By Stuart Eustice, Partner and Ashleigh Shankly, Lawyer

On 23 April 2025, Mr Susman (the applicant) filed a summons seeking an order that Justice Garde recuse himself from the proceeding. On 8 July 2025, the primary judge dismissed the recusal summons. The applicant then sought leave to appeal, contending that the judge erred in law by failing to recuse himself despite circumstances giving rise to a reasonable apprehension of bias.

The recusal application was made on the basis of ostensible (apprehended) bias, not actual bias. The allegation centred on the judge’s conduct and management of the proceeding, commencing from when the matter first came before his Honour.

The primary judge referred to the High Court’s decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner), stating that the governing principle is that 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.

On appeal, the applicant advanced two grounds. The first was that the trial judge erred in law in failing to recuse himself despite circumstances giving rise to a reasonable apprehension of bias, contrary to the principles established in Ebner. The second ground of appeal was subsequently abandoned.

In support of the first ground, the applicant particularised 13 instances which, he argued, demonstrated that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the matters before him. He relied on statements made by the trial judge in court and on the judge’s conduct and management of the proceeding.

The applicant submitted that, when considered cumulatively and collectively, these matters constituted apprehended bias such that a fair-minded lay observer, with knowledge of all the circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the remaining procedural issues before trial and/or at trial. He ultimately acknowledged that only three of the instances might individually amount to apprehended bias.

The Court of Appeal observed that, in the 13 paragraphs of particulars under Ground 1, the applicant made a myriad of complaints about the judge’s conduct and management of the proceeding but found no substance in those complaints. The Court noted that the primary judge had determined a considerable number of interlocutory steps against the applicant, but emphasised that:

1. A fair-minded lay observer would understand that the determination of interlocutory disputes does not require a judge to balance outcomes evenly between the parties;
2. When the proceeding is viewed in its entirety, the applicant had also achieved significant successes in applications determined by the same judge; and
3. A fair-minded lay observer, examining how each interlocutory dispute was heard and decided, could only conclude that the matters were dealt with by a hardworking, fair-minded, independent judicial officer doing his best to resolve each issue appropriately and impartially.

The Court of Appeal upheld the primary judge’s decision, agreeing that the recusal application had been correctly dismissed. Leave to appeal was subsequently refused, highlighting the threshold for succeeding in such applications remain, understandably, very high.