    Ms Stanton first appeared as counsel in the matter at a mention hearing on 30 April 2025.

14    Ms Hendry relies on the following exchange between me and Ms Stanton, which took place at a case management hearing before me on 2 July 2025:

MS STANTON: We have managed - your Honour might recall that Mr Russell SC will be representing the State in relation to the stay application, and he has a separate SSO instructor. And we have managed to get - - -

HIS HONOUR: Sorry. I actually didn't recall that. Can you explain - of course, who represents the State is a matter for the State. But can you explain why there's separate representation?

MS STANTON: Because Mr Russell is counsel for the State in the WorkSafe prosecution, which is the reason for the State's application for a stay. So he will appear in relation to that application, separately instructed to myself.

HIS HONOUR: I'm not sure that has ever been brought to my attention, but I might be wrong.

MS STANTON: I did mention it to your Honour previously. I may not have named him. But in any event, he would - - -

HIS HONOUR: Well, that - all right. Sorry. Again, obviously, I'm not trying to contradict you.

MS STANTON: No, no. It's neither here nor there.

HIS HONOUR: I was just saying I didn't remember, but no doubt there was a lot going on when you mentioned it.

15    In fact, a review of the transcript of the earlier case management hearing of 30 April 2025 confirmed that Ms Stanton had not mentioned the State's separate representation at that hearing. Ms Hendry interprets this as indicating that Ms Stanton had engaged in some private communication with me pertaining to the case. But that is not so; I said in the excerpt above that I did not recall previously being told about Mr Russell's involvement because I had not, in fact, been told about it. As indicated above, I have had no communication with Ms Stanton since she became involved in this proceeding, other than in open court.

16    On 10 July 2025, Ms Hendry emailed my Chambers, copied to the other parties, about the above exchange. Minter Ellison, on behalf of the State, commented by email on 11 July 2025 but did not copy Ms Hendry into the email. On 17 July 2025, Minter Ellison wrote to my Chambers apologising that they had inadvertently omitted Ms Hendry from their email of 11 July 2025. On the same day, Ms Hendry says she had written to Minter Ellison requesting that the State provide an explanation of any personal or private communications and declare any conflicts of interest.

17    The recusal application supported by Ms Hendry's first affidavit was filed on 18 July 2025.

18    At a case management hearing on 17 December 2024, the State had foreshadowed an application to stay the entire proceeding on the basis of the criminal prosecution. The stay application was filed by the State on 29 April 2025. Ms Hendry ultimately did not oppose the stay, and I granted it on 15 August 2025: Hendry v State of Western Australia (No 2) [2025] FCA 956. Ms Hendry had initially indicated that she would be content for the recusal application to be stayed along with the rest of the proceeding. But she subsequently pressed for the recusal application to be determined before I determined an application for suppression of certain information which the State was pressing despite the stay. It therefore became clear that the recusal application would not be stayed, and so I issued the Memorandum on 11 September 2025. In any event, the criminal prosecution has been discontinued, so the stay no longer has effect.

19    Ms Hendry's second affidavit affirmed on 24 September 2025 adds evidence of the following matters on which she appears to rely:

(1)    My wife went to Hollywood Senior High School.

(2)    In years that appear to be 2014 to 2016, Ms Stanton was on the Ethics Committee of the Law Society of Western Australia and I was on the Education Committee of the Law Society.

(3)    After the recusal application was made, each of Ms Stanton and my wife 'locked' their Facebook profiles.

20    Another ground relied on in making the recusal application is an alleged disparity in procedural treatment. Ms Hendry's third affidavit affirmed 6 October 2025 gives evidence of instances where her documents have been rejected by Registry for 'technical' non-compliance, while documents filed by represented parties have been accepted quickly via the Court's 'auto accept' system. Annexed to her third affidavit is a table of documents filed by the parties since the commencement of the proceedings, noting the lodgement time, the time accepted for filing and whether Registry had been contacted. It is not necessary to set out the detail here; there are several instances where documents filed by Ms Hendry have been rejected or have required re-filing, and several instances where documents filed on behalf of a respondent have been accepted for filing even though they did not comply with orders previously made, for example as to filing deadlines or page limits.

21    Annexed to Ms Hendry's third affidavit is correspondence with the Court's Registry evidencing a number of occasions when Ms Hendry had expressed her concerns about the above matters. In oral submissions, Ms Hendry relied on the following response from Registry on 2 October 2025:

While we acknowledge your frustration, the Court is committed to affording fairness to all litigants. Our filing processes are in place to give effect to the overarching objectives of the Court, being to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. Should you believe our automated processes are contributing to any substantive injustice, those issues may be raised with the case managing judicial officer.

22    Ms Hendry contends that these concerns were raised with me, both in open court and in correspondence. Ms Hendry relies on an exchange that took place at a case management hearing on 17 December 2024. It is difficult to identify exactly what aspect of the exchange she relies on, so I will set the allegedly relevant part of the transcript out in full:

MS HENDRY: I think, obviously, there has been multiple factors in that. They have not responded or defended any part of the proceedings prior, and even in this jurisdiction. Unfortunately, with the - also the non-compliance with the orders of the court, the negligence of conferral to narrow what's in dispute. The explanation that the - I mean, the statement of claim was extensive and that was because they provided an opportunity to raise objections in July, which they wrote a 15-page letter raising those defences, objections and what they're forecasting to strike out prior.

And, also, I want to be on equal footing. I believe that I was to bring forth an application for a summary judgment at this early stage with some of the parties disengaging from narrowing what's in dispute and not conferring, I will not be on equal footing to bring that forth without defences or any form of reply on the file, and that may be incorrect, but that's from the case precedent that I've read where it may not be considered until the defence or response is filed.

And that is purely because it's - there has been a lack of conferral. Even from the last court orders that were set down, there was no conferral prior to the dates that were set by the court for those orders, to where they could have discussed amendments to that statement of claim or anything that they wish to pursue in that time before they wrote to chambers requesting an extension of time. So I believe they've had the opportunity to, at the end of the day, I believe, is to narrow what's in dispute. We are here because there is so much in dispute that hasn't been able to be narrowed. Obviously I've engaged privately in conferral. I can't discuss that because, obviously, they were in without prejudice discussions, and I just do believe it's - I don't know - I don't understand, first of all, there's a rule, 28 days from the 25 filing of a statement of claim, that they put defences and responses on a file and, obviously, then, the practice notes and the case management guidelines associated with why.

And unless they're going for a summary dismissal in regards to their strike out application, then one comes before the other. Defences will eliminate, I believe, a lot of what's in dispute with admissions, and, also, if not, I also have the equal footing to bring forth from what I believe is becoming, potentially, abuse of the process with some of the respondents not responding at all. Not complying with orders of the courts, and also not complying with orders to confer. So that's my explanation of why I believe any ..... or a response, and even the minute that was sent through by the second respondent's lawyer yesterday stated that if they are ordered to file a defence response, they will then further be moved into mediation as such associated. So I do believe it will at least narrow what's in dispute because, right now, I don't know because they're unable to communicate with me pertaining to that, and that's why conferral is ordered.

And I don't understand how they aren't able to be forced to comply with court orders. And I do get concerned that if I wasn't to comply with court orders, then things would be very different, but I encourage it. I ask them to confer. I ask them to narrow what's in dispute, and they're late, or they don't.

