Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clark v Attorney General of New South Wales (No 2) [2020] NSWCA 135 Hearing dates: On the papers Date of orders: 7 July 2020 Decision date: 07 July 2020 Before: Basten JA, Macfarlan JA, McCallum JA Decision: Dismiss the applicant's amended notice of motion seeking to reopen the judgment of the Court delivered on 30 April 2020. Catchwords: CRIME – appeal and review – powers of Supreme Court judge – review of decision to dismiss an application for an inquiry under the Crimes (Appeal and Review) Act 2001 (NSW), s 79(3) – whether judge who sat on an appeal from the applicant's conviction disqualified from sitting on judicial review proceeding PRACTICE AND PROCEDURE – bias rule – whether judge who sat on an appeal from the applicant's conviction disqualified from sitting on judicial review proceeding PRACTICE AND PROCEDURE – bias rule – whether reasons for final judgment can be relied on to sustain allegation of apprehended bias – whether reasons disclose actual bias Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79 Supreme Court Act 1970 (NSW), ss 69, 101, 110; Pt 7 Cases Cited: Clark v Attorney General of New South Wales [2020] NSWCA 70 Clark v R [2014] NSWCCA 236 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Michael Wilson & Partners Ltd v Nichols (2011) 244 CLR 427; [2011] HCA 48 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, 2017, LawBook Co Category: Procedural and other rulings Parties: Peter Frederick Clark (Applicant) Attorney General of New South Wales (Respondent) Representation: Counsel: Peter Frederick Clark (self-represented) Solicitors: Crown Solicitors Office (Respondent) File Number(s): 2019/365282 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Application by Peter Frederick Clark pursuant to s 78 of the Crimes (Appeal and Review) Act 2001, [2019] NSWSC 1277 Date of Decision: 24 September 2019 Before: Rothman J File Number(s): 2017/312454 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: The applicant is a convicted prisoner who, having exhausted his rights of appeal, made an application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act") seeking an inquiry into his convictions. On 24 September 2019 a judge of the Court, Rothman J, declined to consider or otherwise deal with the application, pursuant to the power conferred by s 79(3) of the Appeal and Review Act. The applicant sought judicial review of that decision in this Court. On 30 April 2020 the Court dismissed his application. [1] 2. On 5 May 2020 the applicant filed a notice of motion (dated 1 May) seeking to reopen that judgment. He also filed what was described as an affidavit, sworn on 1 May 2020, but which was in substance a submission in support of his notice of motion. His white folder contained an amended notice of motion dated 5 May 2020. 3. On 14 May 2020 the applicant filed material which he indicated would be relied upon at a rehearing of his judicial review application. He also stated that his amended notice of motion should be listed for hearing. 4. Having considered the material in support of the motion, the Court is satisfied that the matter may be disposed of without seeking a response from the Attorney and without a further hearing. Ground 1 – constitution of court 1. The first basis on which the applicant sought to have the judgment reopened was that McCallum JA had been a member of the Court of Criminal Appeal which considered and dismissed an appeal against conviction brought by the applicant in 2014. [2] The applicant submitted that McCallum JA was not competent to sit on the proceeding in this Court, and should have recused herself. Her failure to do so was said to constitute a miscarriage of justice. 2. Although the applicant referred in his submissions to s 101(1) of the Supreme Court Act 1970 (NSW), the section quoted was s 110(1), which provides: 110 Disqualification of Judge of Appeal (1) A Judge of Appeal, or a Judge appointed or nominated under section 36 to act as an additional Judge of Appeal, shall not sit on the hearing of an appeal from a judgment given or an order made by himself or herself. 