Judges deny request to give more submissions or allege actual and apprehended bias
The Court of Appeal of the New South Wales Supreme Court has declined applications for two judges to recuse themselves and to provide further submissions, including additional appeal grounds alleging actual and apprehended bias against the primary judge.
He v N & G Superannuation Pty Ltd acting as trustee for N & G Superannuation Trust (No 2) [2026] NSWCA 236 arose from a District Court decision concerning a dispute involving a contract for the sale of land, which prompted an appeal by the appellant.
Through a notice of motion filed two days after the appeal hearing, the appellant wanted Leeming JA and Kirk JA to recuse themselves for reasonable apprehension of bias.
The appellant also applied to amend his notice of appeal to allege apprehended and actual bias against the primary judge and to have leave to reopen the case to provide further submissions.
In ex tempore reasons, Leeming JA denied the application. Kirk and Ball JJA, the two other members of the appeal court, agreed.
On 6 November 2026, the NSW Court of Appeal dismissed the appellant’s amended notice of motion filed on 1 October 2026.
Thus, the appeal court refused the requests to recuse the two judges, to re-open the appeal hearing, and to allow the appellant to give more submissions, including to assert both actual and apprehended bias against the primary judge.
In the circumstances and where Leeming JA and Kirk JA had each declined to recuse himself, the NSW Court of Appeal considered it appropriate for the bench’s remaining members to tackle the issue regarding both judges.
The appeal court deemed it appropriate and efficient to combine the reasons of all three judges in a joint judgment.
Regarding the points raised pertaining to Leeming JA, the appeal court said none satisfied the first step in an apprehended bias argument. The appeal court saw no matter potentially leading him to resolve the issues on some basis other than their legal and factual merits.
Regarding the points raised in connection with Kirk JA, whether considered cumulatively or individually, the appeal court found no matter meaning that a fair-minded lay observer might reasonably apprehend that he might not impartially resolve the issues.
Considering the case management principles in ss 56–60 of the Civil Procedure Act 2005 (NSW), the NSW Court of Appeal saw overwhelming considerations weighing against permitting the proposed addition of appeal grounds.
The appeal court pointed out that it had previously ruled on the appellant’s application to add a ground for apprehended bias.
The NSW Court of Appeal held that the appellant had “a practical and fair opportunity to present his substantive appeal.”
Given the case management principles in ss 56–60 of the Civil Procedure Act, the appeal court saw no sufficient reason in the circumstances for the exceptional course of permitting further written submissions.
On 17 September 2026, the Court of Appeal of the Supreme Court of New South Wales issued a decision upholding an admission board’s two decisions effectively refusing a request for readmission to the legal profession sought by a man removed from the roll of lawyers over a decade ago.
On 15 June 2026, the NSW Court of Appeal adjourned the hearing of a motion for leave to issue a subpoena requiring the former president of the Law Society of New South Wales to attend and provide evidence in the substantive proceedings.
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