Casimaty v Hazell Bros Group Pty Ltd

[2021] TASSC 50

[2021] TASSC 50

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Casimaty v Hazell Bros Group Pty Ltd [2021] TASSC 50
PARTIES:	CASIMATY, Gregory John
v
HAZELL BROS GROUP PTY LTD
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
FILE NO:	2259/2020
DELIVERED ON:	29 October 2021
DELIVERED AT:	Hobart
HEARING DATE:	15 October 2021
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Courts and Judges – Judges – Disqualification for interest or bias – Particular grounds – Prejudgment – Apprehension of prejudgment – Plaintiff seeking equitable relief asserting non-compliance with statute requiring scrutiny of expenditure on roadworks project by parliamentary committee – Strike-out application asserting no justiciable issue and parliamentary privilege – Judge took into account evidence

as to expenditure on project when refusing extension of time for appeal from planning decision.

Ebner v Official Trustee [2000] HCA 63, 205 CLR 337; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, 229 CLR 577; Charisteas v Charisteas [2021] HCA 29; Webb v The Queen (1994) 181 CLR 41; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 73, referred to.

Aust Dig Courts and Judges [50]

REPRESENTATION:

Counsel:

Plaintiff:	B McTaggart SC, G O'Raffety
First Defendant:	No appearance
Second Defendant:	M E O'Farrell SC, D Osz

Solicitors:

Plaintiff:	Leonard Fernandez
First Defendant:	Shaun McElwaine + Associates
Second Defendant:	Solicitor-General

Judgment Number:	[2021] TASSC 50
Number of paragraphs:	15

Serial No 50/2021 File No 2259/2020

GREGORY JOHN CASIMATY v HAZELL BROS PTY LTD

and ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT BLOW CJ
29 October 2021

1             The Attorney-General has filed an interlocutory application seeking an order that this action be dismissed with costs on the basis that the amended statement of claim does not disclose any reasonable cause of action, in that it does not raise a justiciable issue. In the alternative, she seeks orders that parts of the amended statement of claim be struck out as vexatious on the basis that they offend the principle that parliamentary proceedings are absolutely privileged. That application has been listed for hearing before me on Friday of next week, 5 November.

2             The plaintiff has filed an interlocutory application seeking an order that I recuse myself from hearing the Attorney-General's interlocutory application, on the ground of apprehended bias. For the reasons which follow, I have decided not to disqualify myself.

3             The plaintiff's action concerns the development and construction of a new interchange on the Tasman Highway near the Hobart International Airport, at the junction of the Tasman Highway, Holyman Avenue, Kennedy Drive and Cranston Parade. The plaintiff contends that the project is one that the Parliamentary Standing Committee on Public Works is required to consider and report upon in accordance with provisions in the Public Works Committee Act 1914; that that has not occurred; and that the first defendant, Hazell Bros Group Pty Ltd, should be restrained by an injunction from commencing or undertaking work on the interchange until that occurs. According to his amended statement of claim, he holds an interest in land at 51 Cranston Parade.

4             Earlier this year I heard and determined another proceeding relating to the same interchange construction project. Three companies applied for an extension of time for an appeal against a decision of the Resource Management and Planning Appeal Tribunal by which it affirmed a decision of the Clarence City Council to grant a planning permit for the development of the interchange. On 19 July 2021 I refused that application: Acton View Pty Ltd v Resource Management and Planning Appeal Tribunal [2021] TASSC 30. The three companies have appealed to the Full Court from my decision. Their appeal has not yet been heard. I understand that the plaintiff may be associated with at least one of the three companies.

5             During the hearing in that case I received evidence from a man named Smith who was employed as a project manager by the first defendant to this action, Hazell Bros Group Pty Ltd. In my judgment in that case, I said the following in relation to his evidence at [62] and [63]:

"[62] It is now about 8 months since the Tribunal made its decision. No application has been made for an interlocutory injunction to delay construction of the interchange in accordance with the Tribunal's decision. A project manager employed by Hazell Bros, Mr Smith, swore an affidavit and gave oral evidence in these proceedings. His evidence was not contradicted or challenged. As at 25 June 2021, Hazell Bros had undertaken work on the project that was the subject of payment claims totalling $14, 101,003.72 plus GST. There is a contract between Hazell Bros and the State which requires completion of the works by 10 March 2023 and specifies a contract sum of over $36 million. Delay beyond the scheduled completion date is subject to a clause requiring the payment of liquidated damages at the rate of $1065 per day.

