Copley v Doyle

[2012] QPEC 24

[2012] QPEC 24

PLANNING AND ENVIRONMENT COURT

JUDGE R JONES

P & E Appeal No 1788 of 2011

GREGORY CHARLES COPLEY	Appellant
and
CECILIA BRIDGET DOYLE MARIE AGNES DOYLE PETER DANIEL DOYLE	Co-Respondents
and
LOGAN CITY COUNCIL	Respondent

BRISBANE

..DATE 03/04/2012

..DAY 1

RULING

HIS HONOUR:  I am required to rule on an application that I disqualify myself and take no further part in these proceedings on the basis of apprehended bias.

The nature of this application is an application to have the appellant’s notice of appeal struck out or that judgment be given in favour of the co-respondents.  The application has been brought by the appellant, Mr Copley, and is opposed by the respondent, the Logan City Council, and the co-respondents. Having regard to the nature of this application, it is materially different to any proceedings involving the substantive hearing of the appeal on the merits.

The circumstances leading up to this application arose, broadly speaking, in this way:  During the course of Mr Connor's submissions, it became apparent that some of the matters relied on by the appellant were familiar to me.  As submissions advanced, I recalled and after discussing the matter with Mr Copley, he confirmed that when I was a member of the Land Court, I heard an appeal against unimproved value attributed to his land by the then-Department of Natural Resources and Mines.

I handed down a decision in the Land Court, which is Copley and the Department of Natural Resources and Mines [2007] QLC 110. Over the luncheon break, Mr Copley had time to consider that judgment and submitted that I should disqualify myself on the basis of apprehended bias, essentially because I had, in effect, made adverse findings concerning the issue of flooding. It needs to be pointed out immediately that the land the subject of Mr Copley's appeal to the Land Court is not the same land the subject of this appeal. Mr Copley's land is on the opposite side of the Logan River.

The appellant, in his amended notice of appeal to this court, refers to the issue of flood impacts on the subject land and says, "Upon consideration of the impact of flooding on the subject site in 1947, 1974, 1976 and the more severe impact from the floods before and including 1887 and the 1893 flood, and after giving weight to new flood levels which are based on climate change, sea level rise predictions from the intergovernmental panel on climate change, and as prospective purchasers of the land at the subject site will be unforgiving if they find out that their inundated homes were built with full knowledge that flooding was inevitable; therefore, the respondents negotiate a decision notice and amended development approval is unacceptable for the subject site situated on sensitive environmental Logan River flat land, and the Court is requested that that decision be set aside."

In the affidavit of Mr Copley filed with leave today under the heading "flooding", it is asserted, "As to my appeal, ground number one, my witnesses will give evidence to support levels established by Beaudesert Shire Council surveyor and set out in his report, and more particularly described on page reference number", et cetera.

And then, continuing the quote, "Contrary to the various levels contained in the respondent's material which are chiefly based on modelling and supposition, I will provide at trial first hand eye witness accounts as to what level the 1974 flood reached at the top of Thompson creek over Wearing Road at north Maclean and situated approximately 700 metres north of Maclean Bridge."

In the - my decision of the Land Court it was noted in paragraph 5 that the actual extent of inundation over Mr Copley's land was the most critical issue in that appeal.  In paragraph 10 of my reasons, I observe that Mr Copley had relied on observations and oral and written statements of various people but that the authors of the various admissible statements and documents that were relied on by Mr Copley were not called.

In paragraph 12 I said, "Notwithstanding the wide ranging nature of the evidence relied on by Mr Copley, at the end of the day I was not convinced that either separately or as a whole that evidence proved that the appropriate designated flood level for the land should be RL27. It is my opinion that the knowledgeable and prudent vendor and purchaser prescribed in Spencer v The Commonwealth would proceed, as did Mr FitzGerald, on an acceptance of the advice provided by the Council."  I should note there that Mr Fitzgerald - Mr Fitzgerald referred to in that passage was, to the best of my recollection, the department valuer who gave evidence. 

In the High Court decision of Ebner and Others and The Official Trustee in Bankruptcy and Another [2001] 205 CLR 337 at 344 Chief Justice Gleeson with Justices McHugh, Gummow and Hayne said, "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a Judge (or other judicial officer or juror) as here, the governing principle is that, subject to qualifications relating to waiver or necessity, which are not applicable here, 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. That principle gives effect to the requirement that justice should both be done and be seen to be done; a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial."

Their Honours went on to say in paragraph 7, "The question is one of possibility, real and not remote, not probability."  And then in paragraph 8 their Honours went on to say that the apprehension of the bias principle involves two steps.  First the identification of the basis for the application.  Second, the articulation of th logical connection between it and the feared derivation of the judge from decising the case on its merits.

Similar observations were made in the reasons of the Court in the decision of the High Court of Johnson and Johnson [2000] HCA 48, particularly at paragraphs 11, 12 and 13.
Mr Copley expanded on his application and said, in particular, that that - first, the matters dealt with by the Land Court required a finding of fact adverse to the appellant's flooding evidence in this case and the same issues are involved.  With all respect to Mr Copley, I can not agree with those submissions.

The first thing to note, as I'd said earlier, is that we are dealing here with different parcels of land and in the Land Court case, that matter was decided in circumstances where the appellant did not call any witness to support his case.  That is abundantly clear.  By reference to the material that I have already referred to, it is clear that in this case, unlike the Land Court proceeding, Mr Copley does intend to call witnesses to support his assertions concerning the flooding.

That is an immediate and significant point of difference.  Another significant point of difference is in paragraph 12 of my reasons in the Land Court decision, the finding or the essential finding there was that the prudent purchaser as prescribed, in the well known High Court decision of Spencer and The Commonwealth, would've proceeded on an acceptance of the advice provided by the Council in respect of flood levels.

That involved a finding as to how the prudent purchaser would act in the circumstances of that appeal.  It did not involve any adverse findings, as I've already said, against any witnesses called by Mr Copley.  However, I do acknowledge that implicit in my findings in that case as, in fact, I stated, that I was not convinced that the evidence that Mr Copley did lead in that case proved that an appropriate designated flood level of land should be RL27.

There are also a number of issues raised by Mr Copley in this appeal that were not raised in the Land Court proceeding and vice versa.

In my view, there are significant differences between the issues raised in the proceedings in the Land Court and those before this Court and, on balance, have reached the conclusion that.  A fair minded lay observer would not reasonably apprehend that this application would not be decided on its merits in an impartial way.  

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