Hayes v Development Assessment Commission & Ors (No 3) No. SCGRG 97/171 Judgment No. 6059 Number of Pages 8 Procedure

[1997] SASC 6059

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DEBELLE, J

Procedure - courts and judges generally - disqualification for bias - reasonable suspicion of bias - Judge involved in two earlier applications for judicial review involving the same parties - new application for judicial review - application for Judge to disqualify himself on grounds of perceived bias - comments by judge when publishing his reasons in the second judicial review and at a directions hearing in the current judicial review - whether the comments give rise to a reasonable apprehension of bias - no cause for reasonable apprehension of bias - application dismissed. The Queen v Watson; ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW Bar Association (1983) 151 CLR 288; re JRL; ex parte CJL (1986) 161 CLR 342; Webb v The Queen (1994) CLR 181 at 41; R v Dairy Produce Quota Tribunal; ex parte Caswell (1990) 2 AC
738; R v O'Sullivan; ex parte Clarke (1967) WAR 168; R v Herrod; ex parte Leeds City District Council [1976] QB 540; Rivers v Bondi Junction - Waveley RSL Sub-Branch Ltd (1986) 5 NSWLR 362; R v Lusink; ex parte Shaw (1980) 55 ALJR 12, applied.

ADELAIDE, 17 February 1997 (hearing), 7 March 1997 (decision)

#DATE 7:3:1997

#ADD 28:4:1997

Plaintiffs Joy Hayes and ors:

Counsel: Mr B Hayes QC With Mr M Beamond - Solicitors: Mellor Olsson

Applicant Prizac Developments Pty Ltd:

Counsel: Ms E Nelson QC - Solicitors: Mr N Minicozzi

Defendant Development Assessment Commission:

Counsel: Mr C Brooks - Solicitors: Crown Solicitor for The State of South Australia

Defendant Corporation of The City of West Torrens:

Counsel: Mr M Roder - Solicitors: Norman Waterhouse

Order: application dismissed.

DEBELLE J

1. This is an application that I should disqualify myself from hearing this application for judicial review. The application is made on the ground of perceived bias.

2. This application for judicial review seeks to quash a decision of the Development Assessment Commission ("the Commission") granting provisional development plan consent to the Corporation of the City of West Torrens ("the Council") to construct a shopping centre at Hilton. It is the third application for judicial review concerning the proposed development by the Council. In two earlier decisions of this Court, orders have been made quashing decisions of the Commission granting provisional development plan consent for the proposed shopping centre: see Hayes v Development Assessment Commission (unreported, delivered 5 June 1996, Judgment No. S5667) and Hayes v Development Assessment Commission (No 2) (unreported, decision published 24 September 1996, Judgment No. S5820). It is helpful to recite the events leading to this third application for judicial review in a little more detail.

3. In 1994 the Council applied to the Commission for provisional development planning consent to develop a neighbourhood shopping centre on the subject land. On 11 October 1994 the Commission refused the application.

4. On 13 July 1995 the Council again applied to the Commission to develop what it described as a "neighbourhood level retail shopping centre" on the subject land. On 14 November 1995 the Commission refused this application. The Council later applied to amend the proposed development but the Commission refused to accept the amendment. On 24 November 1995 the Council appealed to the Environment Resources and Development Court against the decision of the Commission made on 16 November 1995. The appeal has not yet been heard. It has been adjourned from time to time for reasons including the fact the Council had lodged another application for development consent.

5. On 2 January 1996 the Council lodged at the Commission its third application to develop a neighbourhood shopping centre on the subject land. The proposal was almost identical to the second application as amended. On 20 February 1996 the Commission granted provisional development plan consent subject to certain conditions. The plaintiffs applied for orders quashing that decision. On 5 June 1996 an order was made quashing the decision of the Commission made on 20 February 1996 granting provisional development plan consent.

6. Following that decision the Council resubmitted the third application to the Commission. The Commission again considered the application at its meeting on 18 June 1996. It decided to grant provisional development plan consent subject to conditions. The plaintiffs sought orders in the nature of certiorari and orders in the nature of declarations quashing the decision. On 24 September 1996 I made an order in the nature certiorari quashing the decision and made certain declarations.