HIS HONOUR: Well, I don't accept any suggestion that the court would treat non-compliance by one party as being different from non-compliance by another party. And another point I will make is that if any consequences for non-compliance are being sought, then, as I've said before, the fact of non-compliance needs to be established by evidence in the usual way, that is by way of affidavits, and we don't have any affidavits establishing that there has or hasn't been compliance with the conferral orders. Having said all that, on the face of things, an order requiring an application - any application for strikeout or summary judgment had been made and that was required, I think, by 11 December and, obviously, that hasn't happened and isn't happening, and now the respondents are seeking an extension. So it's for them to persuade me why an extension should be granted, and I'm yet to be persuaded because I've yet to hear from them. So what all that adds up to is, I hear what you're saying in general terms, but I just want to be focused on what we need to do to move this matter forward because I'm concerned that, for various reasons, I think we're over a year in, and we don't have defences, and that is a concern to me.

23    Ms Hendry also relies on comments she made at a case management hearing on 30 July 2025:

I mean, the general lack of conferral, the no minutes that were provided yesterday. I mean, I can go on and on and on about, 'Where is the respect for the court, and where are respect for the parties that are here in litigation?' Minter Ellison have not engaged in conferral, and hence why we have multiple applications on foot, and it's not because they should be. And that is because, purely, they don't answer their emails or respond in a timely manner or at all. So I'm actually, yes, disappointed and disgusted, actually. I'm a self-representing litigant, and at least, I try my best to have respect for this court and the processes that we are asked to adhere to. And if I don't, within minutes, within a day, I get told, I get my head pulled in.

So I don't know at what stage are they okay not to upload minutes by the correct time, but to make inadvertent, ranting emails at 3 o'clock in the afternoon for a hearing today with a position that they've never put forth before. But - yes. So, yes, we're talking about the conduct of the matter and why we're here. And why am I even bringing this up? I do believe there needs to be some restrictive - I don't know what it's going to be. I mean, we're talking about Minter Ellison, so whether or not orders will be made anyway is a questionable practice, but it - yes. And I'm sorry that it has made me angry.

The parties' submissions

24    Ms Hendry filed an outline of written submissions on 24 September 2025. In it she advances the following matters as giving rise to a reasonable apprehension of bias on my part:

(1)    Ms Hendry says she observed that Ms Stanton and I 'appeared to share a close personal connection, identified by communications and interactions beyond those ordinarily expected between a judge and counsel'. The only alleged instance of this she gives is the exchange at the case management hearing of 2 July 2025 which is set out above at [14].

(2)    Ms Hendry describes the relationship between me and Ms Stanton as 'close and ongoing' and 'significant'. This seems to be based on the social interactions described in the Memorandum, as well as the 'social media friendships' between Ms Stanton and me and Ms Stanton and my wife. She describes them as '[c]lose, ongoing social media connections (friendship) between the judge and counsel, especially with further familial and professional overlap' which 'create an appearance of a personal relationship beyond normal professional boundaries'.

(3)    Ms Hendry also makes reference in general terms to case management decisions I have made. I gather that she is unhappy with those decisions and considers that they indicate bias. But she does not mention any specific decisions.

(4)    Ms Hendry submits that Ms Stanton and I 'have a direct financial interest in the case' and refers to 'the receipt of money from one of the parties involved' suggesting 'a potential bias or "quid pro quo", which is unacceptable'. She describes the GoFundMe as my 'personal fundraiser'. She says that Ms Stanton and I have 'financial interests in one another'. Seemingly in relation to my decision to post a link to the campaign on my Facebook profile, she says:

Justice Jackson knew the Barrister Fiona Stanton, was his long-term acquaintance, and friend on Facebook, Justice Jackson was also aware, that Fiona Stanton was 'Friends', with his wife … on 'Facebook, giving rise to the knowledge, that Fiona Stanton, was likely to contribute financially to his personal interests.

(5)    In oral submissions at the hearing on 9 October 2025, Ms Hendry went so far as to say that:

if a judge promotes or financially benefits from a direct personal fundraiser, as naturally would occur, any benefit from friends on Facebook to a family member would relinquish the own contribution of the judge's family to that family member

When I asked for clarification of what she meant, Ms Hendry said:

By promoting or requesting the public or friends on your social media to donate would relinquish any direct family financial contribution you would have to make to your own family.

I understand that by the use of the word 'relinquish' Ms Hendry means that a donation from a third party would relieve me of (or reduce) the need for me to donate myself. I interpret this as a submission that a fair-minded observer would consider that it was possible that I would view any financial contribution to the fundraiser as financially beneficial to me because it would partially or completely relieve me from the burden of providing personal financial support to my brother-in-law and his family.

(6)    Ms Hendry submits that what she characterises as 'late disclosure' in the Memorandum 'materially strengthens apprehended bias claims' because 'it suggests reluctance to be transparent'. The matters she says should have been disclosed are 'the financial contribution by Fiona Stanton and the established social media connection with Justice Jackson'. In this regard I accept that the timing and content of a judge's disclosure of relevant matters can be a circumstance relevant to apprehended bias: see S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 375 (Kirby P, in dissent); Reynolds v Rayney [2023] WASCA 144 at [67].

25    In a further outline of written submissions filed on 7 October 2025, Ms Hendry addresses the 'differential treatment' ground for her recusal application. She submits that she 'has experienced significant disadvantage due to the lack of access to certain procedural facilities (such as auto-acceptance of e-lodged documents) and the requirement to personally monitor and raise breaches of court orders by represented parties'. The auto-accept function is available to law firms seeking to file documents through the Court's eLodgment system. She relies on an instance (advanced during her oral submissions) where, she said, she was required to show a proposed amended statement of claim to the respondents before it was accepted for filing. Broadly, Ms Hendry submits that the 'ongoing failure' to enforce the Court's rules and orders after the issue has been brought to the Court's attention gives rise to a reasonable apprehension of bias. She complains that this amounts to a breach of procedural fairness at common law and under art 14(1) of the International Covenant on Civil and Political Rights (opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)).

26    Ms Hendry's submissions make further allegations about my conduct, to the effect that I have abused my judicial office for financial gain. She asserts that a failure to disclose my relationship with Ms Stanton means that all orders I made prior to disclosure should be reconsidered. She also makes various allegations of misconduct against Ms Stanton. However as far as reasonable apprehension of bias is concerned, these matters add nothing to the submissions about matters just described: see Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [67]-[72]; and Reynolds v Rayney at [66]. It is not necessary or appropriate to comment on them further here.

27    The State and the second respondent, Kerri Bishop, have also filed written submissions (the State's are signed by Ms Stanton). Each opposes recusal. The State submits that the matters disclosed in the Memorandum are 'almost entirely professional interactions' which are 'too fleeting, cursory and remote to the present time' to support a conclusion that I might not decide the proceeding on its merits. It says that the nature of the association did not give rise to any duty of disclosure. The State submits that there was nothing inappropriate about my associating myself with the fundraiser for my brother-in-law, and points out that the contribution Ms Stanton made was before she was involved in the proceeding.

28    Ms Bishop submits that 'it is to be expected that judges will have personal and professional associations with many counsel appearing before them, and ordinarily social or other interactions between a barrister who becomes a judge and other barristers appearing before that judge do not give rise to a reasonable apprehension of bias'. She submits that my prior relationship with Ms Stanton 'is neither substantial nor close'. She further submits that the donation by Ms Stanton to my brother-in-law, arising from her relationship with him, does not give rise to a reasonable apprehension of bias. That is so in circumstances where the donation was made before Ms Stanton was briefed in the proceeding.