[63] Granting an extension of time would cause prejudice to the State and to Hazell Bros, in that it would create a risk that work on the project might have to stop after some $14 million worth of work has been undertaken."

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6             In the Full Court proceedings, the appellant companies are contending that the expenditure of some $14 million by the State was an irrelevant consideration that I was obliged not to take into account.

7             The plaintiff now contends that, as a result of my having received evidence from Mr Smith and my having made the findings set out above, a fair-minded observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that are to be decided on the Attorney-General's interlocutory application.

8             The relevant principle is that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee [2000] HCA 63, 205 CLR 337 at [6]; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, 229 CLR 577 at [110]; Charisteas v Charisteas [2021] HCA 29 at [11].

9             In Webb v The Queen (1994) 181 CLR 41 at 74, Deane J identified four categories of cases in which judges could be disqualified on the basis of apprehended bias. His Honour's fourth category consisted of "cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias". CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 73 was such a case. That case concerned a decision of the Immigration Assessment Authority in relation to the review of a decision by a delegate of the Minister to refuse a protection visa. The Secretary of the relevant department had provided the authority with review material which included material that was irrelevant to the authority's review task and prejudicial to the applicant. For example it included assertions that he had a history of unspecified aggressive or challenging behaviour, had been involved in many unspecified incidents while in detention, and had some link to investigations of a riot. The High Court held, by majority, that a fair-minded lay observer might apprehend a lack of impartiality on the part of the authority.

10           As Nettle and Gordon JJ pointed out in that case at [57], the test for apprehended bias has two steps: "First, one must identify what it is that might lead a decision-maker to decide a case other than

on its legal and factual merits … Second, a logical connection must be articulated between the identified

thing and the feared deviation from deciding the case on its merits". [Footnotes omitted.]

11           I received information in July that work worth some $14 million had been done on the interchange project, and that the work was continuing. Unless I disqualify myself, I will have to determine whether, as a matter of law, the plaintiff has standing to seek equitable relief on the basis of non-compliance with the Public Works Committee Act. The information as to the amount of work done and money spent is irrelevant to the question of standing. However that information is not prejudicial. No question of credibility is involved in the pending proceedings. There is nothing about highway construction that might inflame a judge's emotions and lead him or her to make a decision that is not in accordance with the law.

12           Of course the plaintiff is relying not only on the fact that I received evidence from Mr Smith as to the extent of work done and money spent, but also on the proposition that I erred in law by taking that evidence into account. Since the Full Court appeal is pending, it is not appropriate for me to express a view as to whether or not I erred in law as asserted. For the purpose of this decision, I should assume that the fair-minded lay observer knows that I took Mr Smith's evidence into account, and believes that I may have erred in law by taking it into account. However blundering by a judge is not of itself an indication of possible bias. And nothing that I might decide in determining the Attorney-General's interlocutory application can have any impact on the outcome of the Full Court appeal.

13           The questions as to standing that are raised in this action and by the Attorney-General's application are very important questions relating to the relationships between the executive, legislative and judicial arms of government. Those issues are far more important than the fate of a $36 million

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roadworks project. If, having received information irrelevant to the determination of that application, I erred by taking that information into account when deciding how to exercise my discretion to grant an extension of time for an appeal from a planning decision, there is no logical reason why a fair-minded lay observer might apprehend that I might not bring an impartial mind to the resolution of questions of law that arise in relation to the same roadworks project in a totally different context.

14   In Re JRL, ex parte CJL (1986) 161 CLR 342 at 352, Mason J (as he then was) said:

"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

15           In the light of that comment, I consider that I either have a duty to disqualify myself or a duty to hear the Attorney-General's application. For the reasons stated, I reject the submission that I have a duty to disqualify myself, and dismiss the plaintiff's interlocutory application.