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

In the Supreme Court of New South Wales, Basten AJA considered a recusal application brought by the applicant, Mr Clark, against the judge presiding over proceedings concerning a judicial review. Mr Clark sought the recusal of the judge on the grounds of a reasonable apprehension of bias, stemming from earlier rulings made by the same judge in related proceedings that were unfavourable to him. The core of the dispute revolved around whether the judge's prior unfavourable rulings in separate matters created a perception of bias in the current judicial review.

The court was required to determine two primary legal issues. Firstly, whether the applicant had established a reasonable apprehension of bias, such that a fair-minded lay observer would think the judge might not bring an impartial mind to the determination of the case. Secondly, the court considered whether the judicial review of a decision made by a different judge constituted an "appeal" within the meaning of section 110 of the *Supreme Court Act 1970* (NSW), particularly where the applicant contended that the decision under review had wrongly concluded that the matter had already been dealt with in an earlier judgment.

Basten AJA reasoned that the court's role in the current proceedings was limited to determining errors of law, and that the applicant had not demonstrated a basis for a fair-minded lay observer to apprehend bias. The earlier rulings, while unfavourable, were found not to indicate that the judge would be unable to approach the current case with an impartial mind. Furthermore, the court determined that a judicial review of a decision by a different judge did not fall within the prohibition on a judge sitting on an appeal from their own judgment, as contemplated by section 110 of the *Supreme Court Act 1970* (NSW).

Consequently, the recusal application was refused.