Clark v Attorney General for New South Wales [2023] NSWCA 212

Clark v Attorney General for New South Wales [2023] NSWCA 212

Section 110(1) of the Supreme Court Act 1970 (NSW) was inapplicable because the application was not an appeal from a judgment given by White JA. White JA's prior involvement in earlier judicial review proceedings concerning a similar application did not give rise to a reasonable apprehension that he would not bring an impartial mind to the present application, particularly where the principal issue concerned Sweeney J's exercise of power under s 79(3), which was not in issue in the 2022 proceeding; repetition of previously rejected arguments might be expected to fail, but not because of bias or prejudice.

Jurisdiction
Australia
Judgment Date
22 August 2023
Procedural Posture
Application for Judicial Review of a Decision Refusing an Inquiry Into Conviction Under S 78 of the Crimes (appeal and Review) Act 2001 (nsw) / Application for Disqualification or Recusal of White JA
Outcome
Application for disqualification refused.
Legal Topics
['bias Rule' 'apprehended Bias' 'prejudgment' 'judicial Disqualification' 'judicial Review' 'inquiry Into Conviction Under Crimes (appeal and Review) Act 2001 (nsw)']
['administrative Law' 'procedural Law'] ['bias Rule' 'apprehended Bias' 'prejudgment' 'judicial Disqualification' 'judicial Review' 'inquiry Into Conviction Under Crimes (appeal and Review) Act 2001 (nsw)']

Case Brief

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Procedural Posture

Application for Judicial Review of a Decision Refusing an Inquiry Into Conviction Under S 78 of the Crimes (appeal and Review) Act 2001 (nsw) / Application for Disqualification or Recusal of White JA

Legal Issues

  1. 1 ['Whether s 110(1) of the Supreme Court Act 1970 (NSW) prevented White JA from sitting on the application.' "Whether White JA's prior involvement in judicial review proceedings concerning refusal of an earlier application for an inquiry into Mr Clark's conviction gave rise to a reasonable apprehension of prejudgment or lack of impartiality."]

Ratio Decidendi

Section 110(1) of the Supreme Court Act 1970 (NSW) was inapplicable because the application was not an appeal from a judgment given by White JA. White JA's prior involvement in earlier judicial review proceedings concerning a similar application did not give rise to a reasonable apprehension that he would not bring an impartial mind to the present application, particularly where the principal issue concerned Sweeney J's exercise of power under s 79(3), which was not in issue in the 2022 proceeding; repetition of previously rejected arguments might be expected to fail, but not because of bias or prejudice.

Court Disposition

Application for disqualification refused.

Orders

  • ['The application to recuse White JA is refused.']