The case involved a Family Court property settlement that divided assets between a Perth real estate agent and his former wife, who under Australian law cannot be identified.
Walters ruled in favor of the wife, who was represented by lawyer Gillian Anderson. Court documents show the husband’s lawyer later wrote a letter to Anderson raising “gossip” within Perth legal circles of a personal relationship between Anderson and the judge.
Anderson replied by letter two weeks later that she had met Walters for coffee or drinks several times, they spoke over the phone and exchanged text messages in the two years before his judgment.
She said the relationship was not intimate and she did not discuss the “substance of the case” with the judge, court documents show.
Walters, who retired three days after making his ruling, had issued orders in the case as early as 2015 and rejected the husband’s application for him to recuse himself while hearings were ongoing.
The husband appealed Walters’ ruling on the ground of apprehended bias. But the Full Bench of the Family Court denied him a retrial in 2-1 decision. Two judges found an observer would be “willing to tolerate” some private communication between a judge and lawyer, while the dissenting judge found the communication should not have happened and should have been disclosed.
The High Court ruled that once a case is about to get underway, there should be no communication or association between a judge and one of the parties except in the “most exceptional of cases.” There were no exceptional circumstances in this case, the judges said.
“A fair-minded lay observer would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honor was required to decide,” the High Court found.