Lu v Walding [2020] NSWLEC 94

Lu v Walding [2020] NSWLEC 94

Given the relatively recent and ongoing indirect association between the judge and the applicant's expert witness, a fair-minded lay observer might reasonably apprehend that the trial judge might not bring an impartial and independent mind to the assessment of the expert's evidence. Therefore, the judge must recuse herself to preserve the appearance and actuality of impartiality.

Jurisdiction
Australia
Judgment Date
17 July 2020
Procedural Posture
Class 4 Judicial Review Proceedings / Application for Recusal on the Ground of Apprehended Bias
Outcome
Application for recusal on the ground of a reasonable apprehension of bias upheld; judge disqualified herself from hearing the matter.
Legal Topics
['apprehended Bias' 'recusal of Judge' 'association With Expert Witness' 'development Consent' "landowner's Consent" 'environmental Planning and Assessment Act 1979']
['administrative Law' 'environmental Law' 'judicial Process'] ['apprehended Bias' 'recusal of Judge' 'association With Expert Witness' 'development Consent' "landowner's Consent" 'environmental Planning and Assessment Act 1979']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Application for Recusal on the Ground of Apprehended Bias

Legal Issues

  1. 1 ["Whether a reasonable apprehension of bias arises due to the trial judge's indirect association with the applicant's expert witness" 'Whether the trial judge should recuse herself in these circumstances']

Ratio Decidendi

Given the relatively recent and ongoing indirect association between the judge and the applicant's expert witness, a fair-minded lay observer might reasonably apprehend that the trial judge might not bring an impartial and independent mind to the assessment of the expert's evidence. Therefore, the judge must recuse herself to preserve the appearance and actuality of impartiality.

Court Disposition

Application for recusal on the ground of a reasonable apprehension of bias upheld; judge disqualified herself from hearing the matter.

Orders

  • ['The judge disqualifies herself from hearing the matter and will inform the Registry for reallocation to another judge.' 'The judge will make further procedural orders as consented by the parties to prepare the matter for final hearing next week.']