Lambourne v Baker (No 8)

1. [1]

   These reasons for judgment deal with the applicants’ application that I recuse myself.

2. [2]

   I will briefly summarise the circumstances in which the application has been made, briefly summarise the relevant principles and then explain why I declined to recuse myself.

Background matters

1. [3]

   The hearing of the substantive proceeding took place on Tuesday 25 March 2025, before a Court constituted by Adamson JA, Ball JA and myself. The proceedings involve an application by the applicants for a review of orders and decisions made by Price AJA on 25 November 2024. The applicants sought a review under s 46(4) of the Supreme Court Act 1970 (NSW) and r 51.58 of the Uniform Civil Procedure Rules 2005 (NSW).

2. [4]

   The Court reserved its judgment.

3. [5]

   By email dated at 9:41am on Wednesday 26 March 2025 the parties were informed by my associate that judgment would be delivered at 10:15am on Thursday 27 March 2025.

4. [6]

   Mr Lambourne, acting on behalf of the applicants, sent an email to my associate at 12:49pm on 26 March 2025. He referred to the fact that judgment would be delivered the following day and proceeded to set out various matters relating to the conduct of the hearing which he contended provided a basis to seek the recusal of Adamson JA and myself. Mr Lambourne formally asked the Court not to hand down its judgment until Friday 28 March 2025 so that he had time to make a formal application for Justice Adamson and myself to recuse ourselves “from any further participation in the hearing, including the publication of the Reasons”.

5. [7]

   The parties were notified by an email sent by Justice Adamson’s Chambers at 5:06pm on 26 March 2025 that the Court would hear any application for recusal at 10:15am the following day.

6. [8]

   On 27 March 2025, the Court was constituted again by Adamson and Ball JJA and myself. Mr Lambourne confirmed that the applicants sought the recusal of both Adamson JA and myself. He was invited to make submissions in support of the application. He then sought an adjournment with a view to providing written submissions and other materials in support of the application, noting that he had not had access to the transcript of the hearing on 25 March 2025. The application for an adjournment was refused. Mr Lambourne was again invited to make submissions in support of the recusal applications. He declined to do so.

7. [9]

   At that point, I indicated that I would not accede to the recusal application and would provide reasons for my decision in due course. These are those reasons.

8. [10]

   Having regard to Mr Lambourne’s email dated 26 March 2025, the matters relied upon by the applicants in support of their application that I recuse myself may be described as follows:

9. [11]

   Some of these matters are directed to me personally while others are directed to the Court as a whole.

The relevant principles summarised

1. [12]

   The principles concerning an application for recusal of a judicial officer on the basis of apprehended bias are now very well settled. They are described in cases such as Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 and were recently summarised by Gleeson JA in de Robillard v Council of New South Wales Bar Association [2024] NSWCA 298 at [6]-[8] which, for convenience, are now set out:

Disposition

1. [13]

   Applying the relevant principles to the circumstances here, I declined to recuse myself for the following reasons. None of the matters raised by the applicants provided any basis for a reasonable apprehension on the part of a reasonably informed lay observer that I might not bring a fair and unprejudiced mind to the performance of my judicial task in hearing and determining the proceedings in which the applicants are involved.

2. [14]

   In particular:

Conclusion

1. [15]

   Having regard to all these matters, I considered that the applicants failed to establish any of the three steps described at [12] above. Accordingly, I declined to recuse myself.