Principles

29    It has been suggested that it may appear anomalous that applications for recusal such as this one are resolved, in the first instance, by the judge said to be affected by apprehended bias: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 at 218-219 (Merkel J). But it is the ordinary, and correct, practice of the Australian courts for a judge at first instance to hear and determine any allegations of bias raised against him or her: Ebner at [74]. While the different judgments in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 varied as to how a Full Court should deal with allegations against one of its number, all affirmed this practice for judges sitting alone (save for Gleeson J, who preferred not to address the question): see [30] (Kiefel CJ and Gageler J), [88]-[89] (Gordon J), [123]-[130] (Edelman J), [193] (Steward J), [271] (Gleeson J), [305]-[342] (Jagot J).

The criterion as to apprehended bias

30    The criterion to be applied in cases of alleged apprehended bias is whether 'a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide': Ebner at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

31    'The question is one of possibility (real and not remote), not probability': Ebner at [7]. It is a question of law to be determined objectively, thus giving effect to the requirement that justice should both be done and be seen to be done: Ebner at [6]; Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ); QYFM at [68] (Gordon J), [282], [300], [340] (Jagot J); and see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). It does not involve a prediction of how the judge will in fact approach the matter, and no question as to the particular judge's thought processes, understanding or motivation arises: Ebner at [7]; Charisteas at [18].

32    In Webb v The Queen (1994) 181 CLR 41 at 74, Deanne J identified four distinct, though overlapping categories of cases involving disqualification for apprehended bias: interest, conduct, association and extraneous information. Those categories are not comprehensive and their utility will depend upon the context in which they are employed: Ebner at [24] (Gleeson CJ. McHugh, Gummow and Hayne JJ).

33    Each case must be considered by reference to the totality of its own circumstances: QYFM at [50] (Kiefel CJ and Gageler J). See also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371, where Dawson J also said that a conclusion of a reasonable basis for supposing bias must be firmly established and should not be reached lightly. A judge who has been allocated to hear a case in accordance with the usual practice of the jurisdiction in which they sit should not take themselves off the case without good reason. They should not disqualify themselves on the basis of apprehended bias unless substantial grounds are established: Bienstein v Bienstein [2003] HCA 7 at [36] (McHugh, Kirby and Callinan JJ). In Re JRL at 352 Mason J said:

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.

34    Thus in Ebner at [19] the plurality said:

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

See also QYFM at [277] (Jagot J).

The hypothetical fair-minded observer

35    Applying the Ebner criterion requires the following steps:

(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

QYFM at [38] (Kiefel CJ and Gageler J), citing Charisteas at [11].

36    These matters are to be identified and assessed on the basis of the facts proved, together with such information as is provided by the judge: see S & M Motor Repairs at 373-374. The court is assessing possibilities in the context of the objective facts disclosed by the material in evidence: Webb at 71 (Deane J). The knowledge to be attributed to the fair-minded observer 'is a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court': Webb at 73. That is, the observer has attributed to them 'knowledge of the actual circumstances of the case': Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87 (Mason CJ and Brennan J). While these things were said in the context of appeals, I see no reason to take any different approach at first instance; the facts on which any reasonable apprehension of bias is based must be established, by evidence or any disclosure by the judge.

37    In assessing the reasonableness of the apprehension at the third of the above steps, it is the court's view of the public's view that is determinative: Webb at 52 (Mason CJ and McHugh J). In QYFM, Kiefel CJ and Gageler J said (at [46]) that 'much depends on the characteristics to be attributed to the hypothetical fair-minded lay observer in applying that standard. The observer is to be placed in a contemporary setting. Uncritical attitudes of the past cannot be assumed to be those of the present'.

38    In Reynolds v Rayney at [28], the Court of Appeal of Western Australia attributed the following characteristics to the fair-minded adviser (footnotes removed):

[8]    The hypothetical observer is reasonable, not unduly suspicious and is fair-minded and informed. The hypothetical observer is attributed with a broad knowledge of the material objective facts. The hypothetical observer is presumed:

(a)    to be reasonable and not to make snap judgments;

(b)    to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial; and

(c)    to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case.

[9]    However, the hypothetical observer is aware of the reality that the judge is human and is cognisant of human frailty. The hypothetical observer understands that 'information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making'.

[10]    The hypothetical observer is not so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias.

39    As to the point about human frailty, in GetSwift Ltd v Webb [2021] FCAFC 26; (2021) 283 FCR 328 at [46], Middleton , McKerracher and Jagot JJ said:

the hypothetical observer would recognise that judges are human, not a 'passionless thinking machine' (CNY17 [v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76] at [28] (Kiefel CJ and Gageler J) quoting Re J P Linahan Inc (1943) 138 F 2d 650 at 653) or robot just assessing information.

40    As to the disposition of the hypothetical observer, see also Farkas v Thomason [2020] WASC 67 at [74] (Smith J): 'The suspicions of the ultra-sensitive, paranoid or cynical must not be allowed to determine the legal standard of impartiality. A vague sense of unease or disquiet is not enough'.

Social media 'friendship'

41    There is no Australian superior court authority specific to the question of when an association with a relevant person on social media will be give rise to a reasonable apprehension of bias. It is necessary to turn to other sources as to how the fair-minded observer would view such an association.

42    The Australasian Institute of Judicial Administration Incorporated's Guide to Judicial Conduct (3rd rev ed, 2023) contains a chapter providing guidelines for the use of social media by the judiciary. At page 43 it says:

There is no reason in principle to deny judges the use of social media. But a judge should be aware of the risks that go with the use of social media, and should act with care in light of these risks. As the Guide makes clear, at all times a judge is governed by the principles of, and must act in a manner that promotes public confidence in, judicial impartiality, independence and integrity …

43    It also cautions at page 44 that:

A judge must also be mindful of the persons with whom the judge has a connection through the use of social media. An established connection between the judge and an individual, or between the judge and a lawyer, might be problematic if the person or lawyer comes before the judge. It may be difficult for a judge to keep track of all of the persons with whom the judge has had contact or connection using electronic media, but the record of that contact will always exist. To an outsider, the contact may seem significant, even though the judge has no memory of it.

44    Federal Court of Australia Guidelines about using electronic social media, (which were apparently approved for internal Court purposes in December 2013 but never published), state that while a judge may use social media, they should avoid any conduct that may 'create a perception of impropriety or bias' and 'have regard to the guiding principles of impartiality, judicial independence, and integrity and personal behaviour' set out in the Guide to Judicial Conduct. The Guidelines advise that:

Electronic social media networking sites require a person to affirmatively join and accept or reject connection with particular persons. Facebook has 'friends' LinkedIn has 'connections' and Twitter has 'followers'.

Judges must be very thoughtful in their interactions with others when using social media. Judges cannot presume that social media sites are secure. When setting up a social media account the default security settings will usually be low and must be changed to ensure a higher level of security. Even so, Judges must assume that comments posted to a social media site will not remain within the circle of the judge's connections. Comments, images, or profile information might prove embarrassing, both personally or to the Court, if publicly revealed.

Social media connections with the judge may raise perceptions of possible bias if those connections include members of the legal profession, particularly where they belong to a law firm that is well known for appearing in proceedings before the Court. This may also raise possible disclosure or disqualification issues. If a judge has a social media connection with a lawyer or party who is either appearing or will soon appear before him or her, the judge should consider whether the connection should be disclosed either prior to or at commencement of the matter.

