Clark v Attorney General for New South Wales (No. 2) [2023] NSWCA 3

Clark v Attorney General for New South Wales (No. 2) [2023] NSWCA 3

The application to set aside the earlier order is dismissed because the applicant has not demonstrated any misapprehension of fact or law by the Court, nor established grounds of actual or apprehended bias warranting recusal. The application effectively seeks to reargue matters already determined and does not meet the conditions for exercise of power under r 36.16(3A).

Jurisdiction
Australia
Judgment Date
03 February 2023
Procedural Posture
Notice of Motion (application) in Appellate Proceedings / Post Judgment; Application to Set Aside Appellate Order
Outcome
Notice of motion filed on 14 November 2022 is dismissed with costs.
Legal Topics
['setting Aside Judgments' 'bias and Apprehended Bias' 'judicial Review' 'jurisdictional Error']
['civil Procedure'] ['setting Aside Judgments' 'bias and Apprehended Bias' 'judicial Review' 'jurisdictional Error']

Case Brief

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Procedural Posture

Notice of Motion (application) in Appellate Proceedings / Post Judgment; Application to Set Aside Appellate Order

Legal Issues

  1. 1 ['Whether the same panel of judges should hear the notice of motion to set aside their own earlier order, in view of allegations of actual and apprehended bias' 'Whether the order dismissing the original summons for judicial review should be set aside pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A)']

Ratio Decidendi

The application to set aside the earlier order is dismissed because the applicant has not demonstrated any misapprehension of fact or law by the Court, nor established grounds of actual or apprehended bias warranting recusal. The application effectively seeks to reargue matters already determined and does not meet the conditions for exercise of power under r 36.16(3A).

Court Disposition

Notice of motion filed on 14 November 2022 is dismissed with costs.

Orders

  • ['Notice of motion dismissed with costs.']