7. In a report to the Commission dated 17 October 1996, the Council reviewed the judgment published on 24 September and submitted that the development proposed by the Council warranted a grant of provisional development plan consent. On 22 October 1996 the Commission advised that on 5 November 1996 it would hear further representations in relation to the proposed development. Thereafter, submissions were heard. On 3 December 1996 the Commission granted provisional development plan consent subject to a number of conditions. On 5 December 1996 it approved a variation of the proposal. This application for judicial review seeks to quash the decisions of the Commission made on 3 and 5 December 1996. The grant of provisional development plan consent made on 3 December 1996 was for the same proposal as had been initially submitted by the Council on 2 January 1996.

8. The plaintiffs have consistently made representations to the Commission objecting to all of these proposals. In this action, the first defendant is the Commission, the second defendant is the Council, and the third defendant is Prizac Developments Pty Ltd ("Prizac"). Prizac has recently purchased the subject land from the Council with the benefit of the development consent. It is Prizac which makes this application.

9. Prizac refers to the well-established principle that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: The Queen v Watson: ex parte Armstrong (1976) 136 CLR 248, 258 to 263; Livesey v NSW Bar Association (1983) 151 CLR 288, 293 to 294; re JRL: ex parte CJL (1986) 161 CLR 342, 351 and Webb v The Queen (1984) 181 CLR 41. As Mason J observed in re JRL; ex parte CJL (supra) at 351:
"The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: Reg. v. Watson; ex parte Armstrong (1976) 136 CLR 248, at. 258-263; Livesey v. NSW Bar Association (1983) 151 CLR 288, at 293-294. This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done."

10. Prizac also relies on the following observations in Livesey v NSW Bar Association (supra) at 294:
"In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters 'of degree and particular circumstances may strike different minds in different ways' (per Aickin J. in Shaw (1980) 55 A.L.J.R., at p. 16. If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."

11. Prizac says that it does not allege actual bias but that I have expressed views in such a way that there is a real possibility that my continued participation in the application for judicial review would give rise to a reasonable apprehension of prejudgment or bias. Prizac asserts this perceived bias on the basis of two statements made by me, the first when publishing my reasons for judgment and making orders on the second application for judicial review and the second in the course of a directions hearing concerning this application for judicial review.

12. When I handed down my reasons for judgment on 24 September 1996, Ms Nelson QC informed me that the matter would be "revisited before the Development Assessment Commission". The following colloquy then took place:
"MS NELSON: I raise another matter of which I am uncertain myself. This is the second time that there has been an approval for this proposal. It is the second time it has been quashed on judicial review. My instructions are that, the matter will be revisited before the Development Assessment Commission.
HIS HONOUR: There is nothing which prevents your client from putting in an application for a smaller proposal, but, that is for your client to decide how to consider it.
MS NELSON: I am wondering if your Honour has powers to remit the matter for further consideration by the Development Assessment Commission, rather than a fresh application having to be lodged?
HIS HONOUR: I don't know what it is your client wants to do and in any event, I don't know that I have that power. The decision is quashed. For example, to go back to what happened when I made the decision in May, the first decision, your client then asked the Commission to reconsider the application.
MS NELSON: My client had to lodge a separate application and it is really I would have thought the case, that the applications extend. Those are my instructions. I mean, it is the decision that your Honour is quashing. The application is, I would have thought, extant before the Commission.
HIS HONOUR: They can hardly say 'we will reconsider the same application.' If your client decides it is going to put a smaller supermarket there must be, of necessity, a fresh application.
MS NELSON: Certainly.
HIS HONOUR: I would have thought, at the moment, there is no power to remit and in light of the decisions, it would be a fairly dangerous thing to remit it. It is not a question of whether a supermarket or a retail shopping centre be on the site, but the size of it, that is the issue.
MS NELSON: Very well."

13. Ms Nelson QC now submits on behalf of Prizac that in that exchange I have expressed myself in a way in which a fair minded observer could reasonably apprehend the possibility that I had formed a judgement about the issues in this application. She refers to my statement that there is nothing to prevent her client from applying for a smaller proposal and the later reference to a possibility of a smaller supermarket.