45    Turning overseas, the Canadian Judicial Council's Consultation on Ethical Principles for Judges (2019) stated that 73% of the approximately 941 respondents to their survey (which consisted of judicial officers, lawyers, academics and the public) agreed with the statement that 'Judges should not "friend" any lawyer who could appear before their court' (p 8). The respondents who disagreed, felt that the statement was 'ignorant' as friendships exist between those working in the same field (at p 8). It was also indicated by some of the survey respondents that social media relationships were less personal than in person relationships.

46    However in relation to the fast developing field of social media, care must be taken not to uncritically adopt opinions expressed in the past, even the relatively near past. In the Ethical Principles for Judges published by the Canadian Judicial Council in 2021, it is said:

2.A.4    After appointment, judges are not required to withdraw from the world. They may lead a normal life in the community, while retaining a sense of the dignity of judicial office and realizing that the public expects virtually irreproachable conduct from judges.

2.A.5    A judge's conduct, in and out of court, may be the subject of public scrutiny and comment. At the same time, judges have private lives and are entitled to enjoy, as much as possible, the rights and freedoms generally available to all. Nevertheless, judges accept some restrictions on their activities - even activities that would not elicit adverse notice if carried out by other members of the community. For example, judges should exercise caution in their use of social media. Judges should strive to strike a balance between the expectations of judicial office and their personal lives.

47    There is thus no blanket proscription of social media for judges. Specific to associations on social media, the Ethical Principles say (at 5.B.17):

Judges' communications and associations with others are commonly used as a basis for claims of lack of impartiality. Judges should be vigilant in minimizing reasonable apprehensions of bias arising from these communications and associations. This is all the more important, and difficult, in the age of social media. Judges who choose to use social media should exercise great caution in their communications and associations within these networks, including expressions of support or disapproval. This includes judges informing themselves about the functioning, and the application, of security and privacy settings appropriate to their use of social media.

48    The New Zealand Guidelines for Judicial Conduct 2019 (Courts of New Zealand, 2019) say similarly that (para 88):

Care is needed to avoid any compromise to judicial independence or impartiality through expressions of opinion or online activities. This could include links through social media such as for example friending a litigant that may give rise to conflicts of interest or a perception of bias.

49    The Guide to Judicial Conduct (2023) published by the Judges' Council of England and Wales says that 'the use of social networking is a matter of personal choice' and like other social activities needs to be assessed 'in the light of judicial office holders' duty to maintain the dignity of the office and not to permit associations which may affect adversely their ability to discharge their duties' (at 21).

50    A legal academic who has written several times in this area, Dr Marilyn Bromberg, notes that American guidelines adopt varied opinions on the subject: Bromberg M, 'Thank You for Being a Friend? Examining Social Media Friendship between Judicial Officers and Lawyers Post Charisteas v Charisteas' (2022) 32 Journal of Judicial Administration 14, p 21. The Florida, Oklahoma and Massachusetts judicial ethics bodies forbid judicial officers from being friends on social media with any lawyer who could appear before them, whereas the advisory opinions from New York, Maryland and New Mexico are that a social media friendship between a judicial officer and a lawyer is insufficient for a judicial officer to disqualify themselves without any other supporting facts: Bromberg at p 21.

51    There is, however, American case law on the subject. In Domville v State of Florida 103 So3d 184 (Fla 4th DCA 2012) the Florida District Court of Appeal concluded that a social media friendship 'reasonably conveys to others the impression that these lawyer "friends" are in a special position to influence the judge' (at 2). The 'strict approach' of the Florida Judicial Ethics Advisory Committee was instructive in this conclusion.

52    But five years later, this was disapproved: Law Offıces of Herssein and Herssein PA v United Services Automobile Assn 229 So3d 408 (Fla 2017). In delivering the opinion of the majority of the Court, Canady J noted that Facebook 'friendships' regularly involve strangers (at 20). They should not be 'singled out and subjected to a per se rule of disqualification' (at 20). Even 'traditional' (non-Facebook) friendships exist on a 'broad spectrum' and (at 8) (citations removed):

the mere existence of a friendship between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are friends of an indeterminate nature. It is for this reason that Florida courts - including this Court - have long recognized the general principle of law that an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.

53    The Court (at 13; citations removed) recognised that a Facebook 'friendship' is not:

the functional equivalent of traditional 'friendship'. The establishment of a Facebook 'friendship' does not objectively signal the existence of the affection and esteem involved in a traditional 'friendship'. Today it is commonly understood that Facebook 'friendship' exists on an even broader spectrum than traditional 'friendship'. Traditional 'friendship' varies in degree from greatest intimacy to casual acquaintance; Facebook 'friendship' varies in degree from greatest intimacy to 'virtual stranger' or 'complete stranger'. So it is regularly the case that Facebook 'friendships' are more casual and less permanent than traditional friendships.

54    There are differences between the social and ethical norms of the American legal professions and those of the Australian profession, which means that caution is warranted before accepting these statements as wholly applicable here. Nevertheless, it will be seen below that Canady J's description of the relevance of 'traditional' friendship between judges and attorneys to allegations of bias is similar to the treatment of that subject in Australian case law.

55    This difference between traditional friendships and Facebook 'friendships' is reflected in the observation of Dr Bromberg that social media friends 'may not have trust, respect or affection for each other': Bromberg at p 18. Dr Bromberg notes that 'Social media is ubiquitous. Over 3.6 billion people use it worldwide, including about 80% of Australians': at p 16. Further at page 17 (footnotes removed):

It is already accepted that judicial officers do - and should be able to - use social media. Many credible sources in Australia and overseas support this. The Judicial College of Victoria gave an informal survey to its members about their social media use. Some of the survey participants stated that, while they use social media regularly, they are cautious about the posts they make and about which friend requests they accept. An increasing number of judicial officers will use social media for personal and professional reasons over time, and therefore it is likely that more judicial officers will be social media friends with the lawyers who appear before them.

56    As to social media friendships, Dr Bromberg observes that while some judicial officers may choose to avoid social media friendships with lawyers altogether (at p 23):

it is unrealistic to expect it of all judicial officers. Social media is here to stay. Judicial officers and lawyers may have been friends on social media before one became a judicial officer and it may be impractical to ask them to stop their social media friendship as a result. Further, upon becoming a judicial officer, they might forget to remove lawyers as their friends on social media. People may also enter and exit the legal profession during their careers, which could make ensuring that a judicial officer is not social media friends with a lawyer difficult.

57    I respectfully agree with these observations, and with the quotes from Herssein set out above. The nature and content of a Facebook 'friendship' is not determined by the fact that it is on Facebook. Blanket rules about disclosure of Facebook friendships with counsel, as may have been suggested in earlier sources, do not apply. It is notorious that one's Facebook 'friends' can include relationships as diverse as family, close friends, distant acquaintances or even strangers. It follows that the fact that someone is a Facebook 'friend' does not determine the nature, closeness or extent of the friendship. Nor should weight necessarily be put on the fact that a person has 'liked' a post on Facebook, something which it takes only a tap or a click to do. In my view, the fact of a Facebook 'friendship' is a fact to be taken into account like any other in evaluating the closeness or otherwise of a relationship between a judge and a party, witness or legal representative. It is an evaluation to be conducted on the basis of all the relevant objective facts of the case.

Associations between judges and lawyers more generally

58    The Guide to Judicial Conduct describes 'social friendliness' between judicial officers and members of the profession as follows (at p 36):

There is a long-standing tradition of association between bench and bar, both in bar common rooms and on more formal occasions such as bar dinners or sporting activities. Many judges attend Law Society functions by invitation. The only caveat to maintaining a level of social friendliness of this nature, one dictated by common sense, is to avoid direct association with members of the profession who are engaged in current or pending cases before the judge.

