Waterhouse v Independent Commission Against Corruption (No 3)

In *Waterhouse v Independent Commission Against Corruption (No 3)*, the applicant, Waterhouse, sought the disqualification of Basten JA from hearing an appeal. The basis for the application was an apprehended bias arising from Basten JA's prior association with a former member of the Independent Commission Against Corruption (ICAC) who had been involved in the decision-making process under review.

The central legal issue before the Court was whether the association between Basten JA and the former ICAC member gave rise to a reasonable apprehension of bias in the mind of a fair-minded lay observer, thereby necessitating the judge's recusal. This required the Court to consider the nature and extent of the association and its potential impact on the impartiality of the judicial process.

Basten JA applied the well-established test for apprehended bias, which requires determining whether a fair-minded lay observer, having considered the facts, would apprehend that the judge might not bring an impartial mind to the issues the judge is to decide. His Honour found that the association with the former ICAC member, while acknowledged, did not create a sufficient connection or influence that would lead a reasonable observer to conclude that his impartiality was compromised. The judge's reasoning focused on the independence of the judicial role and the absence of any actual or perceived predisposition stemming from the prior professional relationship. The application for recusal was declined.