14. With all respect to the submissions by Ms Nelson QC, there is nothing in the remarks to which she refers which justifies a perception of bias. When Ms Nelson sought an order that the matter be remitted to the Development Assessment Commission, nothing had been said by her as to the nature of the intended application or by whom it would be lodged. Her statement that "the matter will be revisited" by the Commission said nothing about how that was to occur. The Council could have resubmitted the existing application or it could have lodged an application for a smaller proposal. Alternatively, Prizac might have lodged an application either for the proposal then before the Commission or for a smaller proposal. As I said to Ms Nelson, I did not know what was to be submitted to the Commission. I referred to the possibility of an application for a smaller centre but immediately qualified that remark by stating it was for her client to decide what it wished to do. Very soon after I said I did not know what her client intended to do. I pointed to what had occurred after the first decision quashing the development consent, namely, that the Council had asked the Commission to reconsider the same application. It is relevant to add that, if the Council intended to recommit the application to the Commission, there was no need for an order that the application be remitted to the Commission.

15. I informed Ms Nelson that I did not know what her client intended to do. Had Ms Nelson clearly indicated that it was intended that her client Prizac would seek to recommit the existing application once more to the Development Assessment Commission to consider in the light of the reasons just published, I would have pointed out that it might have to make a fresh application as the previous applicant was the Council. Had she stated that the Council intended to recommit the existing application, I would have expressed myself differently. It is to be noted that Mr Tredrea, who appeared for the Council, did not state that the Council intended to recommit the application to the Commission. Thus, however the matter was regarded, it was not appropriate to order that the matter be remitted to the Commission for further consideration.

16. Ms Nelson also submits that the last of the remarks I made also gives rise to a perception of bias. That submission fails to have regard to the fact that it is manifestly apparent that a very important issue in both of the applications for judicial review was the size of the retail shopping centre. A considerable part of the argument in the second application centred on the relevant provisions of the Development Plan concerning the size of a supermarket and of the extent of retail floor space permitted in the zone in which the proposed retail shopping centre was to be located. A statement expressing the issues in an action is not an expression of bias nor a proper ground for perception of bias.

17. The second statement which, it is said, reasonably gives rise to a perception of bias was made in these proceedings. This application for judicial review was issued on 20 January 1997. The application came before a Master who granted leave to serve the application. The Master remitted the application to me for further directions. On 7 February 1997 I called the matter on for directions. I informed the parties that I had promptly listed the matter for directions, not only because there had been two earlier applications for judicial review, but also because it was important for Prizac to know its position. It was desirable, therefore, that there should be a prompt disposition of the issues. I informed the parties that a date was available for hearing the application in February and asked if there was any reason why it should not be listed in February. No party raised an objection to a listing in February and it was listed for hearing on 21 February. It later transpired that the date was unsuitable for one of the parties and the hearing had to be adjourned to another date.

18. In the course of the directions hearing on 7 February, Mr Minicozzi, who appeared for Prizac, said that his client wished to raise the question of delay as a preliminary issue. I expressed the view that it was probably not a matter to be determined as a preliminary issue. The transcript of the remarks made by Mr Minicozzi and me reads:
"MR MINICOZZI: My client's major concern, of course, is the fact that work has commenced on-site. Substantial work has been undertaken, and the consequences of stopping that work is a matter of great concern to my client.
HIS HONOUR: The papers suggest you had notice of the attitude from the outset, so you must be proceeding at your own risk.
MR MINICOZZI: I accept that. I accept we've had notice at the outset, but the papers don't indicate that I did give notice to Mellor Olssons some time ago. In fact, shortly after the DAC approval was given, that work would commence as soon as practicable, so the issue of delay is one thing my client wants to raise, and I'm going to need some time to prepare an affidavit in that regard. My instructions, as they stand at the moment, is to have that matter, the delay issue, determined as a preliminary issue.
HIS HONOUR: I would not be amenable to that, Mr Minicozzi. On the fact of it, at the moment, that's an issue which goes to discretion.
In any event, I mean, it's not the kind of thing that can be heard and determined as a preliminary issue. The cases make it quite clear, and the principles are well settled, that the question of delay is one of the matters which will be considered by a court in determining whether relief should be granted.
It could be, to take a hypothetical instance, the case against you could be overwhelming, so overwhelmingly strong, that even if there'd been a delay of 6 months, the relief would have to go. I take that purely as a hypothetical, and there are cases where that has been so.
Delay, as it were, goes into the basket of matters to be considered so I would, as at present, advise that I would not be disposed to hear it as a preliminary issue. It seems to me that there really isn't any reason." (The transcript of that last paragraph is slightly incorrect. It should state "... as at present advised, I would not be disposed ..."