59    Consistently with this, the High Court has said that while it may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections, such relationships must be subject to the basic judicial practice that once a case is underway or about to get underway, there should be no communication between the judge and any legal advisers of a party, other than in the presence of (or with the prior consent of) the other party, until the conclusion of the matter: see Charisteas at [13], [22].

60    An association with a party's lawyer may disqualify the judge from sitting, but in each case the question must be how the existence of the association might be thought, by the reasonable observer, possibly to divert the judge from deciding the case on the merits; the bare identification of an association will not be enough: Ebner at [30].

61    Decided cases in situations where judges have associations with lawyers appearing before them are generally accommodating of the reality, and inevitability, that people in the same profession in the same city may well form friendships, professional bonds and even financial connections.

62    In Aussie Airlines, Merkel J ascertained shortly before a hearing that senior counsel briefed to appear for two of the parties was a person with whom his Honour had a longstanding personal, professional and financial association. Their association included: 'being signatories to each others bank accounts and directors of each other's family trust companies', albeit these arrangements were terminated upon his Honour taking judicial appointment. They had also shared a small set of barristers' chambers for 12-13 years, with consequent (unresolved) joint financial interests, as well as joint interests in other real property investments. Merkel J described the relationship as a 'longstanding and close personal friendship' (at 231).

63    In Aussie Airlines at 222, Merkel J observed that the 'very system of judicial appointment from the senior ranks of the profession means that such prior associations are inevitable'. His Honour also suggested that situations such as the one that concerned him 'will be far from unusual': at 220. At 230, Merkel J considered in this context that the fair-minded observer could be presumed to have the general knowledge that:

(a)    when barristers act on a client's behalf they do so in a professional capacity as their client's legal advocate selected to act in the case for that purpose. Any barrister so selected could have been briefed to fulfil the same task for the opposite side;

(b)    in accepting a brief to act for a client in a particular commercial case, the barrister does not become part of or identified with the client and has no direct or indirect financial interest in the outcome of the case;

(c)    the barrister acts as such as a member of an independent Bar. The barrister is instructed by a solicitor or a firm of solicitors to present the client's case and in doing so is bound by a professional code of ethics ensuring that the barrister's conduct is in accordance with his or her professional standards;

(d)    it is common place for barristers who are close associates, or friends and who may even be from the same set of chambers, to fight on opposite sides of a case without compromising their professional duties to act in the interests of their clients;

(e)    as judges are usually appointed from the senior ranks of the profession, particularly the Bar, it is likely that they will be well acquainted, and have formed close associations, with senior counsel appearing before them. It is also likely that they will have personal and professional associations with many of the counsel appearing before them.

64    In determining the recusal application, Merkel J noted that the applicant had conceded that the 'longstanding and close personal friendship' was not enough, by itself, to require recusal. In that regard his Honour emphasised (at 231):

the importance and substance of the distinction between a close friendship between adjudicator and litigant and adjudicator and counsel. In the former situation there may, by reason of the perceived prospect of favour, be a cogent and rational link between the association and its capacity to influence the decision to be made.

In the latter situation there is no such link as the observer must be taken to have understood the professional role of counsel which I have described in general terms above. Once that is appreciated there is no cogent or rational link between the association and any capacity it has to influence the decision in the case.

65    Merkel J reached a similar conclusion on the same basis in relation to the longstanding professional association. As for the common or joint investments, they did not make the judge 'beholden' to senior counsel, as he might have been had he been a debtor of or financially assisted by the barrister and there were significant sums payable at call. Merkel J's conclusion was that given the fair-minded observer's 'understanding of the role of counsel in a case, there is no proper basis for concluding that I might not bring an impartial and unprejudiced mind to the resolution of the two questions I have before me': at 232.

66    In Emanuele v Emanuel Investment Pty Ltd (1997) 139 FLR 36, a Master presiding over examinations in a company liquidation was seen to have a drink at a wine bar with senior counsel conducting the examinations on behalf of the liquidator. This occurred while the examinations were ongoing. In the course of dismissing an appeal from a decision that the Master's rulings were not affected by apprehended bias, Olsson J (Matheson J agreeing) said (at 45):

The days are long past when it was the expectation that, on appointment to judicial office, a Judge was expected to withdraw from social relationships with his or her former professional friends and, for that matter, the community at large; and live the life of someone substantially removed from the general community. Indeed, in the contemporary scene, members of the judiciary tend, publicly, to be criticised if they seek to do so. It is, rightly, perceived that such a course would be a distinct disadvantage in discharging the judicial function, because of the cultural isolation from community norms and mores, which would result …

67    I interpolate that while these things were said before the rise of social media, they do apply to it. In the monograph Judicial Ethics in Australia it is said that 'a capacity to understand community attitudes and the practicalities of everyday life is essential to the dispensation of justice': The Hon James Thomas AM, Judicial Ethics in Australia (3rd ed, LexisNexis Butterworths, 2009) p 110. The ubiquity of social media means that participating in it is a fact of life in a community, and judges and barristers should not be criticised for doing so. Issues pertaining to social media use arise with increasing frequency in criminal and civil proceedings, and participating in social media may be helpful in understanding them, and so discharging the judicial function: see e.g. the cases cited in Bathurst CJ, TF, 'Tweeters, posters and grammers beware : discovery and social media evidence' (2017) 29(2) Judicial Officers Bulletin 11. Of course, the way a judge participates in social media must be appropriate; but that is a different question.

68    Returning to Olsson J's judgment in Emanuele, his Honour also accepted a number of submissions put to him about social situations such as the one in issue. These included (at 46):

21.    No informed bystander could reasonably conclude that a friendship (whether of long or short duration) between judge and counsel gives reason to apprehend the possibility of bias. If a perception of friendliness is the criteria for an apprehension of bias, then it would matter not whether it was based on an observation of contact contemporaneous with an appearance before the judge, or over an extended period of time in the past - indeed, the latter may be the more convincing if one was seeking to establish that such friendship will lead to bias. It has never been put until now that friendship with counsel debars a judge from hearing a case, or counsel from appearing (save in one bizarre case where sexual relations between the judge and the solicitor for a party was thought too much - In the Marriage of Kennedy and Cahill (1995) 19 Fam LR 173). The observations of Priestly JA in Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR [272] at 276 (with Hope and Glass JJA agreeing) are pertinent:

'He [Powell J in his judgment] there accurately referred to the long-established method of appointment of judges in New South Wales (and Australia and England for that matter). That method of appointment means that built into the legal system is public knowledge and long acceptance of the fact that judges will often know to a greater or less degree the counsel and solicitors who appear before them.'

22.    That may be contrasted with the situation where the friendship is between judge and party, which has a different result. In such a case, the judge declares the friendship, and if there is objection (or perhaps on the judge's own motion), a different judge hears the case. It is submitted that the reason is that the law, and the public, perceive a friendship between judge and counsel as not likely to lead to bias. They are engaged in the discharge of their profession, and no rational person would conclude that personal regard of one for the other would lead to a departure from their duty. On the other hand, should the friendship be between judge and party, then it is perceived as rendering it difficult for the judge to make findings adverse to the party on issues of credibility, or culpability.

69    Olsson J also accepted a submission to the effect that the matters set out in [63] above by Merkel J in Aussie Airlines should be attributed to the fair-minded observer (at 47-48). In joining in the result, Williams J also adopted as correct the principles set out in Aussie Airlines.

