Background
Mr Guozhong (Mark) He, self-represented, appealed a District Court decision (Habib DCJ, 27 November 2025) substantially upholding N & G Superannuation Pty Ltd’s claim and dismissing his own claim of economic duress concerning a contract for the sale of a unit. His amended notice of appeal raised seven grounds. The day before the 21 August 2026 hearing he moved to add an eighth ground (unconscionability); the Court reserved on that application. During the hearing he orally sought to add a ninth ground alleging apprehended bias by the primary judge. The Court refused that application, with Leeming JA giving ex tempore reasons (later published as He v N & G Superannuation Pty Ltd [2026] NSWCA 177), and reserved judgment on the appeal.
Two days later, by notice of motion filed 23 August 2026 (amended 1 October 2026), Mr He applied for Leeming JA and Kirk JA each to recuse himself for apprehended bias, and alternatively to reopen the hearing to add grounds alleging actual bias (prejudgment) and apprehended bias against the primary judge and to provide further submissions. Mr He initially sought determination on the written materials, then asked the Court to consider an oral hearing; the Court declined an oral hearing given the stage of the proceedings, the nature of the issues, and the volume of material supplied. The respondents, given the opportunity to file responsive materials, chose not to do so.
The Court’s Holding
In a joint judgment (Leeming, Kirk and Ball JJA), the Court refused all applications. Applying the Ebner test as elaborated in Director of Public Prosecutions (Vic) v Smith, the Court held that none of Mr He’s complaints against Leeming JA — the presiding judge’s clarification whether he was raising a bias ground, the five-minute adjournment (which Mr He himself requested), the refusal of the amendment, the closure of the issue in reply, and the “hypothetical regulator” remark in the Amendment Judgment — satisfied the first step of identifying a factor that might lead the judge to decide other than on the merits. The Court stressed that bias complaints must be made distinctly and clearly, for three reasons: such allegations are serious and require a proper basis; appeal courts generally must determine them first; and if upheld they ordinarily require a new trial (citing Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd and Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd).
As to Kirk JA, the Court held that his questioning — testing whether the primary judge’s adverse credit finding actually featured in later reasoning, and thanking Mr Morris for supplying the answer Mr He could not — was an attempt to clarify a factual issue and a manifestation of procedural fairness, not bias. Citing Antoun v The Queen, the Court noted that far more rigorous exchanges are consistent with fair process. On the recusal procedure, following QYFM v Minister for Immigration, each judge declined to recuse himself and the remaining members agreed, with reasons expressed jointly.
The Court refused the application to reopen, holding that amendment after hearing and reservation of judgment is permitted only in exceptional circumstances, and that Mr He — aware of the possible bias ground at least 12 days before the hearing, having expressly declined to raise it — faced a very high burden he could not discharge. While self-represented litigants must not suffer disadvantage, the Court’s duty is to ensure fairness for all parties (Hamod v New South Wales); the respondents had appeared to meet the case as pleaded. Weighing the Civil Procedure Act 2005 (NSW) ss 56–60 case management principles, the considerations against amendment were overwhelming. The Court also found Mr He had a practical and fair opportunity to present his appeal: his total submission time (88 minutes in chief plus about 44 minutes in reply) exceeded Mr Morris’s 92 minutes, and no sufficient reason justified the exceptional course of receiving further submissions after judgment was reserved.
Key Takeaways
- On these facts, a presiding judge’s efforts to clarify whether a self-represented appellant was raising a bias ground, and a five-minute adjournment the appellant requested, did not satisfy the first step of the apprehended-bias test.
- Judicial questioning to clarify whether a credit finding affected subsequent reasoning was, in this context, a manifestation of procedural fairness, not a basis for reasonable apprehension of bias.
- Amendment of a notice of appeal after hearing and reservation of judgment requires exceptional circumstances; awareness of a possible ground 12 days before hearing, and a deliberate choice not to raise it, weighed decisively against reopening.
- Fairness to self-represented litigants is balanced against fairness to all parties; the respondents were entitled to meet the case as pleaded within established procedural principles.
Why It Matters
The decision illustrates how Australian appellate courts apply the fair-minded lay observer test to recusal applications made after judgment is reserved, including the procedural approach (drawn from QYFM) where each challenged judge decides first and the remaining members then consider the issue, with joint reasons. It also reinforces that bias grounds must be distinctly and clearly articulated, given their seriousness and the consequence of a new trial if upheld.
For practitioners, the case underscores the near-insurmountable burden of reopening an appeal after reservation of judgment, the application of Civil Procedure Act case management principles to late amendments, and the court’s even-handed duty to self-represented and represented parties alike.