Clarke v Herrick

The applicant, Ms Clarke, appealed to the Court of Appeal of New South Wales against the primary judge's dismissal of her claims of assault and battery against the respondents. The primary judge had rejected Ms Clarke's evidence in support of these claims.

The Court of Appeal was required to determine whether there was an arguable basis for concluding that Ms Clarke had a prospect of success on appeal, specifically whether the primary judge's findings of fact were glaringly improbable or contrary to compelling inferences. Additionally, the Court considered an application for the recusal of a judge on the ground of apprehended bias, arising from an adverse ruling made by that judge in previous litigation involving Ms Clarke.

Regarding the appeal, the Court found that Ms Clarke had not demonstrated that the primary judge's findings were glaringly improbable or contrary to compelling inferences, and therefore, she had no arguable prospect of success on appeal. On the recusal application, the Court held that Ms Clarke had failed to identify any reason why a reasonable bystander would apprehend that the judge might not bring an impartial mind to the resolution of the issues, given the previous litigation.

Consequently, the Court of Appeal dismissed the application for leave to appeal and ordered that Ms Clarke pay the costs of the respondents.