Australia, July 7 -- New South Wales Land and Environment Court issued text of the following judgement on June 6:

1. MITCHELMORE AND ADAMSON JJA: On the morning of the second day of the hearing of the appeal in this matter, counsel for the third respondent made an application that Price AJA recuse himself. The basis of the recusal application was apprehended bias. The judgment of Price AJA below sets out the background to the recusal application, the basis on which it was made and the arguments that counsel for the third respondent advanced in respect of it.

2. The test for apprehended bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 ("Ebner") at [6] is whether "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". The test requires, first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and, second, an articulation of the "logical connection between the matter and the feared deviation from the course of deciding the case on its merits": Ebner at [8]. Only then can the reasonableness of the asserted apprehension of bias be assessed: Ebner at [8], see also eg Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59]; Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11].

3. The apprehension of bias on which the third respondent relied was said to arise from the circumstance that Price AJA was a member of the Court of Criminal Appeal in Croft v R [2021] NSWCCA 146 (the conviction appeal). The applicant in that matter, Mr Geoffrey Croft, was the second defendant in the proceedings the subject of the present appeal until his death in 2022. The convictions the subject of his appeal to the Court of Criminal Appeal, which was dismissed, included convictions for offences against the appellant in the present appeal, MTH, and another individual, RS. MTH relied on the offending conduct of Mr Croft in her claims against the respondents (with Mr Croft's estate taking the place of Mr Croft as a party following his death).

4. Price AJA's judgment below demonstrates that the test for apprehended bias was not made out. In particular, no logical connection was articulated between his Honour sitting on the Court of Criminal Appeal in the conviction appeal and the feared deviation from the course of deciding the present appeal on its merits.

5. The premise of the connection on which the third respondent relied was flawed. Counsel for the third respondent submitted that it rested on his Honour having been satisfied, in the conviction appeal, that there was no miscarriage of justice and "with that goes, in a sense, satisfaction that the processes that be established a conviction and therefore established the guilt of the late Mr Croft". As Price AJA explains below, Mr Croft's two grounds of appeal were narrowly drawn and their determination did not involve a detailed review of the evidence in the trial (as an unreasonable verdict ground of appeal may have done) or any consideration of miscarriage of justice.

6. The feared deviation was said to relate to his Honour's consideration of the evidentiary significance of Mr Croft's convictions, which has been raised as an issue in the present appeal. There was no logical connection between his Honour dismissing an appeal from those convictions and the feared deviation on which the third respondent relied, particularly when the nature of the conviction appeal is properly understood. The fact that the conviction appeal was determined adversely to Mr Croft was not of itself sufficient to ground the logical connection required, which counsel for the third respondent implicitly recognised by not relying on that matter alone.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1973d9c9c243a2ef4d7974c4)

Disclaimer: Curated by HT Syndication.