Donaghy v Council of the Law Society of NSW

Judgment

1. 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.
2. 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.
3. 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.
4. I do not propose to take that step, for the reasons set out below.
5. 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."
6. 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.
7. 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.
8. 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".
9. 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.
10. 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: "[33] Relevantly to the present matter, a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. [4] But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice. In Re Polites; Ex parte Hoyts Corporation Pty Ltd, [5] this Court held that even a prior relationship between a legal adviser and client does not generally disqualify the legal adviser, on becoming a member of a court or tribunal, from sitting in proceedings in which the client is a party. In the normal case (of which this is an illustration), it is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise. Similarly, ordinarily interaction (social or otherwise) between a practising lawyer who becomes a judge and other members of the legal community in that city does not itself give rise to an apprehension of bias if one of those members is involved in proceedings before the judge. Cases might arise where the conventional rules that govern such professional associations have been exceeded and require the judge to disqualify himself or herself. [6] But Hayne J did not err in refusing to disqualify himself on the ground relied on by Mrs Bienstein. [34] … [35] In Re JRL; Ex parte CJL, [7] Mason J said: 'Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.' [36] A judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established."
11. 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.
12. 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.
13. 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.
14. 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.
15. For these reasons, I decline to recuse myself.

Endnotes

1. (2000) 201 CLR 488; [2000] HCA 48 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
2. (1983) 151 CLR 288 at 294; [1983] HCA 17.
3. [2003] HCA 7; 195 ALR 225.
4. Emanuele v Emanuel Investments Pty Ltd (1997) 139 FLR 36.
5. (1991) 173 CLR 78; [1991] HCA 25.
6. cf Kennedy and Cahill [1995] FLC s92-605.
7. (1986) 161 CLR 342 at 352; [1986] HCA 39.
8. (2011) 244 CLR 427; [2011] HCA 48 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ).
9. See also at [63], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8] and see Isbester v Knox City Council [2015] HCA 20 at [21] (Kiefel, Bell, Keane and Nettle JJ) and [59] (Gageler J). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2015