NSW Deputy Chief Judge Sharon Freund has taken her challenge to a watchdog referral before the Court of Appeal amid a prolonged dispute involving Local Court Chief Judge Michael Allen. The latest proceedings concern whether decisions and observations arising from a Judicial Commission process were reached and handled lawfully. The legal contest remains unresolved, and the allegations at its centre must not be treated as disciplinary findings against either judge.

Published accounts of the Court of Appeal proceedings say Freund’s lawyers have challenged the Attorney-General’s referral of her conduct to the NSW Judicial Commission. The dispute has been linked to questions about the handling of a criminal case involving a judicial colleague’s adult child and to competing allegations about procedural propriety. Those accounts remain contested, and the Court of Appeal’s task is not identical to a final disciplinary inquiry.

The dispute grew out of the allocation of a criminal matter involving the adult child of another judicial officer. Accounts of court documents say Chief Judge Allen questioned whether an interstate judge should have been arranged and whether a possible personal connection required further disclosure. Freund disputes that her approach was improper and, through her lawyers, has argued the arrangements were appropriate. Those competing positions are not findings by the Court of Appeal.

Freund made a complaint about Allen’s alleged behaviour to the Judicial Commission. According to earlier accounts of the court filing, the commission dismissed that complaint but recorded comments critical of Freund’s conduct and good faith. Allen then drew those observations to the attention of NSW Attorney-General Michael Daley, who referred concerns about Freund back to the commission. The commission subsequently moved towards an examination of her conduct. The sequence matters because a complaint about one judge and a referral concerning another are distinct decisions with different legal consequences.

These are different stages of an accountability framework. A complaint, an observation, a referral and a final adverse finding are not interchangeable. The existence of a referral does not prove judicial misconduct, and an appeal about procedure does not itself determine the truth of every underlying allegation.

Freund’s barrister, Arthur Moses SC, argued in the reported hearing that she handled the allocation properly and questioned whether Allen’s contacts with members of the Judicial Commission were compatible with his withdrawal from considering her complaint. The arguments relied in part on communications said to have been produced to the court. They remain allegations and submissions, not findings that any judge or commission member acted unlawfully.

Allen has disputed important aspects of the account advanced against him, according to the same hearing report. Lawyers representing the Attorney-General and the commission also contested aspects of Freund’s procedural fairness case. The reported positions make clear that the court was hearing opposing arguments. A disputed description of someone’s words, motives or communications must not be converted into an agreed fact simply because it appeared in an account of the proceedings.

The hearing report described messages alleged to have passed between Allen and people associated with the commission. Freund’s lawyers argued that the communications raised questions about an intended withdrawal from relevant decision-making. The authenticity, context and legal effect of material aired in litigation are matters for the court to assess. It would be wrong to claim that the reported messages establish improper influence, collusion or a breach of the law.

The NSW Judicial Commission has an important role in dealing with complaints about judicial officers. The process needs to protect public confidence in the administration of justice while preserving the independence of judges and the right of an individual officer to a fair procedure.

Those goals can pull in different directions. Confidentiality can protect witnesses and the integrity of an investigation, but insufficient explanation can leave the public confused about what has been decided. A transparent legal challenge may clarify powers and procedures, even if the underlying complaint remains unresolved.

The Attorney-General’s referral is also an institutional step, not a declaration of guilt. Its legality and its consequences are precisely among the matters being challenged. Any assessment should therefore focus on what the court has actually ordered, rather than assuming the referral will automatically lead to punishment.

A report of the latest Court of Appeal hearing said the parties agreed to put questions concerning an earlier commission decision aside for the time being, while a further short hearing was anticipated concerning the later referral. That is a description of the reported procedural position, not confirmation that the earlier decision has been overturned, that the later referral has been quashed, or that the judges have been exonerated or disciplined. The precise operative orders have not been established in the public material reviewed for this account.

