H a Bachrach Pty Ltd v Council of the Shire of Caboolture

[1993] QCA 221

IN THE COURT OF APPEAL	[1993] QCA 221
SUPREME COURT OF QUEENSLAND	Appeal No. 109 of 1993
Brisbane [Bachrach v. Caboolture Shire Council]
BETWEEN:

H.A. BACHRACH PTY LTD. & OTHERS

Appellants

AND:

THE COUNCIL OF THE SHIRE OF CABOOLTURE

First Respondent

AND:

OSTERLEY PTY LTD

Respondent by Election

Mr Justice Pincus
Mr Justice McPherson

Mr Justice Davies

Judgment delivered 15 June 1993

Judgment of the Court

APPLICATION TO REVIEW GRANTED. Further orders are as follows:

1. Declaration that the decision of her Honour Judge
O'Sullivan disqualifying herself from the further hearing
of the appeal in these proceedings is wrong in law.

2.    Declaration that the proper course is for her Honour to resume the further hearing of the proceedings on a convenient date.

3. Liberty to apply.

on the basis of the order in Pine Rivers Shire
Council v. Dorfler - whether that order
confined to particular facts of that case -

whether disqualification wrong in law.

Counsel:  Mr P. Lyons Q.C., with him Mr T L Kirk for the

parties.

Mr B T Dunphy for Judge O'Sullivan

Solicitors:  Phillips Fox, for the parties
Crown Solicitor for Judge O'Sullivan

Hearing Date: 11 June 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 109 of 1993
Brisbane
Before	Mr Justice Pincus Mr Justice McPherson Mr Justice Davies

[Bachrach v. Caboolture Shire Council]

BETWEEN:

H.A. BACHRACH PTY LTD. & OTHERS

Appellants

AND:

THE COUNCIL OF THE SHIRE OF CABOOLTURE

First Respondent

AND:

OSTERLEY PTY LTD

Respondent by Election

JUDGMENT OF THE COURT

Delivered the 15th day of June 1992

This is an application to review a decision of her Honour

Judge O'Sullivan whereby her Honour disqualified herself from

further hearing a certain appeal.

The history of the matter is as follows. On 12 November

1992 the Court delivered judgment on an appeal from a judgment
of the Planning & Environment Court, being one of her Honour's
decisions. The appeal to this Court was allowed and the
matter remitted to the Planning & Environment Court "to
determine the appeal according to law on the basis of evidence
already called and such other evidence as the Court allows to
be called".

It appears that our decision was the subject of an

application for special leave to appeal, which was

unsuccessful.

The High Court's decision was given on 5 March 1993 and

10 days later there was a directions hearing before Judge
O'Sullivan, at which her Honour set the matter down for
further hearing on 5 July 1993. There was a further
directions hearing on 21 April 1993, at which her Honour
reserved her decision on a question as to the additional
evidence which would be allowed to be called.

On 10 May 1993 this Court delivered its judgment in Pine Rivers Shire Council v. Dorfler (Appeal No. 223 of 1992), a completely unrelated matter. In that case an appeal from another judge of the Planning & Environment Court was allowed and the matter was remitted to the Planning & Environment Court with the direction that the case be re-heard by a judge other than the one from whom the appeal to this Court was brought. The Court said :

"In our opinion, the latter direction is justified,
not because of any apprehension that the Judge below
would not justly deal with the matter but by the
necessity in the particular circumstances to ensure
that the appearance of impartiality is maintained".
[emphasis added]

It is of course plain that no new principle was laid down in

Dorfler's case.

On 25 May 1993 Judge O'Sullivan required the parties in

the present case to appear before her and disqualified herself
from further hearing the appeal. Her Honour did so quite
explicitly on the basis of Dorfler's case and declined to hear

any argument on the matter. She remarked :

"I am bound by the Court of Appeal decision".

It was, with respect, clear that that decision laid down no new rule, but simply applied familiar law.

It was argued before us that in so disqualifying herself

her Honour erred and that is without doubt so. The only other
circumstance which requires to be mentioned is her Honour's
further treatment of the matter at a hearing on 1 June 1993.
Her Honour then gave further reasons for her decision and it
is necessary to quote part of what was said. Referring to the

case before her, Judge O'Sullivan remarked :

"The question involved is the application of the
Strategic Plan to the evidence. The reasonable
apprehension of the public is that I was found by
the Court of Appeal to be wrong in this and as such,
the whole of my Judgment might be tainted, including
my findings of fact.".

If that were correct then it would apply in practically any case in which a judge, or indeed this Court, is reversed by a higher Court on a question of law; because people might think the whole of the judgment tainted, the original Court could hear the matter no further.

That is very plainly not so. It has often occurred that

a judge has been reversed on a question of law on a particular
appeal of a case and when the matter is remitted for further
hearing the same judge continues to hear the case. There is
no legal obstacle to that. Her Honour cited no authority for
the proposition implicit in the remarks we have quoted - i.e.
that if a judge is reversed on a question of law then because
the whole of the judgment might be thought to be tainted,

that judge can hear the matter no further.

The evidence before us includes an estimate of the costs

incurred by the parties up to the date of her Honour's
original judgment, of about $600,000. For reasons explained
by the learned primary judge it does not appear to us that,
whether or not the matter were to proceed before the same
judge, that sum would necessarily be wasted. However, in
holding that her Honour erred in disqualifying herself we do

not base our judgment on wasted costs but on an error in law.

It seems plain from the history of the matter that what

prompted the learned judge to disqualify herself, in a case
which she had up to that point intended to hear, was the
decision in Dorfler's case, which her Honour mistakenly
thought required her to disqualify herself. The Court's

further orders are :

1. We declare that the decision of her Honour Judge
O'Sullivan disqualifying herself from the further hearing
of the appeal in these proceedings is wrong in law.

2.    We declare that the proper course is for her Honour to resume the further hearing of the proceedings on a convenient date.

3. Liberty to apply.