Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clark v Attorney General of New South Wales (Recusal Application No 2) [2023] NSWCA 209 Hearing dates: 22 August 2023 Decision date: 22 August 2023 Before: Basten AJA Decision: Refusal of recusal application Catchwords: PRACTICE AND PROCEDURE – recusal application – reasonable apprehension of bias – earlier rulings unfavourable to applicant in related proceedings – court limited to determining errors of law – no basis to find that a fair-minded lay observer might think that the judge might not bring an impartial mind to the determination of the case PRACTICE AND PROCEDURE – prohibition on judge sitting on appeal from own judgment – judicial review of decision of different judge – whether judicial review an "appeal" within Supreme Court Act 1970 (NSW), s 110 – whether claim that decision under review wrongly concluded that the matter had been dealt with in earlier judgment constituted an appeal from the earlier judgment Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), Pt 7, s 79(3) Supreme Court Act 1970 (NSW), s 110 Cases Cited: Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN (NSW) 380 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Category: Procedural rulings Parties: Peter Frederick Clark (Applicant in person) Attorney General of New South Wales (First Respondent) Supreme Court of New South Wales (Second Respondent) File Number(s): 2023/147395 Publication restriction: N/A Decision under review Court or tribunal: Supreme Court Jurisdiction: Criminal - administrative Citation: [2023] NSWSC 445 Date of Decision: 27 April 2023 Before: Sweeney J File Number(s): 2022/318414; 2023/5335 [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. BASTEN AJA: The applicant, Peter Frederick Clark, brought proceedings to review the decision of a single judge, Sweeney J, refusing to consider or further deal with an application made by Mr Clark under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"). 2. At the outset of the hearing, the applicant invited White JA and me to recuse ourselves, on two bases. The first was that each of us had sat (separately) on a judicial review application of an earlier decision to refuse an application by Mr Clark to inquire into a conviction under Pt 7 of the Appeal and Review Act, and that the present application was in effect an appeal from the earlier decisions. The second basis was that, having determined such a judicial review proceeding adversely to the applicant, we should recuse ourselves on the ground of apprehended bias. 3. At the applicant's suggestion, I indicated that I did not propose to recuse myself and would deliver reasons when judgment was delivered on the applicant's summons. These are my reasons for not recusing myself. Supreme Court Act, s 110 1. Section 110 of the Supreme Court Act 1970 (NSW) provides that a judge of appeal "shall not sit on the hearing of an appeal from a judgment given or an order made by himself or herself". 2. On its face, the present proceeding seeking to review a non-judicial function carried out by Sweeney J, (i) is not an appeal, (ii) is not an appeal from a judgment, and (iii) is not an appeal from a judgment of mine. 3. The applicant did not deny any of those propositions, but submitted that the practical effect of the proceedings fell into an analogous category. That was because the question for Sweeney J was whether the subject of his application for judicial review had in fact been properly and fully dealt with on three prior occasions involving similar applications under Pt 7. In other words, in determining that the present application should not be considered or dealt with, under s 79(3)(a) of the Appeal and Review Act, the judge had to decide whether the earlier applications, and the orders dismissing challenges by way of judicial review, had in fact addressed the issues properly and fully. That exercise was, on the applicant's submission, analogous to hearing an appeal from those decisions. We were therefore being required to review what was in effect an appeal from our earlier judgments. 4. I accept that there may be reasons for construing the term "appeal" in s 110(1) broadly so as to include proceedings by way of judicial review in the supervisory jurisdiction of the Court. [1] Similarly, although there are limited circumstances in which a judge of the court exercises an administrative (non-judicial) function, I would be inclined to accept that judicial review of a decision of a judge should not be undertaken by a court including the judge who made the decision. Nevertheless, by no form of reasoning by analogy can s 110 apply in the present case. That is because, as more fully explained in the substantive judgment, Sweeney J was not dealing with an "appeal" from the early judgments: it was no part of her function to decide whether the decisions of the Court dealing with earlier applications were right or wrong. Judicial review of Sweeney J's decision therefore had no element of determining an appeal from those earlier decisions. Apprehension of bias 1. The test of what may constitute a reasonable apprehension of bias is by no means rigorous. The court (and a judge of the court) is required to determine whether a fair-minded lay observer of the proceeding might think that the judge might not bring an impartial mind to the determination of the case. [2] 2. The fair-minded lay observer is to be credited with some understanding of the nature of the proceeding. The mere fact that a judge has decided another case involving one of the same parties adversely to that party in the past, is not sufficient to justify recusal. If, on the other hand, in a past case the judge has disbelieved the party and will be required to assess his or her credibility again when giving evidence in the second proceeding, recusal will usually be appropriate. However, that is not this case. First, the exercise of the supervisory jurisdiction is limited to a determination of whether the judge whose decision is under review made some error of law which appears on the face of the papers (including the judgment or reasons for decision), or seriously misconceived his or her function. A judge is able to undertake that function in relation to different determinations involving the same litigant, without any basis for forming a view in one which will prejudge a future application. Each application will turn on its own circumstances and will resolve a matter of law. If the circumstances are the same, the outcome should be the same: the administration of justice demands consistency. That will be so whether the parties are the same or different. There will usually be no basis in those circumstances for the fair-minded lay person to have concerns in the terms expressed above, as to the impartiality of the judge. As has already been explained, the issue in the present proceedings was not whether the judges who decided earlier proceedings did so correctly or incorrectly: it was whether Sweeney J determined the matter before her without committing a reviewable error. 3. There was no basis for a reasonable apprehension of bias. Accordingly, I declined to recuse myself. ********** Endnotes 1. Compare ruling on a "proceeding in the nature of an appeal" for the purposes of the Suitors' Fund Act 1951 (NSW): Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN (NSW) 380 at 381. 2. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]. 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: 06 September 2023