Further Edit: The County Court Practice Direction on communication with associates is here.

Edit: Many thanks to Stephen Warne for this post drawing my attention to the Federal Court’s decision in John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 where the Court succinctly stated the relevant principles of ex parte communication [at 12]:

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.

Stephen very sensibly makes the point that CCing an e-mail to an adversary takes no time at all. If you don’t want your opponent to read your communication with the court, should you be sending it anyway?

The latest case has just been handed down in the never-ending litigation I like to think of as Our Legal System v Modern Technology. There’s rarely been a cosy relationship between these titans, and every now and again there’s a little grinding noise that suggests that they can’t peacefully coexist.

On this occasion, laid out in R v Fisher [2009] VSC 100, a series of emails were exchanged between a Judge’s Associate and a solicitor from the OPP. The accused appealed on the ground that, as his counsel had not been included in the email distribution, he was prevented from being aware of their contents and able to make submissions on them. It was argued that the material enclosed in the emails prejudiced the plea of mitigation made on his behalf. They contained the results of further investigation undertaken by the Crown, and led the sentencing judge to conclude she was misled by earlier statements made by the accused through his counsel.

Although ex parte communications between a party and an associate are nothing new (arguably, they’re an important function of an associate), the emails were different from a verbal conversation because they thoroughly documented the details of the exchange.

The Court of Appeal found that the sentencing judge was misled by the accused, and was entitled to take this into account in discounting his claim of remorse. While finding that their discretion to re-sentence was activated, the Court declined to do so and re-imposed the original sentence.