Bankstown City Council v Attalah

[2000] NSWLEC 105

Land and Environment Court

of New South Wales

CITATION:

Bankstown City Council v Attalah & Anor [2000] NSWLEC 105

PARTIES:

APPLICANT
Bankstown City Council

RESPONDENT
Attalah & Anor

FILE NUMBER(S):

40107A of 1998

CORAM:

Cowdroy J

KEY ISSUES:

Orders :- Disqualification - bias

LEGISLATION CITED:

CASES CITED:

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

DATES OF HEARING:

28/4/00

EX TEMPORE
JUDGMENT DATE :

04/28/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Wilson (Barrister)

SOLICITORS
Marsdens Solicitors

FIRST & SECOND RESPONDENTS
Mr W Hodgekiss (Barrister)

SOLICITORS (FIRST & SECOND RESPONDENTS)
Westside Lawyers

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40107A of 1998
CORAM: Cowdroy J
DECISION DATE: 28 April 2000

Bankstown City Council

Applicant

v

Joseph Attallah

First Respondent

&

Jacqueline Walsh

Second Respondent

JUDGMENT

1. In this matter counsel for the respondents, Mr Hodgekiss has requested that I disqualify myself from hearing the proceedings before the Court today on the ground that as an Acting Judge I determined the proceedings from which the order dated 25 September 2000 was made.

2. Having considered in detail the judgment which was given on 25 September 1998, it is very apparent that there were no real issues in contest. There was no question of determination of credit. The only issue was whether the Court should exercise its discretion to extend time in which to permit the illegal activity to be continued. Arising out of that matter it seems that there was no question upon which any adverse findings of credit or otherwise was made against either of the respondents in those proceedings.

3. If there was a reasonable apprehension that the Court could not bring an unbiased mind to the decision to be made in the current proceedings, it is obvious that the I would have to disqualify myself from hearing the matter and appoint another Judge.

4. However, as considered in the judgment of Justices Gaudron and McHugh in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100, a decision of the High Court of Australia, it is clear that a reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry. That principle applies in the current proceedings. I am satisfied that the mere fact the question of extension of time concerning the illegal use was considered by the Court in the principal proceedings number 40107 of 1998, does not give rise to a reasonable fear of unfair or prejudiced mind to the issues now before the Court. The present issue is confined to whether the respondents in the original proceedings have complied with the Court's order.

5. For that reason, the application is dismissed.