COURTS AND JUDGES — ACTUAL AND APPREHENDED BIAS — Application for recusal — On multiple grounds — Combination of actual and apprehended bias — Application refused — Suggestion in Re Green Estate Australia Pty Ltd [2026] NSWSC 1028 that because of application itself and threats of appeals and complaints that a reasonable lay observer might think the Judge might be biased in favour of the moving party not applied or followed
1A prior professional relationship between a judge (as barrister) and a party's solicitors, without more, does not give rise to apprehended bias; a fair-minded observer with knowledge of the legal profession would not regard such a historical retainer as material.
2The reasoning in Re Green Estate Australia Pty Ltd [2026] NSWSC 1028 — that a recusal application accompanied by threats of appeals and complaints might cause a fair-minded observer to apprehend the judge would 'overcompensate' in favour of the applicant — is profoundly wrong; if correct, every recusal application coupled with such a threat would be self-fulfilling, and judges are required to be robust in the face of personal criticism.
3A cumulative series of adverse interlocutory rulings, even if erroneous, does not without more establish apprehended bias; the fair-minded observer would recognise them as rulings on the merits susceptible to appellate correction, not evidence of a closed mind.
