Donaghy v Council of the Law Society of NSW

An application for recusal was made by the appellant, Mr Donaghy, against a judge of the Supreme Court of New South Wales. The application was based on an alleged reasonable apprehension of bias arising from the judge's association with a complainant in proceedings before the court. The Court of Appeal of New South Wales was required to determine whether the appellant's apprehension of bias was substantial and whether the judge's connection with the complainant was such that it would lead a fair-minded lay observer to conclude that the judge might not bring an impartial mind to the resolution of the questions to be decided.

The Court of Appeal considered the principles governing applications for recusal, particularly the test for a reasonable apprehension of bias. This test requires an objective assessment of whether there is a real possibility that the judge might be biased, based on the facts as they appear to a fair-minded and informed member of the public. The court examined the nature and extent of the judge's association with the complainant and considered whether this association was sufficiently close or relevant to the matters in dispute to give rise to a perception of bias.

The Court of Appeal ultimately refused the appellant's application for recusal. The court found that while there was an association between the judge and the complainant, it was not of a nature or degree that would lead a fair-minded lay observer to apprehend that the judge might not be impartial in deciding the case. The court concluded that the connection was not substantial enough to create a reasonable apprehension of bias.