The case has raised public questions about judicial governance, complaint procedures and perceived conflicts. Those are legitimate subjects of reporting because people appearing in court need to trust that decisions are made independently and complaints are handled fairly.

At the same time, an argument between senior judicial officers is not proof that ordinary court cases were wrongly decided. No such blanket conclusion follows from the reporting available about the dispute.

The next useful development would be an authoritative court order explaining how the challenge to the referral will proceed. A publicly available judgment, if one is issued, could clarify the jurisdictional and procedural arguments that have so far been described mainly through court filings and reported submissions. Until then, it is premature to predict whether the referral will stand, whether any issue will return to the commission or whether a separate conduct examination will take place.

Until then, Freund’s challenge, Allen’s reported criticisms and the Attorney-General’s action must be presented as separate acts within an unresolved process. It is possible to report a serious disagreement without making a premature finding against anyone involved.

For the public, the enduring issue is whether the procedures designed to maintain judicial accountability can operate fairly and independently even when the participants are senior figures within the same court system.

The Judicial Commission of NSW’s current complaint guidelines explain the stages of its work. After a preliminary examination, the commission can dismiss a complaint, refer it to the head of jurisdiction or send it to a Conduct Division for more formal examination. The guidelines describe opportunities for an officer to respond before relevant referrals and state that a commission member must not take part in the handling of a complaint concerning that member. These rules set out the general process; they do not decide whether anyone departed from it in this particular dispute.

The Conduct Division is appointed to examine a specific complaint. Under official guidelines, it comprises two judicial officers and a community representative. Its work may involve obtaining records, interviewing witnesses, considering legal submissions and deciding whether to conduct a public or private hearing. The division operates under statutory procedures, which are intended to balance scrutiny with the independence of those working in the courts. General guidelines provide context for the dispute; they do not establish that any particular participant breached the rules in this case.

The Court of Appeal can be asked to consider whether a public authority used the powers Parliament granted it and followed required procedures. That type of challenge is different from asking an appeal court to resolve every accusation made in a workplace dispute. Even if a procedural decision is set aside, the result may be further consideration under the correct process rather than a declaration that one side’s entire version of events is true.

Earlier accounts of Freund’s court application said she sought review of adverse observations made when her complaint about Allen was rejected as well as the later decision to refer her conduct to a division for examination. Her lawyers argued that she had not received a fair opportunity to address material used against her, while respondents resisted elements of her case. A review of legal powers and procedural fairness is not a determination that either judge’s version of the underlying workplace events is true.

The disagreement has involved concerns about the allocation of a criminal case connected to another judicial officer’s family and questions about how a potential conflict was managed. The proper steps depend on the precise facts and the rules in force. What one participant describes as a departure from protocol may be contested by another who says the allocation was handled appropriately. Reporting those positions as competing arguments is more accurate than announcing a breach that has not been finally established.

The commission’s published guidance says a judicial member should not take part in decisions on a complaint against that member, and it describes safeguards around possible conflicts. Freund’s lawyers have challenged whether communications attributed to Allen were consistent with the withdrawal he was said to have undertaken. That dispute raises a concrete procedural question, but the existence of an alleged message does not itself establish that Allen voted, influenced a result or breached a legal duty. Those are questions requiring evidence and a court’s assessment of the applicable rules.

Courts need the public to have confidence that judges can decide cases independently. That confidence also requires credible procedures for considering allegations about judicial conduct. Protecting judicial independence does not remove accountability, and accountability does not justify prejudging an allegation. Both principles depend on applying rules consistently and making reasons available where the law permits.

The practical question now is what the Court of Appeal decides about the referral and what procedural steps, if any, follow. The reported hearing has not resolved the underlying allegations against Freund or the claims she made about Allen. An investigation is not a disciplinary conviction, and a challenge to the investigation is not proof of innocence or wrongdoing. Public confidence depends on recognising those differences while the legal process is unfinished.