70    In Bienstein, the appellant submitted that Hayne J of the High Court was affected by apprehended bias because his Honour had practised as a barrister in Victoria and the applications before him involved allegations about a court and judicial officers in Melbourne. In the course of dismissing the appeal, McHugh, Kirby and Callinan JJ held (at [33]):

Relevantly to the present matter, a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice. In Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78, this court held that even a prior relationship between a legal adviser and client does not generally disqualify the legal adviser, on becoming a member of a court or tribunal, from sitting in proceedings in which the client is a party. In the normal case (of which this is an illustration), it is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise. Similarly, ordinarily interaction (social or otherwise) between a practising lawyer who becomes a judge and other members of the legal community in that city does not itself give rise to an apprehension of bias if one of those members is involved in proceedings before the judge. Cases might arise where the conventional rules that govern such professional associations have been exceeded and require the judge to disqualify himself or herself. But Hayne J did not err in refusing to disqualify himself on the ground relied on by Mrs Bienstein.

71    Reynolds v Rayney was an appeal where the judge deciding the case at first instance had previously been employed by and then in partnership with counsel for one of the parties, for some 11 years, although that working relationship had ended 15 years before the trial. The Court of Appeal held at [80] (footnotes removed):

Judges will often know the counsel and solicitors who appear before them - a matter which the fair-minded lay observer is taken to be aware of given that judges are appointed from the senior ranks of the legal profession. In that respect it has been regarded as inevitable that, within a court, some judges will have personal or professional associations with the counsel who appear in the court. That, without more, has not been regarded as sufficient to give rise to a reasonable apprehension of bias. A fair-minded lay observer with an appreciation of the legal system and ordinary judicial practice would recognise the ability to put aside such associations while discharging public responsibilities - this being a capacity generally expected of judges and counsel.

72    And, similarly to the distinction drawn in Aussie Airlines, their Honours held (citing Aussie Airlines):

[85]    This is not a case where [counsel for the plaintiff] Mr Bennett was a party to the proceedings. Nor was the primary judge to be called on to evaluate Mr Bennett's credibility or reliability as a witness. Mr Bennett was appearing as counsel for Mr Rayney. The fair-minded lay observer is taken to be aware that when counsel acts on a client's behalf he or she does so in a professional capacity as the client's legal advocate - counsel presents the client's case and in doing so is bound by professional standards and ethics.

[86]    In these respects the position and role of counsel is qualitatively different to that of other persons interested or involved in curial proceedings. To so state is not, impermissibly, to imbue the fair-minded lay observer with professional self-appreciation as if the hypothetical observer was a member of the judiciary or the legal profession. We acknowledge that the fair-minded lay observer is a member of the public served by the courts. But the fair-minded lay observer is a construct that is applied to the real world of actual litigation. In the real world of actual litigation the function performed by counsel - and the differences between their position and role and that of others interested or involved in proceedings before the court - would be obvious to a reasonable and informed member of the public.

73    Their Honours' conclusion (at [87]) was that a fair-minded lay observer would not 'reasonably apprehend that the prior association might affect the primary judge's determination of the defamation case on its merits in that manner' (emphasis in original). And so, at [88]:

Three things, viewed objectively from the perspective of the fair-minded lay observer, are decisive in reaching this conclusion. First, there was no continuing association between the primary judge and Mr Bennett. The previous working relationship was historic in nature. The absence of any continuing significance of the previous working relationship was manifest from the circumstance that there had been no professional or social relationship between Mr Bennett and the primary judge for 15 years. Second, Mr Bennett's role was confined to that of counsel. Judges are of course commonly assisted by counsel. But judges are expected to, and do, carefully scrutinise and form their own views on the case before them. Anything less would be an abrogation of the judicial oath or affirmation and the judicial function. Third, any residual concern as to the possibility that the previous working relationship might deflect the primary judge from a neutral evaluation of the merits of the case may be put aside when it is recalled that, with a professional judge, his or her training, tradition and oath or affirmation require that he or she disregard the irrelevant, the immaterial and the prejudicial. Any view that the primary judge held about Mr Bennett was plainly irrelevant and immaterial to the determination of the defamation action.

Consideration

The facts that would be apparent to the fair-minded observer

74    Focussing first on the grounds for apprehended bias that are said to arise out of my association with Ms Stanton, it is necessary to start by identifying the facts to which the fair-minded observer would have regard, as established by evidence or contained in the Memorandum. Since the Ebner criterion is objective, I will pay no regard to evidence about subjectively experienced states of mind, or my knowledge of my own thought processes.

75    The material objective facts to be collected from the matters set out above are:

(1)    Ms Stanton has known my brother-in-law since they went to high school together. It can be inferred (as is the case) that this was a long time ago (they went to high school in the 1980s). They were in the same year group. They were on friendly terms.

(2)    My wife went to the same high school (in a different year group).

(3)    Ms Stanton and I have been acquainted with each other since the late 1980s, through Law School and as members of the Perth legal profession. We never worked on a matter together, and while we both worked at Blake Dawson Waldron, we did so at different times, separated by some 14 years.

(4)    From 2014 to 2016, Ms Stanton was on the Ethics Committee of the Law Society of Western Australia and I was on the Education Committee.

(5)    Ms Stanton and I have had social contact from time to time, but it has been confined to professional social gatherings or incidental to other professional events, such as the Australian Bar Association Essential Trial Advocacy course mentioned in the Memorandum.

(6)    I have been on Facebook since 2007, and as at the time of the recusal application I had 187 Facebook 'friends'. It can be inferred, as is the case, that several of those are members of the Perth legal profession.

(7)    Ms Stanton and I have been Facebook friends since March 2018. She is also Facebook friends with my wife and my brother-in-law. Ms Stanton has given a 'like' to one publicly available post I made shortly after being appointed as judge. On two occasions, she and my wife have given likes to each other's posts from time to time.

(8)    Since my appointment to the Federal Court some 6½ years ago, Ms Stanton and I may have had brief social contact at professional gatherings, but we have otherwise had no contact except in the capacities of judge and counsel in open court.

(9)    This proceeding was commenced in November 2023 and I have been the docket judge throughout. Ms Hendry has not had legal representation at any time. There have been a large number of interlocutory and case management issues to determine in the matter, and it is fair to say that many of those have been determined contrary to the outcome desired by Ms Hendry.

(10)    After the recusal application was made, Ms Stanton and my wife each altered settings on Facebook with the result that Ms Hendry was no longer able to view posts that had been previously visible to her.

(11)    In June 2024 my brother-in-law suffered a grievous medical catastrophe which disabled him from working (and it continues to do so).

(12)    In August 2024, on my personal Facebook profile, I posted a link to a fundraiser for my brother-in-law. The post was personal in nature and made no reference to my work or position as a judge.

(13)    At the same time, Ms Stanton made a donation of $500 to that fundraiser. It is unknown whether she did so as a result of seeing my post. The inference that she did is open because of the fact that she made the contribution on the same day that I posted the link. But the inference is not compelling, because that is when the fundraiser started, and no doubt people had begun to raise awareness of it through various channels. (The fact that Ms Stanton recalls seeing that another school friend had organised the fundraiser sheds no light on the question, since she could have seen that after clicking the link on my post and being taken to the GoFundMe page).

(14)    While the precise date on which Ms Stanton came to be briefed in this matter was not in evidence, the date of her first appearance makes it likely that the donation was made approximately six months before she was involved in this proceeding.

