Gillies v State of New South Wales (No.5)

In Gillies v State of New South Wales (No.5), the applicant, Gillies, sought the recusal of a judge on the grounds of actual bias and/or apprehended bias. The matter was heard in the New South Wales Supreme Court. The applicant alleged several acts of judicial conduct which demonstrated an apprehension of bias on the part of the judge. The judge had previously refused a recusal application by the same applicant. The applicant also alleged that a deceased defendant was removed from the proceedings as a matter of procedure, which caused no substantive harm to the plaintiff as a result of the State of NSW accepting vicarious liability. The applicant further alleged clandestine communication between the judge and legal representatives, which was purely the routine and procedural collection of information for an upcoming hearing. The applicant also claimed that a transcript of a hearing had been altered, but there was no motive for and evidence of such alteration existed.

The court considered the principles in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 and Ebner v The Official Trustee in Bankruptcy [2000] HCA 63. The court held that for actual bias, the judge must be so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. For apprehended bias, a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unbiased mind to the resolution of the question for determination. The court held that the applicant had failed to satisfy the legal tests for actual bias or apprehended bias. There was no factual basis for the allegations of the applicant as to actual bias or apprehended bias.

The court dismissed the motion for recusal. The court held that it was not obliged to make orders purely on the basis that the parties consented to them. The court held that the applicant had failed to satisfy the legal tests for actual bias or apprehended bias. The court dismissed the application for recusal.

No orders were made in relation to the application for recusal. The matter proceeded before the judge without any further challenges to the judge's impartiality.