Gallo and Williams v Department of Natural Resources and Water
[2009] QLC 181
•16 December 2009
LAND COURT OF QUEENSLAND
CITATION: Gallo and Williams v Department of Natural Resources and Water [2009] QLC 0181 PARTIES: Filomena, Francesco Ralph and John Peter Gallo (WAA021-07)
and
Richard Fred and Mary Olive Williams (WAA022-07)
(appellants)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO: WAA021-07 and WAA 022-07 DIVISION: Land Court of Queensland PROCEEDING: Application that hearing dates be vacated. DELIVERED ON: 16 December 2009 DELIVERED AT: Brisbane HEARD AT: Brisbane PRESIDENT: Mrs CAC MacDonald ORDER: 1. The President disqualifies herself from hearing and determining the appeals against review decisions in the matters WAA021-07 and WAA022-07.
2. The hearing of these matters set for 5 days commencing on 15 March 2010 is vacated.
3. These matters are to be allocated to another Member of the Land Court for determination.
4. The respondent Chief Executive, Department of Natural Resources and Water is ordered to pay the appellants' costs of and incidental to the mention on 10 November 2009.
5. The respondent Chief Executive, Department of Natural Resources and Water, is ordered to pay the appellants' costs of and incidental to the hearing of today's application. Counsel's costs are to be limited to preparation and appearance by one Counsel.
CATCHWORDS: APPEARANCES: Mr G Allan with him Mr PD Sheridan for the appellants
Mr WL Cochrane for the respondentSOLICITORS: P&E law for the appellants
Crown Solicitor, Crown Law for the respondent
This is a revised version of the ex tempore decision that I delivered on 16 December 2009.
The principal proceedings are appeals by Filomena, Francesco Ralph and John Peter Gallo and Richard Fred and Mary Olive Williams (the appellants) against review decisions of the Chief Executive, Department of Natural Resources and Water (the respondent) dated 14 February 2007 and 13 February 2007 concerning applications for water licences Nos. 400431 and 400417.
The appeals are set down for hearing before me for 5 days commencing on 15 March 2010. This decision deals with an application by the respondent that the trial dates be vacated. The respondent is also seeking orders that the hearing of the appeals be allocated to other hearing dates before another Member of the Land Court. The basis of the application is that there is an apprehension of bias on my part arising out of my social contact with Mr Francesco Gallo, one of the appellants, incidental to professional and business dealings between my husband and Mr Gallo.
The background to the application is this. The principal proceedings were mentioned before me on 5 November 2009, at my request. The reason for that request was that I was proposing to list the appeals for hearing before myself in 2010 but I was concerned that I may have had some contact with one or two of the appellants, Mr Francesco Gallo and his wife.
At the mention on 5 November 2009, I ascertained from counsel for the appellants, Mr Sheridan, that Mr Francesco Gallo was the owner of an enterprise known as "Gallo Dairyland" on the Atherton Tableland. I then disclosed to the parties that my husband has a business relationship with Mr Gallo. The relationship is comparatively recent and at this stage minor, but it was anticipated that it would continue indefinitely. I also advised the parties that I had met Mr Gallo and his wife socially, in company with my husband, on a visit to the Atherton Tableland in September 2009 when we had been shown around the "Gallo Dairyland". During my conversation with Mr and Mrs Gallo, Mr Gallo made some reference to his existing water licence and indicated that it was not sufficient for his needs.
In the light of those facts, I asked the parties whether there was any objection to my hearing the principal appeals. Counsel for the appellants, Mr Sheridan, said that he did not have any objection. Counsel for the respondent, Mr Cochrane, took instructions and then said "… our position is we don't oppose with your Honour continuing to hear the matter. It really is perhaps more a matter for your Honour in terms of the dialogue you recall having with Mr Gallo, but certainly as far as the Chief Executive is concerned we have no reservations at all".
Since there was no objection to my hearing the appeals, the hearing was listed to commence on 15 March 2010.
Later that day, Ms L Marshall, a senior legal officer of Crown Law, sent an email to the appellants' representatives which was copied to Mr Hayden, a deputy registrar of the Court. The email said that the respondent chief executive had instructed her that he was concerned about a possible conflict of interest given the social contact that had occurred between myself and the appellants and the commercial relationship that existed between the Gallos and Mr MacDonald's company. The respondent indicated that it considered that it would be prudent if another Member of the Court heard the appeals.
As a result of this email, the matter was listed for mention before Member Jones on 10 November 2009. At that mention it became apparent that the appellants were resisting the respondent's submission that it would be prudent if another Member of the Court heard the appeals. Ultimately Mr Cochrane made an oral application before Mr Jones that the trial dates be vacated on the basis that there was a high risk of apprehended bias at least on the part of the President.
Subsequently that application was listed for hearing before me on 16 December 2009. At the close of the hearing I delivered an ex tempore decision with the qualification that I reserved the right to supplement the decision with some background information about the circumstances giving use to the application and to correct any minor errors.
The appellants have resisted the orders sought by the respondent on the basis that I have no power to vary my orders of 5 November 2009 in the absence of the consent of the appellants.
