Sharon Freund v Attorney General of NSW & Judicial Commission - Update on the NSW Court of Appeal Hearing of 27 October 2026

Deputy Chief Judge Sharon Freund's dispute with Chief Judge Michael Allen led to her lodging a bullying complaint against him with the NSW Judicial Commission. She subsequently commenced judicial review proceedings against the NSW Attorney General and the Judicial Commission, challenging two decisions: the dismissal of her bullying complaint and the referral of concerns regarding her own judicial conduct.

On Tuesday, 27 October 2026, proceedings in Sharon Freund v Attorney General of New South Wales, involving the Judicial Commission of NSW as the second respondent, resumed before the NSW Court of Appeal in Courtroom 13A of the Supreme Court of New South Wales.

The hearing followed proceedings on Friday, 23 October 2026 concerning Deputy Chief Judge Sharon Freund's judicial review challenge to two Judicial Commission decisions: the dismissal of her bullying complaint against Chief Judge Michael Allen and the referral of concerns regarding her own judicial conduct.

This update follows our earlier article on the hearing of 23 October 2026.

Proposed Consent Orders and Apprehended Bias Issue

At the conclusion of the hearing on 23 October 2026, the bench and parties discussed the possibility of resolving matters in dispute through consent orders.

At the resumed hearing on 27 October 2026, draft proposed consent orders and a statement of agreed facts were handed up to the Court.

The proposed orders concerned, among other matters, an apparent concession by the NSW Attorney General that a Judicial Commission decision was “affected by apprehended bias”.

Brendan Lim SC (Eleven Wentworth Chambers), appearing for the NSW Attorney-General, confirmed support for the proposed orders.

The Court nevertheless closely examined the proposed orders, questioning counsel about their legal basis, practical operation and the appropriateness of the relief sought.

Consent orders are an ordinary feature of litigation. However, agreement between parties proposing orders by consent does not remove the Court's responsibility to determine whether the proposed judicial relief should be granted. That remains a function of the Court.

Questions Concerning the Attorney General's Powers and Judicial Relief

Justice Leeming questioned why, particularly given the apparent concession concerning apprehended bias, the Attorney General, as the responsible Minister, could not take steps to address the referral without the need for the proposed judicial orders.

Mr Justin Gleeson SC (Banco Chambers) appearing for the Judicial Commission, referred to the possibility of a further complaint. He submitted, in substance, that if Arthur Moses SC (New Chambers) persuaded the Court to make the proposed orders, the Commission would deal with the Attorney General's complaint or referral in accordance with its statutory obligations. Any further complaint, if made, would likewise be dealt with according to law.

The discussion included section 21(1) of the Judicial Officers Act 1986 (NSW), the statutory requirements concerning complaints and referrals to the Conduct Division, and the distinction between the Judicial Commission and a court, including the standards of impartiality applicable to its decision-making.

The Court also considered the appropriate form of judicial review relief, including declarations, certiorari and mandamus. Mr Gleeson SC submitted that mandamus was unnecessary and that the choice remaining for the Court was “declaration or certiorari”.

Communications and Disclosure

The hearing included references to correspondence, minutes of meetings and WhatsApp communications relevant to the apprehended bias issue.

Questions arose concerning communications involving Judicial Commission members, including whether particular communications had been recorded in meeting minutes or disclosed to Freund.

It was submitted that Chief Judge Allen had received and read certain documents as a result of an administrative error.

Counsel addressed the legal test for apprehended bias, including the perspective of the fair-minded lay observer.

The Applicant's Broader Grounds

Justice Leeming sought clarification from Mr Moses SC, who confirmed that the applicant had not been heard on all the prayers for relief contained in the summons.

Mr Moses SC submitted that the case presented to the Court was narrower than the applicant's broader case, which included alternative grounds.

Mr Moses SC further indicated, in substance, that in the event the Court was not satisfied that the proposed orders should be made, the applicant would contemplate making an application to further amend the summons to pursue broader alternative grounds.

Further Directions - Two Judicial Commission Members to Be Notified

Mr Gleeson SC provided the Court with correspondence concerning Judicial Commission members, including two members whose responses remained outstanding.

The Court considered that those members should be afforded an opportunity to indicate whether they wished to be heard in relation to the proposed orders under consideration.

The members identified during the hearing were Chief Judge Michael Allen and Mr Murugan Thangaraj SC. As a member of the Judicial Commission, Chief Judge Allen was among those whose communications were referred to at the hearing.

The Court made procedural directions requiring the Judicial Commission to notify both members of the proceedings and the proposed orders discussed at the hearing, and to provide them with a copy of the hearing transcript.

The Judicial Commission was directed to notify the Court by noon on Friday, 30 October 2026, whether either member wished to be heard in relation to the proposed orders.

Depending on their responses, further directions or another hearing date may be required.

The matter has been stood over for further directions, pending notification of whether the two members wish to be heard.

Proposed Consent Orders - Outcome Pending

Importantly, the Court has not made the proposed consent orders discussed on 27 October 2026.

Although the parties appeared to have reached agreement concerning aspects of the proposed relief, further considerations remain outstanding, including whether the two Judicial Commission members wish to be heard.

The Court made procedural directions and stood the matter over.

While the hearing indicated a possible resolution of aspects of the proceedings, the substantive outcome remains pending.

The hearing demonstrates the distinction between proposed orders agreed by the parties and the Court's independent responsibility to determine whether those orders should be made.

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Disclaimer

This article is an independent, firsthand account of proceedings observed in open court on 27 October 2026. It is based on contemporaneous notes and recollection and is not a verbatim transcript or an official court record.

References to submissions, judicial questions, proposed orders and matters discussed during the hearing should not be interpreted as final judicial findings unless expressly identified as such.

At the time of writing, we have not identified any other published account of the hearing held on 27 October 2026. This account is published in the public interest to contribute to transparency, public understanding and discussion of judicial accountability and the administration of justice.