Clark v Attorney General of New South Wales (No 2)

In *Clark v Attorney General of New South Wales (No 2)*, the applicant sought to reopen a judgment of the Court of Appeal of New South Wales delivered on 30 April 2020. The core of the dispute concerned whether a judge who had previously sat on an appeal from the applicant's conviction was disqualified from subsequently sitting on a judicial review proceeding related to the dismissal of an application for an inquiry under s 79(3) of the *Crimes (Appeal and Review) Act 2001* (NSW).

The Court of Appeal was required to determine two primary legal issues. Firstly, it had to consider whether the judge's prior involvement in the applicant's appeal created a disqualifying bias, specifically apprehended bias, in the subsequent judicial review proceeding. Secondly, the Court needed to assess whether the reasons provided for the final judgment in the appeal could be relied upon to sustain an allegation of apprehended bias, and whether those reasons themselves disclosed actual bias on the part of the judge.

The Court of Appeal dismissed the applicant's amended notice of motion. Their Honours reasoned that the mere fact that a judge had previously heard an appeal from a party's conviction did not automatically disqualify them from hearing a subsequent judicial review proceeding concerning a different matter, such as the dismissal of an application for an inquiry. The Court found no evidence to suggest that the judge's prior participation in the appeal had led to any actual bias or that there was a reasonable apprehension of bias in the context of the judicial review. The reasons for the final judgment were examined and found not to disclose actual bias.