Lambourne v Baker (No 8)

File Number(s): 2019/00407870

Publication restriction: Nil

JUDGMENT

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

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

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).

4. The Court reserved its judgment.

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.

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”.

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.

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.

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.

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:

(a) my question asked of Mr Lambourne in the course of his oral address at the hearing as to what evidence the applicants had to support his claim that the Headnote to the reasons for judgment in Lambourne v Baker (No 5) [2024] NSWCA 241 had been prepared by the Court had “put him off his train of thought” and “could have no legal possible bearing on the case”; (b) that the Court “seemed to be prepared to hear the case without relevant documents”; (c) an allegation that the Court failed to address an issue raised by Mr Cheshire SC, who appeared for the respondents, relating to a matter put to the Court in Lambourne v Baker (No 5) and arising from the meaning of an order made on 24 September 2021 in Lambourne v Baker [2021] NSWCA 229; (d) the Court did not take the “usual morning adjournment” and “was obviously focused on completing the hearing within the two hours”; and (e) the Court refused to allow Mr Lambourne time to gather his thoughts and provide written submissions in reply.

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

The relevant principles summarised

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:

[6] As is well-established, the test to be applied on an application for recusal on the basis of apprehended bias 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”: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[7] The application of the “double might” test requires two steps: first, the identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question; and second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits: Ebner at [8], Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [32] –[33].

[8] Only then can the reasonableness of the asserted apprehension of bias be assessed. This is sometimes referred to as the third step: Ebner at [8]; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59] (Gageler J); Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [21] (Kiefel CJ and Gageler J).

Disposition

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.

14. In particular:

(a) The question I put to Mr Lambourne in oral address relating to the authorship of the Headnote arose in the context of Mr Lambourne having made an oral submission twice that the Headnote to the reasons for judgment in Lambourne v Baker (No 5) had been “drafted by the Court itself” (see T7, L26 and 47). The question was asked in circumstances where the normal practice is for a headnote not to be drafted by the Court itself, but by Chambers staff. This is why a headnote does not form part of the Court’s reasons for judgment. This fact was explicitly highlighted at the beginning of the Headnote in Lambourne v Baker (No 5), as it is in every judgment of the Court of Appeal. A reasonably well-informed lay observer would be aware of these matters.

I also consider that, in these circumstances, the reasonably informed lay observer would appreciate that the question was intended to assist Mr Lambourne in understanding that the contents of the Headnote were not “critical to the public confidence in the administration of justice” because they were not drafted by the Judges. The question exposed the lack of a factual foundation for his claims in this regard.

(b) The applicants have not particularised the claim that the Court “seemed to be prepared to hear the case without relevant documents”. At the commencement of the hearing, the presiding judge described the materials which were before the Court. Mr Lambourne stated that he had no objection to that material being considered by the Court. The material included the very detailed written submissions provided by the parties. The applicants have pointed to no particular additional documents which ought to have been included in the material before the Court. (c) It is equally difficult to see how the alleged failure by the Court to address the issue relating to the proper construction of the order made on 24 September 2021 concerning costs gives rise to apprehended bias. An informed lay observer would appreciate that there is no obligation on the Court to “address” every issue during the course of a hearing, as opposed to addressing relevant and substantive issues in the Court’s ultimate reasons for judgment. (d) Nor is there any factual foundation for the applicants’ complaint that “the usual morning adjournment” was not taken and that the Court was “obviously focused on completing the hearing within the two hours”. The lay observer would know that the general practice of the Court of Appeal is not to take a morning adjournment. The hearing here commenced, as usual, at 10:15am and finished at 12:10pm. The parties had previously been informed that the estimated time for the hearing was 2 hours which is appropriate for any application of the kind made by the applicants. (e) The Court gave Mr Lambourne a 20 minute adjournment for him to gather his thoughts before making oral reply submissions and to hear his submissions on costs. When the hearing resumed, Mr Lambourne asked that he be given leave to file written submissions in reply. The Court briefly adjourned to consider that application and then indicated that the application was declined for reasons which were explained by the presiding judge at T21. Mr Lambourne was then invited to make oral submissions, both in reply to the respondents’ oral submissions as well as on costs, and he declined to do so.

Conclusion

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.

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