ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER and BOMBARA
[2021] WASAT 3
•14 JANUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LAND ADMINISTRATION ACT 1997 (WA)
CITATION: ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER and BOMBARA [2021] WASAT 3
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 8 JANUARY 2021
DELIVERED : 14 JANUARY 2021
FILE NO/S: DR 131 of 2013
BETWEEN: ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER
Applicant
AND
MARK JAMES BOMBARA
Respondent
Catchwords:
Administrative Tribunal - Administration of justice - Tribunal member - Application for disqualification of Tribunal member on ground of apprehended bias on the basis of association - Presumed knowledge of hypothetical fairminded law observer - Whether reasonable apprehension of bias
Legislation:
Electricity Corporation Act 1994 (WA), s 4
Land Administration Act 1997 (WA), s 222, Pt 10, Div 4
State Administrative Tribunal Act 2004 (WA), s 9(a), s 32(2)
Result:
The application for disqualification is dismissed.
Category: B
Representation:
Counsel:
| Applicant | : | Mr K de Kerloy |
| Respondent | : | Mr M Bennett |
Solicitors:
| Applicant | : | Herbert Smith Freehills |
| Respondent | : | Bennett + Co |
Case(s) referred to in decision(s):
Bombara v Electricity Networks Corporation trading as Western Power [2019] WASCA 62
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Electricity Networks Corporation T/As Western Power and Bombara [2015] WASAT 105
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223
Rayney v The State of Western Australia [2020] WASCA 206
Rayney v The State of Western Australia [No 3] [2020] WASCA 209
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Polities; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
I am dealing with an application by Mr Mark James Bombara (the respondent) that I recuse myself from the final hearing of this matter.
The application is put on the basis that a reasonable apprehension of bias, on the basis of association, may arise if I sit in the final hearing of this matter. This is because my brother is employed by Western Power (the trading name of the Electricity Networks Corporation).
Western Power is the applicant in these proceedings. The application is made pursuant to s 222 of the Land Administration Act 1997 (WA) (LA Act). Western Power is a statutory corporation owned by the State Government and was established by s 4 of the Electricity Corporation Act 1994 (WA) on 1 January 1995.
The substantive matter involves the assessment of compensation payable to the respondent arising from the acquisition of his interest in land (being for the protection of an electricity transmission line). The relevant taking order is dated 8 October 2003. In that regard, the respondent's (conjointly owned) land has been encumbered by an easement (registered by dealing no. I653596) to protect the electricity infrastructure. The easement is 60 metres wide and spans approximately 2.5 hectares of the respondent's land. The respondent's total landholding is approximately 60 hectares.
The matter does have some background to it. A decision on a preliminary issue, being the relevant date for the valuation of the respondent's interest in the relevant land for the purposes of assessing compensation, was made by the State Administrative Tribunal (Tribunal) on 19 September 2015: Electricity Networks Corporation T/As Western Power and Bombara [2015] WASAT 105. The question of the date for valuation was ultimately settled by the Court of Appeal: Bombara v Electricity Networks Corporation trading as Western Power [2019] WASCA 62 (Murphy JA, Beech JA, Pritchard JA).
The matter is listed to a final hearing before me to commence on 1 February 2021.
Reasonable apprehension of bias
On 31 December 2020, I arranged for the following email to be sent to the parties:
As you are now aware, Senior Member Willey has listed this matter for a directions hearing on 8 January 2021. The listing is provisional only.
The reason why the Senior Member has made this provisional listing is because the Senior Member's brother is employed by Western Power as a Senior Customer Relations Consultant. The Senior Member's brother is completely unaware of this matter and is not involved in it whatsoever. The Senior Member's brother has no personal or professional interest in the matter.
If either party wishes to make submissions that Senior Member Willey should recuse himself from hearing this matter based on his brother's employment at Western Power, they may do at the directions hearing on 8 January 2021. The Senior Member will then make a determination on the question. However, if neither party wishes to be heard on the issue, the directions hearing will simply be vacated.
In this regard, it would be appreciated if the parties could take instructions and advise the Tribunal by 4pm on Wednesday 6 January 2021 as to whether the directions hearing on 8 January 2021 is required.
Western Power does not oppose me hearing this matter. However, the respondent advises that a reasonable apprehension of bias arises on account of my brother being employed at Western Power. The respondent further says that the proper course is that I recuse myself from the final hearing.
