Baulkham Hills Shire Council v Basemount Pty Ltd

Baulkham Hills Shire Council appealed to the Court of Appeal of New South Wales against decisions of Pearlman J, which had dismissed the Council's appeals against development applications granted by a Commissioner of the Land and Environment Court. The central issue on appeal was whether the proceedings before Pearlman J should have been remitted to a different Commissioner due to a reasonable apprehension of bias.

The Court of Appeal was required to determine whether Pearlman J erred in law by failing to find that there was a reasonable apprehension of bias on the part of Commissioner Murrell, and consequently, whether the proceedings should have been remitted to another judicial officer for re-hearing.

The Court of Appeal found that Pearlman J had erred in law. It held that the evidence established a reasonable apprehension of bias on the part of Commissioner Murrell, based on his conduct and statements during the proceedings. The Court reasoned that the appearance of impartiality is as important as actual impartiality, and that the Commissioner's actions had undermined public confidence in the judicial process. Accordingly, the Court allowed the appeal, set aside the orders of Pearlman J, and remitted both proceedings to a Commissioner (other than Commissioner Murrell) or a Judge of the Court for re-hearing and re-determination. The respondents were ordered to pay the Council's costs in the proceedings before Pearlman J and the costs of the appeal, with a certificate available under the Suitors' Fund Act 1951.