Rule 45 of the Land Court Rules 2000 provides that
"Setting aside an order
45(1) The court may vary or set aside an order before the earlier of the following -
(a) the filing of the order; or
(b) the end of 7 days after the making of the order.(2) However, the court may set aside an order at any time if -
(a) the order was made in the absence of a party; or
(b) the order was obtained by fraud; or
(c) the order does not reflect the court's intention at the time the order was made; or
(d) the party who has the benefit of the order consents."The Land Court Rules do not contain a provision dealing with matters which arise after an order is made. However, r.4(1) of the Land Court Rules provides that if those rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (UCPR) would provide for the matter, the uniform rules apply in relation to the matter with necessary changes.
Rule 668 of the Uniform Civil Procedure Rules 1999 (UCPR) provides that -
"668 Matters arising after order
(1) This rule applies if -
(a)facts arise after an order is made entitling the person against whom the order is made to be relieved from it; …
(2) On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
(3) Without limiting subrule (2), the court may do one or more of the following -
…
(b) set aside or vary the order.
…"Rule 668 may, therefore, be used to fill the gap in the Land Court Rules.
For the reasons set out later in this decision, I consider that the ongoing commercial relationship between my husband and Mr Gallo is such as to raise a reasonable apprehension that I may be biased dealing with these appeals. In those circumstances I would not be prepared to proceed with the proposed hearing unless the parties consented to my doing so. Against that background, the withdrawal of the respondent's consent to my hearing the appeals constitutes a fact arising after the order of 5 November 2009 was made. Admittedly, this is a fact that was within the control of the respondent and, accordingly, it could be argued that the withdrawal of consent ought not be regarded as a fact within the meaning of r.668(1)(a). In my opinion, however, the non-continuance of the respondent's consent to my hearing the appeals is a new fact that is relevant to whether I should hear the matters. The overriding consideration is that the interests of justice must be served and the Court's impartiality preserved. The withdrawal of the consent is a very relevant factor to my fulfilling my ongoing duty to ensure that the proceedings are conducted fairly.
Accordingly, I consider that, pursuant to r.668, I have power to set aside the order listing these appeals for hearing before me for 5 days commencing 15 March 2010.
Alternatively, if I am wrong in that regard, then, pursuant to r.6 of the Land Court Rules as supplemented by r.7 of the UCPR, I consider that I have power to waive compliance with or extend the time limit set out in r.45(1)(b) of the Land Court Rules.
Rule 45(1) provides that the court may vary or set aside an order before the earlier of the following -
"(a) the filing of the order; or
(b) the end of 7 days after the making of the order."
The order in question has not been filed.
Rule 6 of the Land Court Rules provides that the court may waive compliance with a rule, or excuse non-compliance with a rule, if the court considers compliance would be likely to cause injustice or unreasonable expense or inconvenience.
Rule 7(1) of the UCPR provides that the court may, at any time, extend a time set by order.
Accordingly, if necessary, I waive compliance with or extent the time limit in r.45(1)(b).
In my opinion, the ongoing commercial relationship between my husband and Mr Gallo is such as to raise in the mind of the fair minded observer a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the questions in issue in these proceedings (see Johnson v Johnson[1]).
[1] (2000) 201 CLR 488 at 492.
I might add that I do not consider that the brief social meeting that I had with Mr and Mrs Gallo was sufficient to raise such an apprehension of bias even though the subject of Mr Gallo's water licence was mentioned briefly. The meeting was an isolated incident and the most that could be said about the water licence discussion was that it was apparent that Mr Gallo thought that he did not have a sufficient allocation, which is clear from these proceedings in any event.
I conclude therefore that I should not hear and determine these matters, on the ground of apprehended bias.
The appellants also raised the potential difficulty that might arise, if I were to disqualify myself, with the constitution of the Land Appeal Court should these matters proceed to an appeal. The appellants submitted that because there are only three Members of the Court, my disqualification would mean that the Land Appeal Court could not be constituted for such an appeal.
In my opinion this is not something that goes to the question of whether there is apprehended bias and does not override that issue. In any event it may well be that an additional Member will have been appointed to the Court by the time any appeal is made to the Land Appeal Court. Alternatively, there is provision in the Land Court Act 2000 for the appointment of acting Members if the conduct of the business of the Court requires such an appointment.[2] That section has been used in the past to appoint acting Members and I have every confidence that an appointment would be made under that section should the need arise.
[2] Section 19(1)(b).
The appellants also submitted that the respondent had breached his duty to act as a model litigant. I do not consider that there has been a breach of that duty.
However, both this application and the mention before Mr Jones on 10 November 2009 were caused by the fact that the respondent underwent a change of mind as to whether he consented to my hearing the appeals. In those circumstances I consider that the costs of the mention before Mr Jones and the costs of today's application should be paid by the respondent. Counsel's costs are to be limited to preparation and appearance by one counsel.
ORDERS
1. The President disqualifies herself from hearing and determining the appeals against review decisions in the matters WAA021-07 and WAA022-07.
2. The hearing of these matters set for 5 days commencing on 15 March 2010 is vacated.
3. These matters are to be allocated to another Member of the Land Court for determination.
4. The respondent Chief Executive, Department of Natural Resources and Water is ordered to pay the appellants' costs of and incidental to the mention on 10 November 2009.
5. The respondent Chief Executive, Department of Natural Resources and Water, is ordered to pay the appellants' costs of and incidental to the hearing of today's application. Counsel's costs are to be limited to preparation and appearance by one Counsel.
CAC MacDONALD
PRESIDENT OF THE LAND COURT
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