Australia, June 20 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

1. This matter was listed before me this morning for hearing of the respondent's notice of motion seeking orders that the Applicant's application for victimisation be summarily dismissed.

2. Minutes before commencing the hearing this morning of that notice of motion, I received notification from the Commission's registry that the Applicant had submitted two documents to the Commission by email for filing, namely a notice of motion and an affidavit in support, affirmed by the applicant on 17 May 2025.

3. Normally the notice of motion would not be entertained ahead of the Respondent's notice of motion, it having not been filed or served prior to the listing of the Respondent's motion. However, the second order sought by the applicant in the motion is that I recuse myself from any further involvement in these proceedings due to "concerns of apprehended bias as outlined in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337".

4. A court, or a Commission, faced with allegations of apprehended bias should address the issue of bias first, as the necessary result, if bias is established, is a retrial: Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 at [2] - [3], [117]. Further, an application for disqualification can be made without the filing of a formal motion: Barton v Walker [1979] 2 NSWLR 740; Bainton v Rajski (1992) 29 NSWLR 539. In those circumstances I determined that, despite the Applicant's motion not being filed, I must first consider whether I should disqualify myself from any further involvement in the matter before hearing the Respondent's motion.

5. I called the matter on for hearing at around 10.10am and confirmed with the Applicant's solicitor, Mr Thakur, who appeared by AVL, that I should determine whether to disqualify myself before hearing the Respondent's motion. Mr Poberezny-Lynch for the Respondent agreed with this course but indicated that I should rule on that question immediately and, if I declined to disqualify myself, I should proceed to hear the Respondent's motion.

6. I agreed with the Respondent that this was the most appropriate course. However, I noted that the notice of motion attached some 20 odd pages of submissions that I really needed to read in order to understand the basis upon which the disqualification application was put and so I proposed that I would stand the matter down for a short while to enable me to read the material. At that time I also did not appreciate that the affidavit filed in support of the motion ran to some 205 pages, contrary to Practice Note 32, the length being due to the annexure to the affidavit of the transcript of the proceedings on 20 March 2005, 4 April 2005 and 15 April 2025.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196f0da0d1b27ce514693f97)

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