(15)    Ms Stanton did not make the donation anonymously. It is possible to see her as a contributor on the GoFundMe page. But there is no suggestion in the materials that she took any step to draw the fact of the contribution to my attention. I did not know about the donation until Ms Hendry made this application on 18 July 2025.

(16)    Ms Stanton and I have had no contact other than in the capacities of judge and counsel in open court since Ms Stanton's first appearance in this matter, in March of this year.

(17)    At a case management hearing on 17 December 2024, the State had foreshadowed making a stay application because of a criminal prosecution which was then pending. At a case management hearing on 2 July 2025, Ms Stanton incorrectly said that I had previously been informed about the State having separate representation in this proceeding in respect of the stay application.

(18)    Around the same time, a solicitor from Minter Ellison left Ms Hendry's email address off an email to my Chambers concerning an exchange at the case management hearing on 2 July 2025 in respect of the State's representation (see [14]-[16] above).

(19)    I did not provide any information about my acquaintance with Ms Stanton until the Memorandum of 11 September 2025.

The factors said to mean that I might decide the matter other than on the merits

76    What, then, are the factors which, Ms Hendry says, might lead me to determine this proceeding other than on its legal and factual merits? From her submissions, it appears that they are:

(1)    my personal relationship with Ms Stanton, along with the Facebook friendship between her and my wife;

(2)    unspecified case management decisions I have made adversely to Ms Hendry;

(3)    Ms Stanton's donation to a fundraiser for my brother-in-law, where I had shared a link to the fundraiser on my Facebook page; and

(4)    disparity in procedural treatment between Ms Hendry and the represented parties.

77    The first and third of these are capable of leading to disqualification by association, that being one of the categories of disqualification for apprehended bias laid out by Deane J in Webb. Ms Hendry also appears to contend that the third is a case of disqualification for pecuniary interest. The second and fourth factors seem to be asserted to give rise to disqualification by conduct.

78    One of these factors can be dealt with right away. Having made case management decisions adverse to a litigant does not by itself give rise to a reasonable apprehension of bias against that litigant: see Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 at [11]. Since Ms Hendry has not been specific about any such decisions, I will have no further regard to that factor.

The asserted logical connections

79    What logical connection does Ms Hendry articulate between the remaining three factors and the apprehended deviation from deciding the case on its merits? In relation to the personal relationship, presumably the apprehension is that I will think well of Ms Stanton, and so will be inclined to find in favour of her client. In relation to the donation, the logical connection is not clear. To the extent that Ms Hendry says that I have a financial interest in the case, or that Ms Stanton and I somehow have a financial interest in each other, she misstates the position. Ms Stanton and I have no financial ties whatsoever. The donation has been made, and there is no rational basis to suggest that deciding the case in the State's favour will lead to any financial benefit for me.

80    Doing my best to understand, I gather that the apprehension is that the donation will give rise to a 'quid pro quo' whereby in return for it, I will decide the proceeding, or parts of it, in favour of Ms Stanton's client. As said above, it was also alleged by Ms Hendry during oral submissions that donation somehow relieved me from having to make any direct financial contribution to my brother-in-law. More broadly, Ms Hendry may also be contending that the fact of Ms Stanton having made the donation is likely to make me think well of her, and that may lead me to find in favour of the State.

81    It could be said that some of these connections are not logical at all. That was the approach taken in both Aussie Airlines and Emanuele (see [64] and [68] above). But following the three steps laid out in Charisteas (and consistently with Reynolds v Rayney), I would prefer to assess them as to how reasonable the resulting apprehensions are, from the perspective of the fair-minded observer.

The reasonableness of the concerns raised

The personal relationship

82    In so far as the apprehensions concern the personal relationship between me and Ms Stanton, they are not reasonable. As discussed in the authorities above, it is inevitable that judges will know barristers who appear before them. They may be close personal friends or, for that matter, sworn enemies. The relationship between Ms Stanton and I falls well in between those two extremities. It is an unremarkable one, of a kind which the fair-minded observer would expect many barristers and judges to have. Before Ms Stanton became involved in this proceeding, the relationship was characterised by brief social contacts in professional settings. Since that time, I have followed the practice confirmed as appropriate by Charisteas, in not having any contact with Ms Stanton other than in open court.

83    The proposition that a relationship of this kind would lead a judge with the requisite professional training, and having made the judicial affirmation, to be inclined to favour the case of the client represented by the barrister is unreal: see in particular [68] above. The knowledge that barristers are independent and act professionally as representatives of clients, but are not personally identified with the client or the outcome of their case (see [63] above), would confirm the view of the reasonable observer that there is nothing untoward in Ms Stanton appearing before me in this or any other case. In that regard, the cases emphasise the distinction between a judge having a relationship with a legal representative, and a judge having one with a party or a witness.

84    While each case of alleged apprehended bias falls to be determined on its own facts, it is instructive to note that the relationship is nowhere near as close as the ones which were held not to be disqualifying in each of Aussie Airlines and Reynolds v Rayney. Nor has it involved social contact at an inappropriate time, or in an inappropriate way, as arose in Emanuele (although in that case it was held not to be inappropriate) and Charisteas (the latter being a case on which Ms Hendry relies). Charisteas was a very different case, involving numerous instances of contact between judge and counsel at a time when the judgment was reserved on a matter in which counsel had appeared. The situation here is closer to that which was held not to be disqualifying in Bienstein (see [69] above).

85    The exchange at the case management hearing of 2 July 2025, and the omission by Minter Ellison to copy Ms Hendry in to an email, would not lead the fair-minded observer aware of all the facts to think that there has been any untoward contact between me and Ms Stanton (or my Chambers and Minter Ellison). Why Ms Stanton thought that she had informed me of the separate representation of the State in respect of the stay application is unexplained; the fair-minded and not suspicious or ultra-sensitive observer would ascribe it to mistaken recollection on her part. Similarly, an observer who was not 'ultrasensitive, paranoid or cynical' would ascribe the omission of Ms Hendry's email address from one email to inadvertence. That observer would view as remote the possibility that untoward contact, between the judge and anyone else, was what underlay these incidents.

86    The Facebook 'friendship' between me and Ms Stanton does not change these conclusions. Ms Hendry correctly says in her written submissions that social media friendships are not always sufficient by themselves for recusal. On the basis of the matters discussed above, the mere fact of a Facebook 'friendship' with me (and her 'like' of my profile photo in 2019) does not change the complexion of the relationship as I have characterised it.

87    The Facebook 'friendship' between Ms Stanton and my wife is further removed from me and any decision I may make in this matter. That some forty years ago they went to the same high school (in different years) is further removed still. Any steps they may have taken to alter their Facebook settings after the recusal application was made are irrelevant. None of it provides a reasonable basis to apprehend bias on my part.

The donation

88    As to the significance of the donation, to suggest that it involves any express or implicit 'quid pro quo' is far-fetched. No fair-minded observer would think that is a real possibility. That would be the case regardless of when the donation was made, but the fact that it was made well before Ms Stanton's involvement in the proceeding makes the suggestion outlandish. Even if it is assumed that Ms Stanton made the donation upon seeing my post, neither the contents of the post nor the circumstances in which it was made give any reason to think that favours were being solicited, or that this was done on the basis that they would be returned.

89    Describing the donation as somehow relieving me of an obligation to financially support my brother-in-law and his family is pure speculation, untethered to reality. It is fantastical to suggest that I posted the GoFundMe link out of a concern to reduce any financial burden on me, or that I would view donations to the fundraiser as having that effect. Only a peculiarly suspicious and cynical observer, rather than a fair-minded one, would view it as a real possibility.

