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The appellant, Guozhong He, appeared in person. During the hearing he sought, orally and without notice, to add a ground alleging that the primary judge's conduct of the hearing manifested an apprehension of bias ([1]). That proposed ground was not in the notice of appeal. Nor was it in the amendment to the notice of appeal, which had been flagged by a notice of motion and lengthy affidavits supplied the day before the hearing ([1]).

The history recorded in the judgment was significant to the application. Mr He's written reply submissions contained material that could suggest such a ground was being raised, but paragraph 14 of those submissions expressly said: “The appellant does not presently seek appellate relief upon apprehended bias as an independent ground” ([1]). The judgment therefore describes a proposed new ground, not simply a clarification of an already pleaded ground.

When asked to identify the matters said to support the allegation, Mr He sought a short adjournment, which the Court granted ([2]). After the Court resumed, he identified two passages in the primary judge's reasons and two exchanges in the hearing transcript ([3]–[8]).

The first passage from the reasons concerned evidence about who signed a property contract and the intended purchaser. The second concerned Mr He's claim for loss, the evidence of the property's value and the estimate given by the agency used to sell it ([3]–[4]). The transcript passages concerned the primary judge asking Mr He to repeat a question during cross-examination, and an exchange during final address about whether he could ask opposing counsel about the caveat ([6]–[7]).

Leeming JA concluded that neither the reasons passages nor the transcript passages could give rise to an apprehension of bias ([5], [8]). The Court also considered that Mr He had not articulated the proposed ground with the required specificity, despite the short adjournment ([9]). Leeming JA considered that allowing the amendment would cause prejudice, delay and costs not warranted by what had been put forward ([10]). The application was refused ([11]–[13]).

The ruling was confined to whether Mr He could add this ground at that point in the appeal. It did not determine the substantive appeal or decide the parties' underlying dispute.

Why the court decided this way

The reasons identify several connected considerations, rather than announcing a general rule that late amendments must always be refused.

First, the Court emphasised the application's procedural history. The proposed ground had not been included in either the notice of appeal or the proposed amendment referred to in the judgment. Although the reply submissions contained material potentially pointing towards apprehended bias, they expressly disclaimed seeking appellate relief on that basis as an independent ground ([1]). Mr He then made the application orally and without notice during the hearing ([1]).

Second, the Court considered the absence of an explanation for the delay. Leeming JA described the application as being made “without any explanation for the delay” ([9]). The judgment does not record an explanation that would account for the ground being raised at that stage.

Third, the Court examined the material actually identified. It did not treat the seriousness of an apprehended-bias allegation as a substitute for identifying its factual basis. Mr He was asked to identify the matters said to support the allegation and received a short adjournment for that purpose ([2]). He then pointed to passages in the reasons and transcript ([3]–[8]). Leeming JA found the reasons passages could not support the allegation because they were reasons delivered after the hearing, whereas apprehended bias was focused on conduct during the hearing ([5]). The two transcript passages also did not, in the Court's view, support an apprehension of bias ([6]–[8]).

Fourth, Leeming JA considered the adequacy of the proposed ground's articulation. The conclusion was that Mr He could not identify the basis “by reference to anything like the specificity that is required of a ground of this nature” ([9]). The judgment does not set out a general test for the required specificity. Its finding is tied to the material and oral explanation offered in this application.

Finally, the Court considered the likely procedural consequences. Leeming JA said that allowing the application “could only cause prejudice, delay, and costs” and that these were not warranted by what had been put forward ([10]). These factors supported refusal alongside the lateness and lack of a sufficiently articulated basis.

Leeming JA also made a statement about the ethical obligations of legal practitioners. He said that if Mr He were a legal practitioner, the obligation to make serious allegations only with a proper basis would apply, and that Leeming JA's view would be to report him to the appropriate regulatory authority for consideration of whether there was unsatisfactory professional conduct or professional misconduct ([10]). The Court's stated disposition, however, was refusal of the amendment application ([11]–[13]). The regulatory comment was expressed hypothetically and is not the order made in the case.

Before and after state of the law

The judgment does not describe the state of the law before this decision, cite authorities on amendment of appeal grounds, or identify any legal rule that it changed. It therefore cannot, on its own, support a claim that the decision altered or clarified a broader doctrine of appellate amendment.

What it does provide is a fact-specific explanation of why this application failed. The Court considered the application's timing and manner, the absence of notice and an explanation for delay, the material identified in support, the specificity of the proposed ground, and the prejudice, delay and costs that allowing it would cause ([1]–[10]). The decision should be read at that level unless other legal sources are consulted.

The judgment also records Leeming JA's statement that apprehended bias is focused on conduct during the hearing rather than reasons delivered after the hearing ([5]). In this case, that distinction mattered because two of the passages relied on came from the primary judge's reasons. The judgment does not provide a fuller doctrinal account or cite authority for the statement, so its wider reach cannot be established from this text alone.

