Fulton v Chief of the Defence Force & Ors

This case concerns an application for judicial review brought by Heath Maxwell Ryan Fulton against the Chief of the Defence Force and others. The dispute centres on allegations of apprehended bias on the part of a judge of the Federal Court, Justice Perry, who presided over Mr Fulton's original application. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether a fair-minded lay observer would have a reasonable apprehension of bias on the part of Justice Perry. This apprehension arose from the fact that, during the pendency of Mr Fulton's judicial review proceedings and prior to the hearing, Justice Perry had applied for and was under consideration for appointment as the Deputy Judge Advocate General (DJAG). This appointment required the approval of the Chief of the Defence Force, who was the respondent in Mr Fulton's application. The plaintiff argued that this undisclosed application for promotion, which involved a significant advancement within the Australian Defence Force and placed her under the command of the Chief of the Defence Force, could have led to unconscious bias.

The plaintiff's submissions contended that judicial impartiality is fundamental to the legitimacy of the judicial function and that the appearance of impartiality is as crucial as its reality. It was argued that while Justice Perry was already a reserve member of the Defence Force, the undisclosed application for promotion created a potential inducement that could erode judicial independence. The plaintiff highlighted that the appointment process commenced before the hearing and that the recommendation for Justice Perry's appointment was made shortly before the trial commenced. The plaintiff accepted that the promotion did not involve an immediate increase in pay, but argued that the concern was not actual bias but a reasonable apprehension of unconscious bias, which a fair-minded lay observer, aware of "human frailty," would recognise. The plaintiff also submitted that the absence of disclosure of the appointment process was relevant to the question of apprehended bias and potential waiver.