Hercules v Phease; Hercules v Lah

These proceedings before the High Court of Australia concerned applications for special leave to appeal by Percival Charles Phease against respondents in two separate matters, M77 of 1992 and M78 of 1992. The applicant sought an adjournment of the special leave hearing, contending that his legal representatives had only recently received the relevant brief and had insufficient time to prepare the application.

The central legal issues before the Court revolved around the circumstances under which a judge's decision could be set aside. Specifically, the applicant argued that a decision might be impeachable due to correspondence received by the judge after the conclusion of oral argument but before judgment, which was not disclosed to one of the parties. A further issue raised was whether leave should have been granted to introduce additional grounds of appeal concerning this correspondence, particularly when the primary substantive issue in the appeal was a question of law of a different nature.

The applicant's submissions highlighted that the case involved not only the question of whether correspondence sent to a judge after submissions but before judgment, and not disclosed to a party, could lead to a decision being set aside, but also the question of whether the applicant was entitled to respond to such correspondence. This, it was argued, raised fundamental questions concerning the administration of justice, including aspects of due process, the law of contempt, and the apprehension of apprehended bias, distinct from any suggestion of actual bias.