de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard

The Supreme Court of New South Wales, Court of Appeal, considered applications for the recusal of Gleeson JA in *de Robillard v Council of the New South Wales Bar Association* and *Council of the New South Wales Bar Association v de Robillard*. The dispute concerned allegations of apprehended bias against Gleeson JA, stemming from his alleged lack of independence due to associations with family members and other judges of the Supreme Court, and from his conduct during the hearing which the applicant claimed indicated prejudgment. A significant factor in the Court's consideration was that the recusal application was made approximately 10 weeks after judgment had been reserved and after the Court had given notice of the listing for judgment.

The primary legal issues before the Court were whether there was a reasonable apprehension of bias on the part of Gleeson JA, and whether the applicant had waived any right to object to his continued participation in the proceedings. The Court was required to assess the nature of the alleged associations and the conduct during the hearing against the established legal tests for apprehended bias, and to consider the timeliness of the recusal application in light of the potential for waiver.

Gleeson JA reasoned that the alleged associations with family members and other judges did not give rise to a reasonable apprehension of bias, as they did not demonstrate any actual or perceived lack of impartiality. Furthermore, his Honour found that the conduct during the hearing did not demonstrate prejudgment, but rather reflected a proper engagement with the issues. Crucially, the Court held that the significant delay in bringing the recusal application, particularly after judgment had been reserved and a date for its delivery had been set, constituted a waiver of any right to object to his Honour's participation. The Court applied the well-established principles regarding apprehended bias, which require a consideration of whether a fair-minded and informed observer would perceive a lack of impartiality, and the doctrine of waiver, which can preclude a party from raising objections that could and should have been raised at an earlier stage.

The recusal application was dismissed.