Administrative Law – Prerogative writs and orders – Prohibition – Generally – Statutory Board of Inquiry – Board to report findings and recommendations to Minister – Legislative requirement to observe the rules of natural justice – Board provided to person affected a draft report with detailed findings, and sought submissions – Whether denial of procedural fairness because opportunity to respond came at too late a stage – Whether an apprehension of bias on the basis of prejudgment – Neither complaint made out before the primary judge – No error established on appeal.

Reece v Webber [2011] FCAFC 33, 192 FCR 254, considered; Mitchell v Georges [2014] UKPC 43, distinguished.
Aust Dig Administrative Law [1228]

REPRESENTATION:
Counsel:
             Appellant:  S B McElwaine SC
             First Respondent:  No appearance
             Second Respondent:  No appearance
             Third Respondent:  M E O'Farrell SC and J Rudolf
Solicitors:
             Appellant:  Shaun McElwaine + Associates
             Third Respondent:  Solicitor-General for the State of Tasmania

Judgment Number: [2017] TASFC 12
Number of paragraphs: 68

Serial No 12/2017
File No 2753/2017

PETER FRANCIS THOMAS BROOKS v BARRY MAXWELL EASTHER,
NORMA LYNN MASON,
ACTING ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT FULL COURT

SLICER AJ
MARSHALL AJ
PORTER AJ
15 November 2017

Orders of the Court

Appeal dismissed.

The order made by Brett J on 4 October 2017, restraining the first and second respondents from delivering the report of the Board to the Minister, and from disclosing any draft or final version of such report and any evidence or material received by the Board, is discharged.

Serial No 12/2017
File No 2753/2017

PETER FRANCIS THOMAS BROOKS v BARRY MAXWELL EASTHER,
NORMA LYNN MASON,
ACTING ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT FULL COURT

SLICER AJ
MARSHALL AJ

PORTER AJ
15 November 2017

Introduction

The appellant appeals from the judgment of Blow CJ published on 11 September 2017, Brooks v Easther (No 3) [2017] TASSC 54, in which his Honour dismissed an application for an order in the nature of prohibition.
The appellant is the general manager of the Glenorchy City Council ("the Council"). On 14 October 2015, the Minister for Planning and Local Government established a Board of Inquiry to inquire into governance arrangements and practices of the Council. The first and second respondents constitute the Board of Inquiry. They have taken no part in the proceedings. The then Acting Attorney-General intervened in the proceedings below and was joined as the respondent. As the only active respondent, it is convenient to refer to the Acting Attorney as "the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brooks v Easther

Details

AGLC: Brooks v Easther [2017] TASFC 12
Case: [2017] TASFC 12
Decision Date: 15 November 2017

CaseChat Overview and Summary

Brooks (the applicant) sought judicial review of a decision by Easther (the respondent), a member of a statutory Board of Inquiry. The Board was established to inquire into certain matters and was required by legislation to observe the rules of natural justice in its proceedings. The applicant contended that the Board had breached these rules.

The primary legal issues before the court were whether the Board had denied the applicant procedural fairness by providing him with a draft report containing detailed findings and seeking submissions at too late a stage in the inquiry, and whether there was an apprehension of bias on the basis of prejudgment by the Board.

The court found that the applicant had been provided with a draft report containing detailed findings and was given an opportunity to respond. This opportunity to make submissions, even at a later stage, was considered sufficient to satisfy the requirements of procedural fairness. Furthermore, the court determined that the applicant had not established an apprehension of bias, as there was no evidence to suggest that the Board had prejudged the matter. The complaints raised by the applicant were not made out before the primary judge, and no error was established on appeal.

Orders