Lambourne v Baker (No 10)

File Number(s): 2019/407870

JUDGMENT

1. THE COURT: This judgment deals with an application for an adjournment made by Mr Lambourne on 27 March 2025. Further background is given in Lambourne v Baker (No 7) [2025] NSWCA *, which dealt with one of the substantive applications in respect of which Mr Lambourne sought an adjournment.

2. At the commencement of the hearing on 27 March 2025, Mr Lambourne was invited to make any application he wished to make for recusal of one or more judges of the Court. He indicated that he wished to make an application in respect of Adamson JA and Griffiths AJA, but not with respect to Ball JA. However, Mr Lambourne sought an adjournment of his applications so that he could obtain the transcript of the proceedings heard on 25 March 2025 and prepare written submissions and an affidavit in support of the application.

3. Mr Lambourne’s application for an adjournment was refused with reasons to follow. The reasons for the Court’s refusal of the application are as follows.

4. An application for recusal must be made as soon as reasonably possible on the basis of the material to hand. There is no need for the formality of a notice of motion: Bainton v Rajski (1992) 29 NSWLR 539 at 543 (Mahoney JA, Cripps JA agreeing). Whether there is an apprehension of bias must be assessed “at the time of the event … said to give rise to the possibility” and not with the benefit of hindsight: Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260 (Feldman) at [41] (Bell P, Macfarlan and Payne JJA agreeing).

5. The hearing of the application was listed at short notice less than 24 hours after the application had been foreshadowed and less than 48 hours after the substantive hearing of Mr Lambourne’s notice of motion was completed. It was apparent from his email (extracted in [7] of Lambourne v Baker (No 7)) that Mr Lambourne had a good recollection of the details of what had been said in the course of the hearing which prompted him to seek the recusal of two out of three members of this Court.

6. There was, in these circumstances, little to be gained by an adjournment and more to be lost in that the immediate recollection of those present was bound to fade. While a transcript is a useful record and aide-memoire, an adjournment to permit Mr Lambourne to pore over it to prepare written submissions would not necessarily have produced any more than the matters recorded in his email which was broadly contemporaneous with the hearing. Further, in order to deal with the application, it was necessary that the Court constitute itself with the same judges as comprised the Court on 25 March 2025. The other demands on judges of the Court who are listed to sit on different appeals on different days may have required a substantial adjournment. Thus, the administration of justice also weighed in favour of the refusal of an adjournment.

7. Further, Mr Lambourne’s right to seek special leave to appeal to the High Court from this Court’s judgment on the motion (Lambourne v Baker (No 6) [2025] NSWCA 45), which was delivered after the refusal of his recusal application, is not jeopardised by the refusal of the adjournment. If he is able to obtain special leave to appeal to the High Court and to establish that the applications for recusal were wrongly refused, the orders made by this Court will be set aside.

Order

8. For the reasons given above, the Court made the following order on 27 March 2025:

9. Refuse Mr Lambourne’s application for an adjournment of his respective applications that Adamson JA recuse herself and that Griffiths AJA recuse himself.

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