UPDATE | Freund v Attorney General of NSW -Court of Appeal Judgment, 30 October 2026
Updated: 13 minutes ago
PUBLIC INTEREST | JUDICIAL ACCOUNTABILITY | PROCEDURAL FAIRNESS | RULE OF LAW
The NSW Court of Appeal quashed the Judicial Commission's referral decision on the narrow ground of apprehended bias. However, the Attorney-General's complaint has not been dismissed and has been remitted to the Judicial Commission for reconsideration according to law.
Background
On 23 and 27 October 2026, the NSW Court of Appeal heard judicial review proceedings brought by Deputy Chief Judge Sharon Freund of the NSW Local Court against the Attorney-General of New South Wales and the Judicial Commission of NSW.
As previously reported in our account of the hearing on 23 October 2026, the proceedings arose from a dispute between two senior judicial officers of the NSW Local Court, involving allegations of bullying and concerns about a criminal matter involving the adult child of another judicial officer.
These matters were referred to in the parties' submissions and are not findings made by the Court of Appeal.
Importantly, these proceedings were an application for judicial review, concerned with the lawfulness of the Judicial Commission's decisions, including challenges relating to procedural fairness and apprehended bias.
The Court was not tasked with determining the truth or merits of the underlying allegations of judicial conduct, but rather whether the challenged decisions were made according to law.
The judicial review concerned two decisions of the Judicial Commission:
June 2026 decision: The Judicial Commission summarily dismissed a complaint made by Deputy Chief Judge Freund against Chief Judge Michael Allen. The complaint was described in the proceedings as concerning alleged bullying. Chief Judge Allen, a member of the Commission, took no part in determining that complaint.
August 2026 decision: Chief Judge Allen subsequently drew the Attorney-General's attention to matters contained in the June decision. The Attorney-General referred a complaint concerning Deputy Chief Judge Freund to the Judicial Commission. On 10 August 2026, the Commission decided not to summarily dismiss the complaint and referred it to its Conduct Division under the Judicial Officers Act 1986 (NSW).
Deputy Chief Judge Freund commenced judicial review proceedings challenging both decisions.
Developments Following the Hearing on 27 October 2026
Following submissions on 27 October 2026, the Court adjourned the proceedings to allow Chief Judge Michael Allen and Judicial Commission member Mr Murugan Thangaraj SC an opportunity to consider the written submissions and the hearing transcript, and determine whether they wished to make submissions.
The Judgment records that:
On 28 October 2026: Mr Thangaraj informed the Court that he did not wish to make submissions.
On 30 October 2026: Chief Judge Allen informed the Court that he did not wish to be heard concerning the proposed orders or agreed facts, noting that he had not participated in their formulation or the proceedings.
On Friday, 30 October 2026, the Court of Appeal, constituted by Leeming JA, Payne JA and McHugh JA, delivered its judgment in Freund v Attorney General of New South Wales [2026] NSWCA 232.
What Did the Court Decide?
The Court found that the Judicial Commission's August decision was affected by apprehended bias amounting to jurisdictional error.
The finding arose from an administrative error in which papers concerning the Attorney-General's complaint were inadvertently provided to Chief Judge Allen, who had been excluded from participating in the Commission's consideration of that complaint.
After reading the papers, Chief Judge Allen communicated his views to Commission member Mr Thangaraj SC in a WhatsApp exchange.
The Court concluded that a fair-minded observer might apprehend that the communication could have affected the Commission's impartial decision-making.
At paragraph 18, the Court expressly stated that its finding was made “on that very narrow basis”.
Importantly, the Court made no finding of deliberate wrongdoing by any member or staff of the Judicial Commission.
The NSW Attorney-General, the first respondent in the proceedings, submitted that it was open to the Court to find apprehended bias and make the proposed orders.
The Judicial Commission, the second respondent, neither consented to nor opposed the relevant order concerning the August decision.
The final orders were substantially in an agreed form, although the Court independently determined that the August decision was affected by apprehended bias.
The Court's orders included:
June decision: The challenge concerning the dismissal of Freund's complaint against Chief Judge Allen was dismissed by consent.
August decision: The decision to refer the NSW Attorney-General's complaint to the Conduct Division was quashed on the narrow ground of apprehended bias.
Other grounds: The remaining challenges were dismissed by consent.
Remittal: The Attorney-General's complaint was remitted to the Judicial Commission to be dealt with according to law.
Costs: The Judicial Commission was ordered to pay Freund's costs up to and including 23 October 2026, while the NSW Attorney-General was to bear his own costs.
The Attorney-General's Complaint Has Not Been Dismissed
This is an important distinction in understanding the outcome of the judicial review.
The Court did not determine the underlying allegations concerning Deputy Chief Judge Freund's conduct. Nor did it dismiss the Attorney-General's complaint.
At paragraph 21, the Court expressly explained that quashing the August decision leaves the Attorney-General's complaint undetermined before the Judicial Commission.
The complaint has therefore been returned to the Judicial Commission for reconsideration according to law.
Under the Judicial Officers Act 1986 (NSW), the Commission must consider whether the complaint should be summarily dismissed under s 20. If it is not summarily dismissed, s 21 requires referral to the Conduct Division.
Accordingly, a further referral to the Conduct Division remains legally possible.
A decision being quashed does not mean the underlying complaint has disappeared. Equally, a complaint or referral does not establish misconduct.
Judicial review examines the lawfulness of administrative decision-making. A successful challenge based on procedural unfairness or apprehended bias does not resolve the substantive allegations that gave rise to the decision.
Judicial Accountability and the Rule of Law
The judgment illustrates the importance of procedural fairness and impartiality in the exercise of statutory powers, including those exercised by bodies responsible for judicial accountability.
It also highlights the distinction between correcting a legally defective decision-making process and determining the underlying conduct concerns.
The Court's decision requires the Judicial Commission to reconsider the Attorney-General's complaint lawfully.
The outcome of that reconsideration remains to be determined.
Judicial accountability requires both procedural fairness for those whose conduct is questioned and a lawful, impartial process for examining complaints.
These safeguards are not mutually exclusive. They are fundamental to the rule of law and public confidence in the administration of justice.
-----------------
Odtojan Bryl Justice Project (OBJP) & Odtojan Bryl Lawyers - Public Interest Reporting | Judicial Accountability
Disclaimer: This article is an independent public-interest report and commentary based on observations of open court proceedings, the Court of Appeal's published judgment and matters raised in the parties' submissions. Allegations and submissions are reported as such and should not be construed as established findings of fact or misconduct. The judgment concerned the lawfulness of the challenged decisions and did not determine the underlying allegations. The Attorney-General's complaint has been remitted to the Judicial Commission for reconsideration according to law. The questions and views raised are commentary on matters of public interest.
Comments