Barakat v Goritsas (No 2)

In *Barakat v Goritsas (No 2)*, the applicants sought to appeal a decision of the primary judge. The core of the dispute involved an application to adduce fresh evidence on appeal, and a related issue concerning an apprehended bias on the part of the primary judge. The appeal was heard by Basten and Young JJA, and Sackville AJA.

The legal issues before the appellate court were twofold. Firstly, whether the court should receive evidence pursuant to section 75A(7) of the *Supreme Court Act 1970* (NSW) to supplement the transcript, and whether the court should exercise its discretion to reject admissible evidence tendered for the first time on appeal. Secondly, the court considered whether an appellate court, or a court exercising supervisory jurisdiction, should review a judgment of the court below on a recusal application, and whether exchanges between counsel and the judge demonstrated that a fair-minded lay observer might apprehend bias.

The court discussed the principles governing the admission of fresh evidence on appeal, referencing *Vakauta v Kelly* (1988) 13 NSWLR 502. The judges considered the criteria for exercising their discretion to admit such evidence, weighing the potential prejudice against the probative value. Regarding the apprehended bias, the court examined the conduct and exchanges during the proceedings to determine if they would lead a fair-minded lay observer to conclude that the judge might not bring an impartial mind to the issues.

The appeal was dismissed, and the applicants were ordered to pay the respondents' costs.