In his decision yesterday rejecting an application to recuse himself from the Trade Union Royal Commission on the grounds of apprehended bias, Commissioner Dyson Heydon considered whether a reasonable bystander would think (contrary to Heydon’s own assertion) that Heydon would read all of his email attachments (including one describing the nature of the function he had agreed to speak at.) The ACTU’s counsel, Robert Newlinds SC, argued:
People don’t get appointed to the High Court of Australia unless they are considered truly brilliant lawyers, and what the truly brilliant lawyers have over and above truly ordinary lawyers, they have that special ability to absorb incredibly quickly and distil facts, and an ability to retain facts so absorbed and distilled, so as to fit them into the wider picture of the particular legal problem at hand…. So, the reasonable hypothetical bystander is going to think you’ve read this email.
But the Commissioner countered that the reasonable bystander would have a quite different view of former High Court judges’ reading habits:
The bystander is in fact likely to reason that one thing a legal background brings is a capacity to go to the point of an email – a form of communication oppressively compelling a speedy response – so that a response can be despatched, particularly where the email does not relate to particular legal problems but to an extra-curricular engagement… . [H]aving glanced through the email on the first page, noting the time, date and place of the dinner, and noting that I was to be the guest of the organisers, it was not necessary for me to read the attachments explaining how those who were to pay would pay. That subject was of no concern to me… The contention that, having regard to those matters, the fair-minded observer would necessarily infer that I read the invitation is fanciful.
Those hypothetical fair-minded observers may be surprised to learn that being a former dean of Sydney law school, a former High Court judge and a current Royal Commissioner does not require even basic computer skills. The Commissioner explained:
At the outset, it should be noted that there is evidence that I have no computer and that all email correspondence is sent and received by my personal assistant (ACTU MFI-6).
Indeed it is notorious among the legal profession that I am incapable of sending or receiving emails. The consequence is that I read emails only after they have been printed out for me.
As the reasons noted, the former judge’s findings may be reviewed by other judges:
To some minds, including those of fair-minded lay observers, it might seem strange that a person complaining about the bias of a Royal Commissioner should make application for disqualification not to a court, but to the person accused of bias or apprehended bias…Of course if the application to the decision-maker for disqualification fails, the applicant then has the opportunity to seek relief from a court of competent jurisdiction.
If yesterday’s decision is appealed to the fullest extent available, then it is possible that the current High Court may eventually need to rule on how a reasonable bystander would perceive their own email reading habits.