Recusal application - Apprehension of bias - Applicable principles

What has happened?

On 7 November 2017, the NSW Land and Environment Court considered an application by the Applicant in a Class 3 compensation appeal (Alexandria Landfill Pty Ltd and Boiling Pty Ltd v Roads and Maritime Services [2017] NSWLEC 148):

  1. that the Judge allocated to hear the case recuse himself; and
  2. that the Commissioner allocated to the case be ordered not to sit with whichever replacement judge is allocated.

The ground said to support the application was "apprehended bias on account of prejudgment".

This was based on an earlier decision by the same Judge and Commissioner in a compensation appeal relating to the compulsory acquisition of land adjoining that under consideration in this case.

In dismissing the application, the Court set out a useful reminder of the approach it will adopt in consider a recusal application.

Findings by the Court

The starting point is the "double might" test set out by the High Court in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (Ebner):

"... a judge is disqualified if 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 application of the test involves 2 steps:

  1. "the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits"; and
  2. "an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." 

The High Court has emphasised that "... because the test is objective, it is important to keep an inquiry about an apprehension of bias distinct from any inquiry about actual bias": see Michael Wilson & Partners Limited v Nicholls [2011] HCA 48.

Finally, in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2, the High Court held: 

"... the reasonable apprehension of bias goes to confidence in the courts on the part of litigants and the public, who will not have access to details of the substantive law and all relevant aspects of the practice and procedure of the courts. In determining whether an apprehension of bias has a reasonable basis, the courts are asked to see themselves as others, not judges or lawyers, would see them." 

Applying these principles, the Court determined that the application should be refused and in so doing made the following observations of general application:

  1. most, if not all, of the issues decided in the earlier judgment, and said to give rise to an apprehension of bias on account of prejudgment, were “property-specific” or “proceeding-specific”;
  2. even if similar issues raised in the earlier judgment also arose in the present case, the relevant requirement is that "a judge must apply an open mind, not an empty one”;
  3. the Land and Environment Court "is a small specialist court, in which the Class 3 list will often include several cases 'overlapping' as to the public purpose involved"; and
  4. "[t]he hypothetical observer is presumed to be fair-minded, and to be aware of [the] of relevant context. While ... he or she is not considered to have detailed knowledge of the law, or the judicial personnel involved, he or she may well see some utility in engaging decision-makers familiar with locations and issues ...".


As the Court pointed out, it is not usual for a number of compensation appeals concerning land located in close proximity and acquired for the same public purpose to be heard in its Class 3 jurisdiction.

This decision provides a reminder of the general principles to be considered in a recusal application and some useful specific insights into how they will applied in the Land and Environment Court's Class 3 jurisdiction.

Further information

For further information on this judgment and its potential implications for your development please contact Marcus Steele, Director, on (02) 8005-1411 or