Messages sent by the top judge of the NSW Local Court about one of his deputies amid a dispute between the pair have been revealed in an explosive court fight.
In a ruling on Friday, the Court of Appeal delivered a win to Deputy Chief Judge Sharon Freund and quashed a decision made against her by the judicial watchdog, the Judicial Commission of NSW, after examining messages Chief Judge Michael Allen sent about her to a commission member.
Freund had lodged a complaint against Allen with the watchdog in May this year alleging he bullied her over an 18-month period, according to documents filed by her lawyers in court.
However, her complaint backfired when the commission determined in June that it was not substantiated and dismissed it summarily, instead making adverse findings against her.
Allen wrote to NSW Attorney-General Michael Daley on June 25, raising the findings about Freund.
“So concerning is the content of the [judicial commission’s] findings in response to the complaint and the conduct of [Freund], I consider it necessary to bring it to your attention,” Allen’s letter said.
Daley referred the findings about Freund back to the commission, and the watchdog referred that matter on August 10 to a conduct division of the commission, which is a panel that investigates complaints.
Freund launched proceedings in the Court of Appeal, seeking orders quashing the commission’s decision to refer the matter to a conduct division. The court made that order on Friday and remitted the matter to the commission “to be dealt with according to law”.
It means the watchdog will consider afresh whether to refer the matter to a conduct division.
Allen is a member of the Judicial Commission, but the court heard that by August 10 he had been excluded from participating in examining the matters raised about Freund.
However, the court said an administrative error led to Allen being sent board papers relating to that issue in late July, and the top judge sent a WhatsApp message about them to Sydney barrister Murugan Thangaraj, SC, a member of the Judicial Commission.
“Not sure she will ever go away. The corro from the lawyer was not only curious, if not strange, but also purposefully antagonistic?” Allen said in the message on July 29.
Thangaraj replied: “Recent correspondence? I haven’t seen it yet. Haven’t read the August papers if that’s where it is.”
The chief judge replied: “August papers, but has until 5 August to provide response.”
The Court of Appeal – Justices Mark Leeming, Anthony Payne and Richard McHugh – said in its decision on Friday that the watchdog’s decision to refer the Freund matter to a conduct division was affected by apprehended bias because of the messages sent by Allen.
This is not a finding of actual bias, but of the appearance of it.
“Despite being excluded from deliberations of the Judicial Commission, the Chief Judge was inadvertently sent the papers relating to that agenda item by the Judicial Commission’s staff,” the court said.
“Having read those papers, the Chief Judge communicated a view about the papers to a member of the Judicial Commission, namely, Mr Thangaraj.”
The court concluded that a fair-minded observer might “apprehend that Mr Thangaraj, himself potentially affected by the Chief Judge’s comments, then sufficiently affected the August decision in that the Judicial Commission might have been diverted from the impartial course it thought it had determined by excluding the Chief Judge from its deliberations”.
However, the court stressed that “no suggestion was made by any party and none is made by this Court that there was any deliberate conduct by any member of the Judicial Commission or its staff”.
It said a fair-minded observer would also “reasonably infer” that Thangaraj did not disclose Allen’s WhatsApp message to the commission for the purposes of the August decision because this was not recorded in the minutes of the meeting.
According to submissions filed by Freund’s lawyers in court, the findings made by the Judicial Commission about her when it dismissed her bullying complaint against Allen in June “concerned her handling in 2024 of a criminal matter in which the defendant was the adult child of another magistrate, about which the Chief Judge had questioned her”.
“It characterised the seriousness of the matter by reference to the definition of ‘corrupt conduct’ in s 8 of the Independent Commission Against Corruption Act 1988 (NSW) … a comparison that nothing in the dismissal of her complaint called for,” Freund’s lawyers said.
Some Judicial Commission members considered Freund’s complaint about the chief judge was “not brought in good faith” and could be viewed as “an attempt to deflect” an inquiry by the chief judge into “what appeared to be irregular conduct and partiality”, the submissions said.
A spokesperson for Freund said in a statement that she “welcomes and respects the decision of the NSW Court of Appeal”.
“A referral to the Conduct Division is a step of the utmost seriousness for any judicial officer,” the spokesperson said.
“It puts tenure at risk; in her case, it was followed by the Chief Judge asking her to show cause why she should not be suspended from office. The body charged with examining the conduct of judicial officers is bound to act according to law. The Court of Appeal has found that, in referring her, the Commission did not.”
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Disclaimer : This story is auto aggregated by a computer programme and has not been created or edited by DOWNTHENEWS. Publisher: www.smh.com.au
