Law Society of NSW v Doherty

The Law Society of New South Wales sought the disqualification of Justice Tobias from hearing an appeal on the grounds that a fair-minded lay observer might reasonably apprehend that his Honour might not bring an impartial and unprejudiced mind to the resolution of the issues. The dispute concerned allegations of professional misconduct against a solicitor, and the appeal related to the findings of the Solicitors Disciplinary Tribunal. The application for recusal was heard by Justice Tobias himself.

The central legal issue before Justice Tobias was whether the apprehended bias, as alleged by the Law Society, was sufficient to warrant his disqualification from presiding over the appeal. This required an assessment of whether the perception of a fair-minded lay observer, having been informed of all relevant circumstances, would lead to a reasonable apprehension that the judge might not be impartial.

Justice Tobias applied the well-established test for apprehended bias, which requires a consideration of whether there are circumstances that would lead a reasonable and informed member of the public to apprehend that the judge might not bring an impartial mind to the question. His Honour reviewed the material presented by the Law Society and concluded that the grounds for apprehension were not made out. He found that the concerns raised did not demonstrate any actual or apparent bias that would prevent him from impartially determining the appeal.

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