After this ruling, the immediate procedural position was that the proposed amendment was refused. Kirk JA and Ball JA agreed with Leeming JA ([11]–[13]). The judgment does not specify the subsequent course of the substantive appeal.

Key passages with plain-English translation

At paragraph [1], Leeming JA records that Mr He sought to amend orally and without notice, and that the new ground was absent from the notice of appeal and the amendment already flagged. In plain English, the proposed allegation was being raised at the appeal hearing even though the documents then defining the appeal did not include it.

Also at [1], the judgment quotes the reply submission: “The appellant does not presently seek appellate relief upon apprehended bias as an independent ground”. This mattered to the procedural context. The Court was not dealing with a ground already clearly advanced in the written appeal materials.

At [5], Leeming JA says apprehended bias is focused on conduct during the hearing, not reasons for judgment after the hearing. In plain English, the Court did not consider criticism or conclusions in the final reasons, by themselves, a basis for the proposed allegation in this application. The judgment does not elaborate on the general law beyond this statement.

At [6]–[8], the Court considers the transcript exchanges. One showed the trial judge asking Mr He to repeat a question that the judge considered uncertain, after which the question was repeated and answered ([6]). The other showed the judge's response when Mr He raised asking opposing counsel about the caveat during final address ([7]). Leeming JA concluded that neither exchange could give rise to an apprehension of bias ([8]). The conclusion is specific to these recorded passages.

At [9], Leeming JA characterises the application as made “without notice and without any explanation for the delay”, and says Mr He could not articulate the ground with the specificity required. In plain English, the Court considered both how late the application was and the lack of a sufficiently precise account of what supported it.

At [10], Leeming JA identifies prejudice, delay and costs as consequences of allowing the amendment. The paragraph also contains the hypothetical comment about a legal practitioner's ethical obligations. The operative result appears at [11]: Leeming JA proposed that the oral application be refused, and the other members of the Court agreed ([12]–[13]).

What fact patterns trigger this precedent

The decision is most directly relevant to a procedural situation sharing its key features: a party seeks to introduce a new appeal ground orally during the hearing; the ground was not set out in the notice of appeal or the proposed written amendment; the application comes without notice and without an explanation for delay; the party has an opportunity to identify supporting material but does not identify it with sufficient specificity; and allowing the amendment would cause prejudice, delay or costs ([1]–[10]).

The nature of the proposed ground also matters to the Court's reasoning. Mr He sought to allege apprehended bias. The passages he identified included both post-hearing reasons and exchanges during the hearing. Leeming JA treated the former as outside the relevant focus and considered that none of the identified passages was capable of supporting the allegation ([5]–[8]).

The judgment does not establish that every proposed late ground, every self-represented appellant's application, or every bias allegation will be refused. Nor does it say that any one of the factors identified will necessarily be decisive in another case. Its reasoning concerns the combination of circumstances before the Court and the material Mr He presented.

For professional analysis, the points to compare in another case are therefore the procedural record, the timing and notice of the application, any explanation for delay, the precise proposed ground, the material said to support it, and the likely procedural consequences. These are features the judgment itself considered, not an exhaustive checklist announced by the Court.

How later courts have treated it

The supplied judgment contains no discussion of subsequent decisions, and no later cases are provided with it. It is therefore not possible, on this source alone, to say how later courts have treated He v N & G Superannuation.

The judgment itself identifies no earlier cases or other legal authorities. The precedent-relationship field is accordingly empty. That absence should not be taken to mean that the decision has been followed, distinguished, or otherwise treated in a particular way. Establishing later treatment would require later judgments or a separate source that traces citations to this decision.

The available text does establish the composition of the Court and the disposition: Leeming JA gave reasons for refusing the application, and Kirk JA and Ball JA agreed ([11]–[13]). It is a NSW Court of Appeal procedural ruling, but the text alone does not establish its citation history, subsequent interpretation, or treatment beyond this case.

Still-open questions

Several matters remain unresolved by the judgment. It does not set out a general legal test for allowing amendments to appeal grounds, nor does it cite authority explaining how the factors it considered fit within any broader test. Its reasons should therefore not be expanded into a universal rule without consulting additional legal sources.

The judgment also does not give a full account of the legal test for apprehended bias. It states that the focus is on conduct during the hearing rather than reasons given afterwards ([5]), and it concludes that the specific passages identified were incapable of supporting the allegation ([5]–[8]). It does not address other possible forms of evidence or explain how a different factual basis might be assessed.

The reasons do not explain what notice or supporting material would have been sufficient in this case, or what explanation for delay might have affected the result. Nor do they quantify the prejudice, delay or costs anticipated from allowing the amendment ([10]). The judgment states the Court's assessment but does not provide further detail on those consequences.

Finally, the ruling does not say what happened to the substantive appeal after the amendment application was refused. It resolves only the procedural request described in the ex tempore reasons. Any account of the later appeal steps, or of subsequent judicial treatment of this ruling, would require additional sources.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.