Clarke v Herrick [2021] NSWCA 102

Clarke v Herrick [2021] NSWCA 102

Leave to appeal was refused because the applicant did not identify any arguable basis for concluding that the primary judge's credibility-based factual findings were glaringly improbable or contrary to compelling inferences, and her complaint about the tendency and coincidence notice showed no prejudice because she...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 May 2021
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From District Court of New South Wales Judgments Dismissing Civil Claims for Damages
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['leave to Appeal' 'assault and Battery' 'appellate Review of Credibility Findings' 'apprehended Bias' 'recusal' 'tendency and Coincidence Evidence']
['appeals' 'courts and Judges' 'torts' 'evidence'] ['leave to Appeal' 'assault and Battery' 'appellate Review of Credibility Findings' 'apprehended Bias' 'recusal' 'tendency and Coincidence Evidence']

Source-derived case record

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From District Court of New South Wales Judgments Dismissing Civil Claims for Damages

Legal Issues

  1. 1 ["Whether the applicant identified an arguable basis for concluding that the primary judge's rejection of her evidence and dismissal of her assault and battery claims was glaringly improbable or contrary to compelling inferences." "Whether any error in rejecting the applicant's notice under ss 97(1) and 98(1) of the Evidence Act 1995 (NSW) caused prejudice." 'Whether White JA should recuse himself on the ground of apprehended bias because he had made an adverse ruling against the applicant in previous litigation.']

Ratio Decidendi

Leave to appeal was refused because the applicant did not identify any arguable basis for concluding that the primary judge's credibility-based factual findings were glaringly improbable or contrary to compelling inferences, and her complaint about the tendency and coincidence notice showed no prejudice because she had been permitted to lead the evidence she said comprised tendency evidence. White JA declined to recuse himself because the applicant could not identify why his prior adverse ruling in unrelated litigation might cause a fair-minded lay observer reasonably to apprehend that he would not bring an impartial mind to the present application.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Application for leave to appeal dismissed with costs.' 'White JA declined to recuse himself from participating in the hearing of the application.']