19. It is a well established principle that a Court will have regard to delay in the exercise of its discretion when determining whether the plaintiff is entitled to the relief which it seeks, be that relief an order of the nature of certiorari: see, for example, Reg v Dairy Produce Quota Tribunal; ex parte Caswell (1990) 2 AC 738; Reg v O'Sullivan; ex parte Clarke (1967) WAR
168 and Reg v Herrod; ex parte Leeds City District Council [1976] QB 540, or an order in the nature of declaration: see, for example, Rivers v Bondi Junction - Waveley RSL Sub-Branch Ltd (1986) 5 NSWLR 362, 372-3, 376-377. It seemed to be inappropriate to consider delay as a preliminary issue particularly where, as here, the application for the order in the nature of certiorari had been made within two months of the decision which is challenged in these proceedings.

20. It is apparent, that while I have expressed, perhaps firmly expressed, a view as to the question of delay, it is not a final view. Prizac had not then applied to have the question of delay heard as a preliminary issue. Nor had it applied to seek to set aside the order granting leave to serve. I merely pointed to the difficulties inherent in an application that delay be heard as a preliminary issue. I had qualified my observation by the expression "as at present advised". The expression of the view concerning delay was tantamount to the formulation of a proposition for the purpose of enabling its correctness to be tested. If that is to arrogate to the remarks a status in which is undeserved, the remarks come under the heading of comments made in the course of a hearing which are exploratory. In neither instance are remarks of that kind a ground for reasonable apprehension of bias; see Reg v Lusimk; ex parte Shaw (1980) 55 ALJR, at 14 where Gibbs J said:
"It is not uncommon, and sometimes necessary, for a judge, during argument, to formulate propositions for the purpose of enabling their correctness to be tested, and that "as a general rule anything that a judge says in the course of argument will be tentative and exploratory". However, in some cases the words or conduct of the judge may be such as to lead the parties reasonably to think that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the court which is asked to grant prohibition will not likely conclude that the judge may be reasonably suspected of bias in this sense; it must be "firmly established" that such a suspicion may reasonable be engendered in the minds of the parties or the public, as was made clear by the Court in Reg v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 pp. at 553 - 554, in the passage cited in Reg v Watson ex parte Armstrong at p. 262"

21.

To this should be added the following remarks of Wilson J in re JRL; ex parte CJL (supra) at 359 -360:
"A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding. There must be "strong grounds" (Reg v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (40)) for inferring the existence of a reasonable suspicion."

22. His Honour then went on to refer to the above passage from Shaw. The applicant misconstrues the effect of the remarks I made on the question of delay. They do not justify a reasonable apprehension of bias.

23. In addition to examining them separately I have considered the combined effect of the two sets of remarks of which Prizac complains. I do not believe that there is cause for a reasonable apprehension of bias.

24. In conclusion it is relevant to refer to the observations of Mason J in re JRL ex parte CJL (supra) at 352:
"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey
(1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg. v. Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546, at 553-554; Watson
(1976) 136 CLR, at 262; Re Lusink; ex parte Shaw (1980) 55 ALJR 12, at 14; 32 ALR 47, at 50-51. 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."

25. His Honour was referring to previous decisions being used as a ground on which to assert a reasonable apprehension of bias. The observation will apply with greater force where, as here, the application is grounded not on a decision but on a remark made in the course of the hearing for the purpose of identifying the issues.

26. It is appropriate to add two further observations. I called this application on at the soonest reasonable time for the purpose of ascertaining if it were possible to have a early hearing date so that the parties, who had already been involved in two earlier applications for judicial review, would know their respective positions. The plaintiffs would wish to know whether the development was proceeding and Prizac, as the developer which had already been delayed, would know its position as soon as was reasonably possible. That is apparent on reading the transcript of the proceedings of 7 February. The fact that I had done so demonstrates a desire to have the legal issues resolved as soon possible. It is quite inconsistent with the perceived bias for which Prizac now contends. In addition, as the transcript from hearing 17 February discloses, I informed Ms Nelson QC that I intended to raise the question whether the plaintiff was barred from bringing these proceedings by reason of the principles expressed in Port of Melbourne Authority v Anshun Pty Ltd
(1980) 147 CLR 589. That was no more an expression of prejudgment than any other remark made by me in the course of either hearing.

27. For all of these reasons the application is dismissed.