90    What is left, then, is the suggestion that Ms Stanton's donation to a fundraiser to support my brother-in-law and his immediate family could, conceivably, make me think well of her. But as with the existence of the relationship more generally, that would not lead the fair-minded observer to think that there is a real possibility that this will lead me to decide the case other than on its merits. It was a donation of a relatively modest amount. It was not a donation to me or my immediate family (wife and children); it was to my wife's brother and his immediate family. Ms Stanton is not a party to the proceeding, or a witness in it. She is an independent barrister representing one party. As stated in Reynolds v Rayney (see [71] above), the fair-minded observer recognises the ability of judges to put aside such matters while discharging public responsibilities.

Disclosure

91    Finally, the time at which I issued the Memorandum does not change these conclusions. The unremarkable Facebook and offline association between me and Ms Stanton was not a matter I needed to disclose. I was unaware of the donation until the recusal application was brought. The evidence filed in support of the application at that time disclosed the essential facts: the personal (and Facebook) relationship and the donation. I made the disclosure in the Memorandum well before the application for recusal came to be heard. The particular timing is explained by the stay application, as described above. None of this supports any reasonable apprehension that I will decide the case other than on the merits.

The differential procedural treatment

92    As for the disparity in procedural treatment between Ms Hendry and the represented parties, there is no logical connection between this and the suggestion that I might determine the case other than on its merits. Contrary to Ms Hendry's view, these are complaints about the administrative functions of the Court. They are not about the exercise of the judicial function. It is well established that a decision of a Registrar to refuse to accept a document for filing is administrative in nature: see Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 at [32], [41] (Barker, Banks-Smith and Colvin JJ). That must be all the more so for a decision by a Registry officer to delay the acceptance of a document.

93    Further, at a purely factual level, Ms Hendry has established no connection between those decisions and any direction on my part. I have set out the passages from transcript on which she relies, because they demonstrate that it is not possible to extract from them any intelligible complaint about Registry practice to which I have not reacted and so, it might be thought, have demonstrated partiality. In relation to the submission that Ms Hendry was required to circulate a draft amended statement of claim to the respondents before it was filed, it is common practice in Western Australia for parties who seek to amend pleadings to be required to file a minute or draft of the pleading before it is accepted for filing: see Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority [2011] FCAFC 122 at [7].

94    In this particular case, the document Ms Hendry sought to file was not appropriately structured and was not substantially compliant with the procedural requirements of a statement of claim. On that that basis, Ms Hendry was asked to circulate the lodged statement of claim to the respondent parties for their comment. After conferral between the parties, orders were made requiring Ms Hendry to structure her statement of claim in line with procedural guidelines provided in an annexure to those orders, in an attempt to see her put her case on a sound footing. Once Ms Hendry lodged her statement of claim in accordance with the structure set out in the orders, it was accepted for filing.

95    In that context, a fair-minded observer is likely to view the requirement to circulate the statement of claim for comment as a sensible procedural precaution, given the likelihood that objections would be raised. As it happened, objections were foreshadowed, but I determined that Ms Hendry should nevertheless be given leave to file the document while reserving the rights of the respondents to pursue their objections. To assist in that process, orders were made facilitating conferral in relation to any objections raised. None of this bespeaks bias.

96    There is a final point worth making about the differential treatment of which Ms Hendry complains. Sometimes, different treatment is warranted because the circumstances are different. I offered to issue a pro bono certificate for Ms Hendry so that she might be able to obtain legal representation. She chose not to take that opportunity. That choice made it inevitable that she would not have the benefit of the Court's auto accept system. While every litigant is entitled to the same level of fairness, regardless of whether they have legal representation, the years of training and experience that legal practitioners have in the preparation of legal documents correctly is not a mere irrelevancy. But if that does explain the approach Registry has taken, as I have said, there is no logical connection between that approach and any conduct on my part.

97    In any event, from the point of view of procedural fairness, Ms Hendry's complaint goes nowhere. Procedural fairness requires a proper opportunity to put evidence and submissions before the decision maker. Ms Hendry has not pointed to a single instance where a document she sought to file has not made its way onto the Court file, and so to the attention of me as the presiding judge.

98    The asserted differential procedural treatment provides no ground to apprehend bias on my part.

Conclusion on the recusal application

99    All of these matters need to be considered together, rather than picked off in isolation. In doing so, the fair-minded observer would conclude that Ms Stanton and I have an unremarkable professional association of a kind had by judges and barristers appearing before them every day; that I posted a link to the GoFundMe campaign out of a simple wish to help my brother-in-law and his family in their hour of need; that Ms Stanton made the donation to help a school friend in his hour of need; that the suggestion of a nefarious or corrupt motivation for these acts is an outlandish one; that any reaction I might have to learning of Ms Stanton's donation pertains only to an independent barrister, not to a party to the proceeding or a witness; and that these are matters to which a professional judge will pay no regard in deciding the case on its merits. The possibility that they will lead me to decide this proceeding other than on the merits is remote.

100    Ms Hendry's recusal application will therefore be dismissed.

Reallocation is nevertheless appropriate

101    Regrettably, that is not the end of the matter. While the grounds Ms Hendry has raised are without merit, it is necessary to face an uncomfortable reality about the way she has raised them. Ms Hendry has assiduously combed through the social media presence of not only me, but my wife. She chose to file affidavits which included screen captures of images of my family.

102    Above all, Ms Hendry has based her application in large part on a grievous medical emergency that has afflicted a member of my family. The nature of that emergency is set out on the GoFundMe page: my brother-in-law has a very severe case of Guillain-Barré Syndrome, a rare and serious condition where the body's immune system attacks the peripheral nervous system. As disclosed on the GoFundMe page, at the time the fundraiser was posted he was in intensive care on life support, unable to move or speak. Ms Hendry must have seen all this in her thorough researches. And she chose to utilise it, in order to baselessly ascribe the worst of motives to me and others.

103    That Ms Hendry was ascribing those motives became apparent when she filed her written submissions on 24 September 2025. Before that point, her sole affidavit filed in support of the recusal application referred to the donation as 'creating a subconscious bias in favour of the donor, in making an influence on the judge'. That is the logical connection between the donation and any bias which I have addressed above. But in the written submissions, this was elevated to a claim of a 'quid pro quo' in which I had sought 'favour, preferential treatment, or taking advantage by virtue of office' and engaged in an '[a]buse [of] the prestige of judicial office to advance the personal or economic interests of the judge'. Ms Hendry repeated such claims in public during her oral submissions on 9 October 2025.

104    The principles set out above include a recognition that, for all their training, judges are human beings, and not mere reasoning machines. The simple reality it that it would be difficult for any judge to be objective about a person who has conducted themselves in this way in connection with the judge's family circumstances. A fair-minded lay observer might reasonably apprehend that such a judge might not bring an impartial mind to the merits of the proceeding the person has brought. To be clear, it is not the strident and unjustified personal criticisms alone which lead to this conclusion. Judges face such criticisms frequently. It is the way Ms Hendry has based those criticisms on a significant tragedy in my family that creates a logical connection between her conduct in this proceeding, and a reasonable apprehension that I might not decide the case on the merits.

105    For that reason, and that reason alone, the proceeding will be returned to the Court's National Operations Registry to be reallocated as the Registry thinks appropriate.

106    In view of that, it would not be appropriate for me to make any determination as to the costs of Ms Hendry's application. There will be liberty to any party who wishes to raise the issue with the Court to do so by brief written submission.

Associate:

Dated:    16 October 2025