Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v O’Haire [2019] NSWLEC 158

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v O’Haire [2019] NSWLEC 158

The recusal application failed because, objectively, the judge's remarks identified concerns and issues for procedural fairness and did not demonstrate prejudgment; the fair-minded lay observer would not reasonably apprehend a lack of impartiality. The slip rule application failed because, although r 36.17 applies in Class 5 proceedings through r 5.2(2)(h) of the Land and Environment Court Rules 2007, the transcript showed that guilty pleas were deliberately entered and recorded on 19 July 2019, not as a clerical mistake or accidental slip by the Court. More fundamentally, the entry of a guilty plea is not itself a judgment or order of the Court, because no conviction or determination of...

Jurisdiction
Australia
Judgment Date
29 October 2019
Procedural Posture
Class 5 Criminal Proceedings Concerning Charges Under the Water Management Act 2000 / Notice of Motion Seeking Correction of Recorded Guilty Pleas Under the Slip Rule, With an Application for Recusal on the Grounds of Apprehended Bias
Outcome
Application for recusal on the grounds of apprehended bias refused. Notice of motion dismissed. Costs reserved.
Legal Topics
['slip Rule' 'entry of Guilty Pleas' 'apprehended Bias' 'recusal' 'class 5 Jurisdiction' 'water Allocation Licence Offences']
['criminal Law' 'environmental Law' 'water Law' 'civil Procedure' 'judicial Bias'] ['slip Rule' 'entry of Guilty Pleas' 'apprehended Bias' 'recusal' 'class 5 Jurisdiction' 'water Allocation Licence Offences']

Case Brief

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Procedural Posture

Class 5 Criminal Proceedings Concerning Charges Under the Water Management Act 2000 / Notice of Motion Seeking Correction of Recorded Guilty Pleas Under the Slip Rule, With an Application for Recusal on the Grounds of Apprehended Bias

Legal Issues

  1. 1 ['Whether the judge should recuse herself on the grounds of apprehended bias by reason of alleged prejudgment.' 'Whether the recusal application should be adjourned to allow the defendant to obtain a transcript of the hearing.' "Whether r 36.17 of the Uniform Civil Procedure Rules 2005 applies to criminal proceedings in Class 5 of the Court's jurisdiction." 'Whether the entry of guilty pleas is a judgment or order amenable to correction under the slip rule.' "Whether the defendant's recorded guilty pleas were entered because of a clerical mistake or an error arising from an accidental slip or omission."]

Ratio Decidendi

The recusal application failed because, objectively, the judge's remarks identified concerns and issues for procedural fairness and did not demonstrate prejudgment; the fair-minded lay observer would not reasonably apprehend a lack of impartiality. The slip rule application failed because, although r 36.17 applies in Class 5 proceedings through r 5.2(2)(h) of the Land and Environment Court Rules 2007, the transcript showed that guilty pleas were deliberately entered and recorded on 19 July 2019, not as a clerical mistake or accidental slip by the Court. More fundamentally, the entry of a guilty plea is not itself a judgment or order of the Court, because no conviction or determination of...

Court Disposition

Application for recusal on the grounds of apprehended bias refused. Notice of motion dismissed. Costs reserved.

Orders

  • ['Application for recusal on the grounds of apprehended bias refused.' 'Notice of Motion dismissed.' 'Costs reserved.']