City of Canada Bay Council v Bonaccorso Pty Ltd (No.2)

The Court of Appeal of New South Wales considered an application by the City of Canada Bay Council for the Honourable Justice Tobias to recuse himself from hearing an appeal. The application was based on apprehended bias, arising from Justice Tobias having provided advice to the respondent, Bonaccorso Pty Ltd, in the same matter when he was a barrister some years prior to his appointment as a judge.

The central legal issue before the Court of Appeal was whether Justice Tobias's prior involvement as counsel in the matter gave rise to a reasonable apprehension of bias, necessitating his recusal from the appeal. This required the court to assess the nature of the advice given by Justice Tobias as a barrister and to consider whether the intervening changes in the proceedings, and the different issues before him as a judge, were sufficient to dispel any such apprehension.

In determining the application, the court applied the well-established test for apprehended bias, which requires consideration of whether a fair-minded lay observer, knowing the facts, would perceive a real possibility that the judge might not bring an impartial mind to the decision. Justice Tobias reasoned that the nature of the proceedings had significantly evolved since he provided advice as a barrister, and the issues he would be required to determine on appeal were distinct from those he had advised upon. He concluded that his prior involvement did not create a reasonable apprehension of bias.

Consequently, Justice Tobias declined to recuse himself from the hearing of the appeal.