Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council (No.2)

[2008] NSWLEC 132

Land and Environment Court

of New South Wales

CITATION:

Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council (No.2) [2008] NSWLEC 132

PARTIES:

APPLICANT
Australian Lifestyle Corporation Pty Ltd
RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S):

11163 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Bias :- apprehension of bias; disqualification

CASES CITED:

Antoun v The Queen (2006) 80 ALJR 497
City of Canada Bay Council v Bonaccorso Pty Ltd (No.2) [2007] NSWCA 368
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Smits v Roach (2006) 227 CLR 423
Webb v The Queen (1994) 181 CLR 41

DATES OF HEARING:

31 March 2008-3 April 2008

EX TEMPORE JUDGMENT DATE:

3 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso SC
SOLICITORS
Malleson Stephen Jaques

RESPONDENT
Mr M Craig QC
SOLICITORS
B. Bilinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

3 April 2008

11163 of 2007 Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council (No.2)

EXTEMPORE JUDGMENT

1 His Honour: I have been asked by the Applicant to disqualify or “recuse” myself from further hearing this appeal, which commenced with an on-site visit last Monday.

2 The Applicant’s Notice of Motion is predicated on a series of events:


1. During Monday’s view, and again at the beginning of Tuesday’s hearing of this matter in the courtroom, I disclosed that I am a ratepayer in the Respondent Council’s area. It is to be noted that my house is not near the subject site.

2. During informal discussions on site on Monday, I also disclosed that as a part-time resident of Bowral I had visited the Bowral home of the Council’s solicitor, Mr Bilinsky, a long-time acquaintance.

3. Also on site on Monday I learned for the first time that one of the neighbour-objectors in this matter is a former political colleague of mine, Mr Graham Richardson. I have subsequently read various letters written by Mr Richardson and his wife, and tendered in evidence before the court, objecting to the proposed development, but I pause to stress that I have had no personal dealings with Mr Richardson for many years, and had no prior knowledge of his ownership of a property in the vicinity of the subject site. I did, however, understand, before Monday, that he owned a property somewhere in the Southern Highlands.

4. I was not aware until after court adjourned yesterday, that Mr Richard Smyth had had some involvement with Council in its assessment of the application now before the court. Mr Smyth was my departmental head when I was Minister for Planning & Environment during 1984; we have remained friends, and we speak and mix socially reasonably often. He dropped in on me yesterday after court to discuss a personal matter in the privacy of my Chambers. He disclosed to me on arrival that he had had some earlier involvement in the assessment, but studiously refrained from saying anything else about the matter during our meeting. As he left my Chambers I saw him encounter the Applicant’s legal team, but I had no further involvement with him or them as they departed. With the wisdom of hindsight, the timing of Mr Smyth’s personal visit to me was, at least, unfortunate.


3 All of these events are described in the affidavit sworn and filed by the Applicant in support of the oral Notice of Motion, and it is submitted that the cumulative result of them is the satisfaction of the necessary test for me to apply to my decision on the question of whether or not I should recuse myself from further hearing of this case, on the grounds of apprehended bias.

4 It is the series of events, viewed particularly in light of the Smyth event, upon which the Applicant relies, but I have thought it wise to put all four events into some personal context.

5 The decision to withdraw from a major trial as it enters its 4th and probably final day, is not to be lightly made, as a positive decision will inevitably result in cost, delay and inconvenience to all concerned.

6 The clearly obvious, or easily proven, “innocence” of any relevant circumstances or events matters not. Nor does it matter that a judge might be, as I am here, confident, in all the circumstances, that he could bring an independent mind to the matter. Justice must not only be done, but be clearly seen to be done.

7 The appropriate principles for me to apply in making such a serious decision are clearly stated in several High Court cases to which reference has been made during argument, such as:

· Webb v The Queen (1994) 181 CLR 41
· Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (especially at pars 3-20)
· Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
· Antoun v The Queen (2006) 80 ALJR 497
· Smits v Roach (2006) 227 CLR 423

8 Many of those cases concern judges who have been seen or alleged to have had a relevant professional involvement with either or both of subject matter and parties, usually before the hearing, and the discussion by Tobias JA in his 14 December 2007 judgment in City of Canada Bay Council v Bonaccorso Pty Ltd (No.2) [2007] NSWCA 368 has been particularly useful to me today.

9 The test is the same whatever the circumstances relied upon for the application, namely:

Would a fair-minded lay observer, acquainted with the relevant facts, reasonably apprehend that it was possible that I would not bring an independent mind to the determination of this appeal?

10 It is the possibility, real and not remote, of an apprehension being reasonably formed by a fair-minded lay person observing the behaviour, events or circumstances complained of, which is the test, but that possibility must be “firmly established” (per Kirby J in Jia Legeng at 549 [135]).

11 I am satisfied that the relevant lay observer would form such an apprehension at this point in this case, and I, therefore, recuse myself from further dealing with the matter.

12 [Discussion as to further disposition of appeal].

13 Thank you gentlemen, I make the following orders:

1. That the hearing of this matter be re-listed on an expedited basis, subject to dates available to the Court being suitable to Galasso SC and Craig QC, Counsel for the parties.
2. That the parties have liberty to approach the Registrar, for the purpose of such re-listing and any necessary pre-trial directions, on 24 hours notice.
3. That the parties should have recourse to the relief under the Suitors Fund Act if found to be so entitled.
4. That all Exhibits be returned to the parties, except Exhibits A5, A6, A7, and C16.
5. That the parties have general liberty to apply on 72 hours notice.