Unilateral communication with a judge’s associate is a dangerous practice. Unless it relates purely to procedural matters (and who knows exactly what the limits of that are), any communication with the Court, especially with a judge’s associate should be copied to the other side, or the other side should immediately be informed of it. In these days of email, what can be the harm in copying the other side in every case? If you don’t want to do so, you probably should not be communicating with the court. Apart from the fact that it is improper to communicate unilaterally with the Court, it might give rise to an apprehended bias-based application that the judge recuse her or himself. In John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34, such an application failed, but the unanimous Full Court pithily stated the law:
’12 The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case. See, for example, Re JRL; Ex parte CJL (1986) 161 CLR 342 (“Re JRL”) at 346 (Gibbs CJ) and 350 (Mason J), both citing Kanda v Government of Malaya [1962] AC 322 at 337 and Reg. v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127. In this context, communications made by one party without the knowledge of the other are governed by the principle that a judge should disqualify himself from hearing a matter where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues in the case: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; [2011] HCA 2 at 464-5, [139]-[140]; Re JRL at 351. This is the apprehension of bias principle.’
