Donaghy v Council of the Law Society of NSW

BASTEN JA: The appellant in this matter is a legal practitioner practising as a solicitor in northern New South Wales. He was the subject of steps taken under the Legal Profession Act 2004 (NSW) by the Council of the Law Society in response to two complaints of unsatisfactory professional conduct. The circumstances in which the complaints arose and the manner in which they came before this Court, on an appeal by way of rehearing from the Civil and Administrative Tribunal, are more fully set out in the principal judgment in this Court.

The appeal was heard on 28 May 2015. At the conclusion of the hearing, the parties were given leave to file further material and written submissions to address the possibility that this Court, exercising its powers to dispose of the matter pursuant to s 75A of the Supreme Court Act 1970 (NSW), might deal with the appeal on the merits.

Mr Donaghy was given leave to file written submissions by Friday, 19 June 2015, which he did, albeit belatedly. The respondent was given leave to file further submissions by 10 July 2015, which it did. The appellant was given a right of reply to be exercised by 17 July 2015. Pursuant to submissions filed (late) on 24 July 2015, the respondent sought (though not by way of notice of motion) that I recuse myself.

I do not propose to take that step, for the reasons set out below.

The relevant legal principle is well known: the test for apprehension of bias, as stated in Johnson v Johnson [1] is “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.” The basis of the application must be judged against this undemanding but not negligible standard. As explained by the High Court in Livesey v New South Wales Bar Association [2] “it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.”

The application appeared to have two limbs, namely (1) that the steps taken by the Court at the hearing of the appeal were “extraordinary”, and (2) that I, as the presiding judge, should recuse myself because of a “longstanding association” with the barrister, Ms Graycar, who made the original complaints, which association should have been disclosed at the commencement of the hearing.

Whether the first point had any particular connection with the second was not entirely clear from the submissions. The circumstances in which the procedural course was adopted will appear more fully in the principal judgment of the Court. Suffice it to say that there was nothing untoward in the procedural steps.

The matter came before this Court on an appeal by way of rehearing. The Court therefore had all the powers of the Tribunal from which the appeal was brought. The matter involved no assessment of credibility of any person, nor did it raise any other issue of the kind which might engage the Court’s power to remit the matter for a further hearing by way of exception to the prohibition contained in the Uniform Civil Procedure Rules 2005 (NSW), r 51.53. Nevertheless, the Court did not, on 28 May 2015, determine that it would take any particular course: rather, it gave leave to the parties to file and serve further material and submissions directed to, amongst other things, “whether the Court should determine the matter itself rather than remit it to the Tribunal” and “if that course were taken, what orders the Court should make”.

Addressing the second point, namely my association with the complainant to the Law Society, the appellant relied on four matters, namely that (a) we had co-authored a journal article in 1983; (b) we were both former members of the Faculty of Law at the University of New South Wales; (c) we were both former members of the Australian Law Reform Commission and (d) we are both Fellows of the Australian Academy of Law.

That a prior association with a person involved in legal proceedings may form a valid ground for a recusal application may be accepted; however, whether in a particular case such an application is warranted will depend upon the particular circumstances involved in the association. In Bienstein v Bienstein [3] McHugh, Kirby and Callinan JJ stated:

Returning to the bases of the association, each of the factual allegations may be accepted (although I do not have personal knowledge of Ms Graycar’s fellowship of the Academy of Law). In the result, we were two authors of a journal article more than 30 years ago; if there were a period when we were contemporaneous members of the Law Faculty, it pre-dated 1983; if we were both members, I was a part-time Commissioner of the Law Reform Commission engaged for a particular reference, almost 30 years ago, not being a reference on which Ms Graycar was engaged nor (so far as I am aware) contemporaneously with her engagement.

The circumstances relied upon by the appellant fall well short of demonstrating any “substantial personal relationship” or indeed a significant professional relationship. There is no reason to think they should have been disclosed at any stage.

That factor aside, there is another missing element: as was noted in Michael Wilson & Partners Ltd v Nicholls [8] “an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided.” [9] In the present case, and in circumstances which are more fully explained in the principal judgment, by the time the matter came before the Tribunal, the appellant and the barrister were no longer in dispute; no issue was raised as to the credibility of the barrister; and although the barrister had made a complaint to the Law Society, the active party before the Tribunal was the Council of the Law Society – indeed, the barrister was not a party or a witness before the Tribunal. In that sense, the barrister had no immediate interest in the proceedings in the Tribunal.

Not only do the circumstances not give rise to the kind of substantial personal or professional relationship to which reference was made in Bienstein, nor does our limited association have any objective connection with the matters to be determined on the appeal.

For these reasons, I decline to recuse myself.