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Apprehended bias November 18, 2015

Jensen Laundry Systems Australia Pty Ltd v Raskopoulos [2015] NSWCA 352

22 The question raised by the application for disqualification on the basis of apprehended bias was whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31]. As the plurality judgment then observed at [63], it is necessary for the party asking a judge to disqualify him or herself, having identified the conduct said to give rise to the apprehension of bias through pre-judgment, to articulate the connection between that conduct and the possibility of departure from impartial decision-making with respect to the questions to be decided. See also Barakat v Goritsas (No 2) [2012] NSWCA 36 at [12] per Basten JA.

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