At the directions hearing on 8 January 2021, in addition to my email of 31 December 2020, I further explained that my brother is a salaried mid-level employee of Western Power. He is not part of the leadership or governance structures of Western Power.
Respondent's submissions as to why a reasonable apprehension of bias might arise
The respondent's submissions as to why I should recuse myself are as follows:
(1)The question of bias arises strictly on there being a reasonable apprehension of bias in the sense discussed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) and Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288: ts 2-3, 8 January 2021.
(2)The background to this matter spans some 33 years. The issue at stake is the quantum of compensation to be paid by the applicant to the respondent in relation to the easement imposed on the land that is jointly owned by the respondent. Because the matter relates to the question of the 'financial impost on the applicant' Mr Bennett, counsel for the respondent, is concerned that a fair-minded observer might entertain a reasonable that it might be in the interests of Western Power to 'pay less rather than more': ts 3, 8 January 2021.
(3)In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Johnson) it was outlined that 'the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice': [13]. On this basis, the respondent suggests that the appropriate course is that the matter be heard by another member of the Tribunal: ts 3, 8 January 2021.
(4)The respondent acknowledges (ts 4, 8 January 2021) the caution expressed by Brennan, Dawson and McHugh JJ in Re Polities; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78 at 86 where, by reference to Mason J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 it was stated:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.
(5)The respondent's ultimate submission is, in the context of a proceeding spanning some 30 odd years, where the issue at stake is the quantum of payment to be paid by the respondent, because my brother is an employee of Western Power, a fair-minded observer, not assumed to be skilled in judicial practicalities and ways, might fear that this might result in me not being impartial in deciding the issues: ts 4, 8 January 2021.
Western Power did not wish to make submissions on the question of disqualification. It did not oppose the respondent's submissions.
Applicable principles
The test for determining whether I should disqualify myself are, essentially, the same as for judicial officers. Indeed Mr Bennett did not suggest that any different approach applies.
While I am not a judicial officer and have not taken the judicial oath, I am a Senior Member of the Tribunal. In this regard, by reason of s 32(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), I am required to act according to 'equity, good conscience and the substantial merits of the case'. Likewise, I am required to make decisions 'fairly and according to the substantial merits of the case': s 9(a) SAT Act.
The relevant test for disqualification by reason of the appearance of bias is whether 'a fair, open-minded lay observer might reasonably apprehend that the [tribunal member] might not bring an impartial and unprejudiced mind to the resolution of the question that the [member] is required to decide': Johnson at [12].
As was observed by Corboy J in Rayney v The State of Western Australia [No 3] [2020] WASCA 209, the test is objective and is founded on the need for public confidence in the administration of justice: at [39].
The hypothetical fair-minded lay observer is taken to be a reasonable person who appreciates that, in this instance, the person being observed is a professional (full-time) Tribunal member whose training and experience requires that irrelevant, immaterial and prejudicial materials be disregarded: Johnson at [12].
In this sense, I consider that the considerations outlined by Buss P at [109] of Rayney v The State of Western Australia [2020] WASCA 206 (Rayney) apply, in at least a broad sense, to members of the Tribunal. Furthermore, I also note here that pursuant to Div 4 of Pt 10 of the LA Act, matters such as this proceeding may only be dealt with by senior members or judicial officers of the Tribunal.
Following the decision of the High Court in Ebner, the application of the test involves two steps. The first is the identification of what might lead me to decide a case other than on its legal and factual merits. The second is that there must be a logical connection established between that matter and the 'feared deviation from the course of deciding the case on its merits': Ebner at [8]. The reasonableness of the asserted apprehension of bias can only be assessed after the two steps have been performed: Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [21] (Isbester), Rayney at [110].
The hypothetical lay observer tasked with assessing possible bias is taken to be aware of the nature of the decision to be made, the context in which it is to be made and the circumstances leading to the decision: Isbester at [23].
While the question of whether a hypothetical lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely factual, the question is to be determined in the legal, statutory and factual context in which the decision falls to be made: Isbester at [20].
The hypothetical lay observer is not taken to have a detailed knowledge of the law. However, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary practice: Johnson at [13].
In Johnson at [53], Kirby J set out the following in relation to the qualities of the hypothetical lay observer:
… Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.
In Isbester, Gageler J noted that a hypothetical lay observer was assumed to possess knowledge of the relevant statutory framework and the factual context within which a decision is to be made: [57].
