NSW Local Court chief judge’s WhatsApp message leads to appeal win for deputy in misconduct fight

In a ruling on Friday, the Court of Appeal delivered a win to Deputy Chief Judge Sharon Freund and set aside the Judicial Commission of NSW’s August decision to refer a matter concerning her to a conduct division, a panel that investigates complaints. The court found that messages Chief Judge Michael Allen sent about Freund created an appearance of bias.

Freund had lodged a complaint against Allen with the watchdog in May this year, alleging he bullied her over an 18-month period. The commission determined in June that the complaint was not substantiated and dismissed it summarily, instead making adverse findings against her. Allen then wrote to NSW Attorney-General Michael Daley on June 25, raising the findings about Freund. Daley referred the findings back to the commission, and on August 10 the watchdog referred that matter to a conduct division.

Freund launched proceedings in the Court of Appeal seeking orders quashing the commission’s decision to refer the matter. 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 by August 10 he had been excluded from participating in examining the matters raised about Freund. However, an administrative error led to Allen being sent board papers relating to that issue in late July, and the chief judge sent a WhatsApp message about them to Sydney barrister Murugan Thangaraj, SC, a member of the 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 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. 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”.

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 message to the commission for the purposes of the August decision because this was not recorded in the minutes.

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”. The submissions said the commission characterised the seriousness of the matter by reference to the definition of ‘corrupt conduct’ in the Independent Commission Against Corruption Act, a comparison that nothing in the dismissal called for. Some commission members considered Freund’s complaint “not brought in good faith” and could be viewed as “an attempt to deflect” an inquiry by Allen into “what appeared to be irregular conduct and partiality”.

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.”