Alphatex Australia v The Hills Shire Council

[2009] NSWLEC 1104

Land and Environment Court

of New South Wales

CITATION:	Alphatex Australia v The Hills Shire Council [2009] NSWLEC 1104
PARTIES:	APPLICANT Alphatex Australia RESPONDENT The Hills Shire Council
FILE NUMBER(S):	11120 of 2008
CORAM:	Moore SC
KEY ISSUES:	PROCEDURAL FAIRNESS :- Recusal application
CASES CITED:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675
DATES OF HEARING:	11 and 12 March 2009
EX TEMPORE JUDGMENT DATE:	12 March 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso SC INSTRUCTED BY Hannafords Lawyers RESPONDENT Mr C Leggat SC INSTRUCTED BY Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

12 March 2009

08/11120 Alphatex Australia v The Hills Shire Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: In this matter, I am now dealing with an application by the respondent council that I should recuse myself from taking further part in the proceedings on the basis of an apprehension of bias.

2 The apprehension of bias is said to arise from a statement I made at the commencement of the on-site taking of evidence from resident objectors, there being in evidence notes from the respondents solicitor that I made a statement to the effect that I am not allowed, as a matter of law, to consider moral issues. That statement is contained in notes of evidence that were admitted, without objection, as Exhibit 7 in these proceedings – although it is agreed by the advocates for the parties that the remarks that appear on page 3 of those notes ought to have been recorded as having occurred at the commencement of the on-site process.

3 I am asked to recuse myself on the basis that, the council submits, a fair-minded lay-observer might reasonably apprehend that, in this case, I might not bring an impartial mind to the resolution of the question I am required to decide – this being the relevant test as discussed by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 at para 6.

4 I have been taken to a variety of cases as to whether or not the proposition that I stated was an accurate (what I consider to be) an anticipatory and preventative ruling about the admissibility of the evidence that might have been going to be given to me on the site. The correctness or otherwise of the statement may or may not be a matter in which I might have correctly or otherwise fettered the matters that sought be in evidence before me.

5 It is, in my view, appropriate to consider what actually followed in the conduct of the on-site hearing and whether the evidence that was permitted to be given by the residents enabled them, correctly and appropriately, to give evidence about impacts on amenity and such proper issues of social impact of a proposed develop application of the nature discussed by Stephen J (at para 17 of his reasons) in the High Court’s decision in Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675.

6 I consider that the totality of the circumstances of what actually took place (as shown from the notes of evidence) would be what would be considered by a fair-minded lay-observer under the circumstances rather than a single, as I describe it in my own words, anticipatory and restrictive ruling about the admissibility of evidence. Under all of the circumstances, without needing to canvas all of the authorities put to me, I decline to recuse myself.

Tim Moore
Senior Commissioner