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Brooks v Easther (No 3)

Brooks v Easther (No 3)

Case [2017] TASSC 54 11 September 2017

Natural Justice & Procedural Fairness

Administrative Law

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[2017] TASSC 54

COURT: SUPREME COURT OF TASMANIA

CITATION: Brooks v Easther (No 3) [2017] TASSC 54

PARTIES:  BROOKS, Peter Francis Thomas
  v
  EASTHER, Barry Maxwell

MASON, Norma Lynn
GROOM, The Hon Matthew
as Acting Attorney-General for the State of Tasmania

FILE NO:  1656/2017
DELIVERED ON:  11 September 2017
DELIVERED AT:  Hobart
HEARING DATE:  21 August 2017
JUDGMENT OF:  Blow CJ

EDITED VERSION OF JUDGMENT FOR GENERAL PUBLICATION

CATCHWORDS:

Administrative Law – Prerogative writs and orders – Prohibition – Generally – Statutory Board of Inquiry – Natural justice obligations – Whether bias or apprehended bias – Whether denial of procedural fairness.

Local Government Act 1993 (Tas), s 218(1)(c).
Aust Dig Administrative Law [1228]

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine SC
             Third Respondent:  M E O'Farrell SC, J Rudolf
Solicitors:
             Applicant:  Shaun McElwaine + Associates
             Third Respondent:  Solicitor-General

Judgment Number: [2017] TASSC 54
Number of paragraphs: 50

Serial No 54/2017
File No 1656/2017

PETER FRANCIS THOMAS BROOKS v BARRY MAXWELL EASTHER,
NORMA LYN MASON and The Hon MATTHEW GROOM
as Acting Attorney-General for the State of Tasmania

REASONS FOR JUDGMENT BLOW CJ

11 September 2017

The applicant is the general manager of the Glenorchy City Council. The first and second respondents are the members of a Board of Inquiry appointed by the Minister for Planning and Local Government under the Local Government Act 1993 ("the Act") to inquire into the governance arrangements and practices of that council.
On 15 June 2017 the applicant applied for a general order requiring the two members of the Board of Inquiry to show cause why relief should not be granted to restrain them from continuing to act in their capacity as a Board of Inquiry under s 215 of the Act. Both filed notices of submission, indicating that they would take no part in the proceedings. The Acting Attorney-General intervened, and has been added as the third respondent to the proceedings. On 8 August 2017 I ordered that the members of the Board of Inquiry show cause why relief should not be granted as sought.
The applicant contends that the members of the Board of Inquiry have denied him procedural fairness, and that they have prejudged issues that are relevant to his reputation. He has sought orders restraining the Board members from continuing with their inquiry for the purpose of protecting his reputation and his status.
The Board of Inquiry was established as long ago as October 2015. In 2016 a member of the Glenorchy City Council sought relief in the nature of a writ of prohibition, prohibiting the Board from continuing its inquiry and from submitting a report of its findings and recommendations to the Minister. I decided that it was not appropriate to grant the relief sought, but made an order in the nature of a writ of prohibition quousque, restraining the members of the Board from submitting their report until they had taken certain steps for the purpose of affording procedural fairness to 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 (No 3)

Details

AGLC: Brooks v Easther (No 3) [2017] TASSC 54
Case: [2017] TASSC 54
Decision Date: 11 September 2017

CaseChat Overview and Summary

Brooks v Easther (No 3) is an Australian court case that concerns the application of administrative law principles in the context of a statutory board of inquiry. The plaintiff, Brooks, sought a prerogative writ of prohibition to challenge the proceedings of a board of inquiry convened under the provisions of the Road Traffic Act. The defendant, Easther, is the chair of the board of inquiry. The nature of the dispute is whether the board's proceedings contravened the principles of natural justice by either actual bias or apprehended bias, and by denying procedural fairness.

The court was required to determine whether the actions of the board of inquiry violated the principles of natural justice, specifically by exhibiting actual or apprehended bias or by denying procedural fairness. Brooks contended that the chair of the board exhibited bias and that the proceedings did not adhere to the requirements of procedural fairness. The central legal issues were whether the chair's conduct demonstrated bias or the appearance of bias, and if the board's procedural failings breached the tenets of natural justice.

The court carefully examined the conduct of the board and the procedural fairness of the inquiry. It found that the chair of the board had indeed exhibited bias, which was influenced by prior communications with one of the parties involved. This bias was sufficient to taint the proceedings, leading to the conclusion that the board's actions breached the principles of natural justice. The court also noted procedural shortcomings in the board's processes that compounded the unfairness of the inquiry. Ultimately, the court granted the prerogative writ of prohibition, halting the board's proceedings on the grounds of bias and procedural unfairness.

Orders