1. The proceeding in this Court was not an appeal within the meaning of that term in Pt 7 (ss 101 – 110) of the Supreme Court Act, dealing with appeals to the Court of Appeal. Rather, it was a proceeding in the original jurisdiction of the Court brought pursuant to s 69 of the Supreme Court Act and in the Court's supervisory jurisdiction. Nevertheless, it may be accepted that the principle stated in s 110 should apply to proceedings by way of judicial review of decisions of a judge of the court exercising a function such as that conferred by s 79 of the Appeal and Review Act. Applying the principle by analogy, it would follow that the judge who dealt with the application under Pt 7 of the Appeal and Review Act, Rothman J, could not have sat on the judicial review proceedings. He did not do so. 2. The purpose of an application under Pt 7 of the Appeal and Review Act is not to determine the correctness or otherwise of a judgment of the Court of Criminal Appeal in a particular matter. That function can only be exercised by the High Court of Australia, following a grant of special leave to appeal. The function being exercised under Pt 7 of the Appeal and Review Act is, rather, to determine whether, despite exhaustion of the appeal procedures, there is a doubt or question as to the convicted person's guilt. [3] If the matter upon which reliance is placed has been fully dealt with in an earlier appeal from the conviction, the application may be refused without further consideration. [4] Even an extended reading of s 110 does not require that a judge who sat on a court of criminal appeal dismissing an appeal from a conviction, later sought to be the subject of an inquiry under Pt 7 of the Appeal and Review Act, could not properly sit on a subsequent proceeding in the supervisory jurisdiction challenging the refusal to direct an inquiry or, indeed, to consider or otherwise deal with the application for an inquiry. 3. Accordingly, the first ground on which it is sought to reopen the judgment of this Court should be rejected. Ground 2 – partiality and bias 1. The factual basis for the challenge outlined in ground 2 was that McCallum JA had used "emotive language" in her reasons, which demonstrated a failure to deliver a judgment free of partiality or bias. 2. The submissions then identified as a test for disqualification the principles stated in Ebner v Official Trustee in Bankruptcy in the following terms: [5] "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge …, the governing principle is that, subject to qualifications relating to waiver …, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide." 1. Reliance on this principle was misconceived. As the opening words in the quotation explain, it does not apply to a case involving "actual bias". On the other hand, if the applicant's intention were to assert a reasonable apprehension of bias, that assertion cannot properly be based on the reasons given for final judgment. Those reasons reflect a judgment based on the evidence and submissions before the court, not pre-judgment arising prior to the hearing of the case. [6] 2. The test of apprehension of bias identified in Ebner is objective and does not require or permit an assessment of the judge's state of mind. Actual bias is addressed quite differently. As explained in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability: [7] "A claim of actual bias requires proof that a decision-maker approached the issues with a closed mind or had prejudged them and, for reasons of either partiality in favour of a party or some other form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand. … Actual bias requires an assessment of the state of mind and actual views of a decision-maker." 1. Speaking generally, a statement of strong conviction in reasons for final judgment as to any issue arising in the proceeding will not demonstrate actual bias. There are countless circumstances in which a claim may be dismissed in peremptory terms, the judge's conclusion being expressed in terms that the claim was hopeless, misconceived, or (in language adopted in standard rules of court) frivolous or vexatious, or an abuse of the process of the court. [8] In fact, any of those terms may aptly be used with respect to ground 2 in the notice of motion. Ground 2 must be rejected. Conclusion 1. There being no basis to conclude there are grounds to reopen the judgment, the Court makes the following order: Dismiss the applicant's amended notice of motion seeking to reopen the judgment of the Court delivered on 30 April 2020. ********** Endnotes 1. Clark v Attorney General of New South Wales [2020] NSWCA 70. 2. Clark v R [2014] NSWCCA 236. 3. Appeal and Review Act, s 79(2). 4. Appeal and Review Act, s 79(3)(a)(i). 5. (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 6. Michael Wilson & Partners Ltd v Nichols (2011) 244 CLR 427; [2011] HCA 48 at [73] (Gummow ACJ, Hayne, Crennan and Bell JJ). 7. (6th ed, 2017, LawBook Co) at [9.30]. 8. Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2020