Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2)

In Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2), the plaintiff, represented by counsel, sought to recommence proceedings against the defendant that had previously been withdrawn. The dispute centred on the propriety of recommencing the litigation and the potential for bias in the assigned judicial officer, Justice Refshauge. The matter was heard in the Supreme Court of New South Wales.

The central legal issues involved whether the recommencement of the proceedings constituted an abuse of process, and if Justice Refshauge should be disqualified due to apprehended bias. The plaintiff argued that the recommencement was not an abuse of process because the original withdrawal did not preclude further proceedings, and that the judge's impartiality was compromised by prior professional criticisms directed at the plaintiff. The defendant contended that the recommencement was improper and that no grounds for disqualification existed.

The court considered the principle that recommencing proceedings after withdrawal is permissible if the initial withdrawal did not prevent subsequent litigation. It found that the plaintiff's recommencement was not an abuse of process as the original withdrawal was not absolute. Regarding the judge's potential bias, the court examined whether the submissions made against the plaintiff by the defendant were so extreme as to suggest a departure from impartial decision-making. It concluded that the professional criticisms, while robust, did not reach the threshold of extreme conduct that would justify disqualification.

Ultimately, the court disqualified Justice Refshauge from hearing the proceedings, vacated the scheduled date for oral evidence, and ordered the matter to be listed for case management.