BW v Secretary, Department of Communities and Justice & Ors [2024] NSWSC 1354

BW v Secretary, Department of Communities and Justice & Ors [2024] NSWSC 1354

A fair-minded lay observer might reasonably apprehend that the Children's Court Magistrate might not bring an impartial mind to the determination of whether the Plaintiff had engaged in sexual abuse of MX and thus to the ultimate decision regarding care orders. The reasons given by the Magistrate for refusing recusal did not adequately address the matters raised or the applicable test. Relief was warranted on grounds of jurisdictional error (apprehended bias) and, in the alternative, error of law on the face of the record.

Parties
Plaintiff: BW; First Defendant: Secretary, Department of Communities and Justice; Second Defendant: MK; Third Defendant: BA; Fourth Defendant: Children's Court of NSW; Fifth Defendant: Attorney General
Jurisdiction
Australia
Judgment Date
28 October 2024
Procedural Posture
Judicial Review / Judgment From Supreme Court Following Challenge to Magistrate's Refusal to Recuse Herself on Basis of Apprehended Bias
Outcome
Application granted
Legal Topics
Judicial Review, Apprehended Bias, Children's Court, Procedural Fairness, Adequacy of Reasons
Administrative Law Child Welfare Law Judicial Review Apprehended Bias Children's Court Procedural Fairness Adequacy of Reasons

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Parties

BW

Plaintiff

Secretary, Department of Communities and Justice

First Defendant

MK

Second Defendant

BA

Third Defendant

Children's Court of NSW

Fourth Defendant

Attorney General

Fifth Defendant

Procedural Posture

Judicial Review / Judgment From Supreme Court Following Challenge to Magistrate's Refusal to Recuse Herself on Basis of Apprehended Bias

Legal Issues

  1. 1 Whether the Magistrate's conduct gave rise to reasonable apprehension of bias such that she should recuse herself
  2. 2 Whether the Children's Court Magistrate's reasons for refusing recusal were adequate under law

Ratio Decidendi

A fair-minded lay observer might reasonably apprehend that the Children's Court Magistrate might not bring an impartial mind to the determination of whether the Plaintiff had engaged in sexual abuse of MX and thus to the ultimate decision regarding care orders. The reasons given by the Magistrate for refusing recusal did not adequately address the matters raised or the applicable test. Relief was warranted on grounds of jurisdictional error (apprehended bias) and, in the alternative, error of law on the face of the record.

Court Disposition

Application granted

Orders

  • Pursuant to s 69 of the Supreme Court Act 1970 (NSW), quash the judgment of Magistrate Richardson of the Children's Court declining to recuse herself from further hearing proceedings 2020/00273771.
  • Order in the nature of prohibition prohibiting Magistrate Richardson from further hearing proceedings 2020/00273771.