Council of the New South Wales Bar Association v de Robillard

The Council of the New South Wales Bar Association sought to appeal a decision of the Supreme Court of New South Wales. The core of the dispute concerned an application for the recusal of a judge, based on an apprehension of bias arising from a costs order previously made by a Registrar in the same proceedings. The appeal was heard by Ward P, Leeming, and Adamson JJA of the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issue before the Court of Appeal was whether the making of a costs order by a Registrar, in circumstances where the substantive application had been dismissed, gave rise to a reasonable apprehension of bias on the part of the judge who was to hear the appeal against that dismissal. This required the Court to consider the nature of a Registrar's role in making costs orders and whether such an order could pre-determine an issue in the substantive proceedings, thereby creating a bias.

The Court of Appeal reasoned that a Registrar's power to make costs orders is a procedural one, distinct from the determination of the substantive merits of the case. The Court held that the Registrar's decision on costs did not indicate any pre-judgment of the appeal itself. The principles applied focused on the objective test for apprehended bias, which requires considering whether a fair-minded lay observer, knowing the relevant facts, would apprehend that the judge might not bring an impartial mind to the issues the judge is to decide. The Court found that the Registrar's costs order did not satisfy this test.

Consequently, the application for recusal was dismissed.