Matters that a hypothetical lay observer would be aware of
I consider that the hypothetical lay observer would be aware of the following matters in order to make a fair assessment on the question of whether bias might reasonably be apprehended if I sat in the final hearing of this proceeding:
(1)The factual context of the applicant, being a Stateowned statutory corporation that delivers an electricity network for Western Australia. I also consider that the hypothetical lay observer would appreciate, at least in broad terms, that a State-owned statutory corporation is not the same as a private commercial operation.
(2)The size of Western Power. While the precise size of Western Power and the value of its assets is unlikely to be known, a hypothetical lay observer would be aware that Western Power builds, provides and operates Western Australia's electricity network. That is, it is a significant statutory corporation.
(3)My brother's role at Western Power, his remoteness from the proceeding and his lack of professional or personal knowledge or interest in it.
(4)The background to the dispute. That is, the establishment of an easement on rural land (conjointly) owned by the respondent in order to protect electrical infrastructure needed by Western Power near Casuarina in the vicinity of Kwinana.
(5)The focus of the proceeding. That is, the proceeding is essentially an assessment of the quantum of compensation that is due to the respondent arising from the taking. There is no dispute as to the entitlement of the respondent to compensation. The only substantive issue is the amount that is to be paid. The essential contest is whether the respondent's land is to be valued on the basis that it had urban potential as at the date of taking.
Consideration
I am satisfied that there is no proper basis on which I should recuse myself from the final hearing of this matter. I do not consider that a hypothetical lay observer who knows or is aware of the matters to which I have referred to at [24], as well as the objective circumstances of this proceeding, could reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions to be determined at the final hearing.
These questions focus on the compensation that is due to the respondent under the LA Act and which arise from the taking of his interested in the relevant land. I am so satisfied for the following reasons.
Firstly, having regard to the matters set out at [24] above, I do not consider that a hypothetical lay observer would have a reasonable apprehension of bias in my hearing this matter. Western Power is a statutory corporation that is tasked with providing an electricity network for Western Australia. My brother, as a customer consultant, is a mid-level employee at Western Power whose role is far removed from this litigation.
In my view, because he is so remote from the issues that arise for consideration, a hypothetical lay observer would consider that my relationship with my brother will be completely unaffected by the outcome of this litigation. Equally, a hypothetical lay observer would consider my brother's position within Western Power will be unaffected regardless of the determination of compensation that I may reach in relation to this proceeding. That is, there is no relevant 'interest' that arises that might lead me to decide the case other than on its legal and factual merits.
Secondly, and following on from above, I do not accept Mr Bennett's submission that mere fact that the litigation relates to 'financial impost on the applicant' (being the compensation owed by the applicant) is such that I ought to recuse myself.
Other than for the bare assertion it may be in Western Power's interests to pay 'less rather than more', Mr Bennett has not articulated any reasonable basis on which I ought to recuse myself. As I have set out above, I do not consider that the mere fact that my brother works for Western Power would lead to a hypothetical lay person to conclude that I might decide the case other than on its legal and factual merits. Second, the respondent did not, in my view, articulate any logical connection between the fact of my brother's employment and the 'feared deviation from the course of deciding the case on its merits'.
Thirdly, the issues in contest are essentially about the compensation that is owed to the respondent arising from the establishment of an easement over some 2.5 hectares what was rural zoned land as at the relevant valuation date.
The difference in the respective compensation assessments urged by the parties is significantly less than $1,000,000. This is not a case where the compensation being pressed for runs into millions of dollars.
The point being that the amount in contest in this proceeding is not, in relative terms, excessive. Further, there is nothing before me to suggest that Western Power will have difficulty in meeting the quantum of compensation that the respondent says he is owed or that an adverse outcome will present difficulties for the corporation (such that the position of Western Power employees may be adversely affected).
Having regard to these considerations, I do not consider that a hypothetical lay observer would entertain a reasonable apprehension of bias in my hearing the matter.
Fourthly, in my view, the fact that the events that give rise to this dispute have a history that extends for over 30 years is irrelevant to the question of bias. Contrary to the respondent's submissions, I do not agree that what may be regarded as a long history informs the assessment of reasonable apprehension of bias in this context.
For these reasons, I refuse to recuse myself from the final hearing of this matter.
Order
The Tribunal orders:
1.The respondent's application for disqualification is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
14 JANUARY 2021
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