Herron v Conservator of Flora & Fauna (Administrative Review) - [2021] ACAT 120

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HERRON v CONSERVATOR OF FLORA & FAUNA (Administrative Review) [2021] ACAT 120

AT 92/2021
Catchwords: ADMINISTRATIVE REVIEW – interim application – application to amend documents by order of the Tribunal – where redaction of meritless and irrelevant claims made in written submissions is sought – where redaction would prevent claims from being adjudicated – where serious allegations should be addressed – alleged appended bias – alleged issues of integrity – procedural fairness – principles of administrative review by the Tribunal – interim application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 47, 48

Subordinate

Legislation cited: Tree Protection (Approval Criteria) Determination 2006 (No 2)

Cases cited:Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20
Eldridge v ACT Planning and Land Authority [2020] ACAT 22
Periac & Anor v ACT Planning and Land Authority & Anor [2019] ACAT 118
Polleycutt and Planning and Land Authority [2012] ACAT 2

Tribunal:Presidential Member G McCarthy

Date of Orders:  7 December 2021
Date of Reasons for Decision:      7 December 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 92/2021
BETWEEN:
BENJAMIN GRAY HERRON
Applicant

AND:
CONSERVATOR OF FLORA & FAUNA
Respondent

TRIBUNAL:Presidential Member G McCarthy

DATE:7 December 2021

ORDER

The Tribunal orders that:

The respondent’s interim application dated 26 November 2021 is dismissed.
The period of time for compliance with order 7 made on 25 October 2021 is extended to 5pm on 7 December 2021.
The parties have liberty to apply to the Tribunal for further directions on two days’ notice.
………………………………..

Presidential Member G McCarthy

REASONS FOR DECISION

On 7 July 2021, the applicant, Benjamin Herron, applied to the office of the Conservator for permission to remove a tree on his land. On 20 July 2021, a delegate of the Conservator of Flora and Fauna made a decision not to grant approval to remove the tree (the primary decision).
On 26 July 2021, Mr Herron applied for reconsideration of the primary decision. On 31 August 2021, the Conservator confirmed the decision not to grant approval to remove the tree (the reconsideration decision).
By application dated 27 September 2021, Mr Herron has sought review of the reconsideration decision.
On 25 October 2021, the Tribunal made orders to prepare the matter for hearing. Mr Herron was ordered to file written submissions “setting out what the applicant says is the correct and preferable decision in the facts of the case, and explaining why that would be the correct and preferable decision”.
In his written submissions, Mr Herron relies on paragraph 1(3)(a) of the Tree Protection (Approval Criteria) Determination 2006 (No 2) (the Determination) which provides:
(3) When deciding whether the criteria in paragraph 1 are met, the Conservator may consider:
(a)any exceptional circumstances that have been raised by the applicant, taking into account advice from the Tree Advisory Panel
In paragraph 49(a)-(s) of his written submissions, Mr Herron lists the circumstances that he contends are “exceptional” for the purposes of paragraph 1(3)(a) of the Determination.
Among them are paragraphs 49(l)-(s), which allege that two familial relationships between those involved in this matter give rise to an apprehension of bias, favouritism and a lack of integrity.
First, he relied on the circumstance that the brother of the primary decision-maker (not the maker of the reconsideration decision under review in this proceeding) also worked in “Tree Claims” and that the primary decision-maker is, Mr Herron said, his brother’s manager.
Second, he relied on the circumstance that the mother of the solicitor in the office of the ACT Government Solicitor who acts for the Conservator in response to Mr Herron’s application to the Tribunal also works in the office of the ACT Government Solicitor. He said there is a “line of reporting” between the solicitor and her mother.
These familial relationships, he said, raise apprehensions of favouritism and bias, and an apprehended lack of appointment on merit.
In paragraph 50 of his written submissions, the applicant stated that he had decided to request the Tribunal to proceed to “Decision without hearing” of his application for review because he does not believe that his interests as a member of the public are being served by the respondent and he has lost confidence in the respondent and the respondent’s legal counsel. He submitted that he has a reasonable apprehension of bias within the “ACT Government’s legal office”, and that this may be damaging to individual persons’ reputations and careers. Mr Herron said that such damage is not his “objective”, and that he just wishes to remove the tree.
He submitted that not conducting a hearing of his application “will best afford” the Tribunal, the Justice and Community Services Directorate, the persons named in his written submissions and three named Government Ministers an “opportunity to consider how best to handle this mess without it being revealed to the public or press”.
In paragraph 52 of his written submissions, Mr Herron expressed his concern that “the respondent’s and the respondent’s counsel’s[1] affairs could damage the reputation and independence of ACAT” if the matter proceeds, and that it was therefore “appropriate in the circumstances” for the Tribunal “to conclude this matter and decide in favour of the applicant”.
[1] It is apparent from Mr Herron’s written submissions that the reference to the “respondent’s counsel” is a reference to legal practitioners employed in the office of the ACT Government Solicitor
On 6 December 2021, at the hearing of the respondent’s interim application referred to in the following paragraph, Mr Herron explained that by deciding in in his favour, he meant the Tribunal should rule that the applicant may remove the tree. He requested this outcome.
On 26 November 2021, the respondent, the Conservator, filed an interim application by which he sought orders that the above-mentioned paragraphs of Mr Herron’s submissions be “redacted”. The Conservator sought this order pursuant to section 47 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), pursuant to which the Tribunal may order that a document in relation to an application be amended.
These reasons concern determination of the Conservator’s interim application.
At hearing of the respondent’s interim application, Mr Herron said that the perceived lack of integrity and the perception of “non-procedural fairness” were bound up in his claim of apprehended bias, but should also be considered “separately and together”. He said that what has occurred is below the standard of conduct that members of the public should expect of Government.
He submitted it was necessary for the Tribunal to review the administrative processes leading up to the decision under review which, he said, would show apprehended bias.
He submitted that it would be “a bad look” if the Tribunal ruled that the conduct of those involved was “all fine”, and that the better option was for the Tribunal to avoid having to do so by approving removal of the tree.
Ms Musgrove of counsel, appearing for the Conservator, pointed out that the primary decision-maker’s brother had no involvement with Mr Herron’s application to remove the tree. Mr Herron accepted that was so, but contended it made no difference. There should still be a review of the administrative process, he said, arising from the circumstance that the primary decision-maker’s brother works in the same office.
Ms Musgrove pointed out that the solicitor acting for the Conservator had no role in the making of the primary decision or the reconsidered decision. The solicitor’s involvement began when the Conservator instructed the ACT Government Solicitor to act for him in response to Mr Herron’s application to the Tribunal. Ms Musgrove also pointed out that the solicitor is an officer of the Supreme Court and holds important professional obligations to uphold the law without fear or favour. There is no suggestion that she has done otherwise.
Mr Herron alleged that none of this is relevant. He relies on the fact that the solicitor works in the same office as her mother which, he says, raises “almost unavoidable implicit bias” regarding the process by which she obtained her current position. He submitted not only that the solicitor should not be acting in this matter, but should not be acting in any matter by reason of the apprehension of bias regarding her appointment. He submitted that “the absolute highest standards of integrity are expected from legal practitioners representing Government”, and that for the practitioner’s mother to have allowed her daughter’s appointment “is a concern, and at the very least opens the door to a perception of non-procedural fairness”.

Consideration

There are at least two difficulties with Mr Herron’s submissions.
First, as I tried to explain to Mr Herron at hearing, the Tribunal’s function on review of the reconsideration decision is to determine, on the evidence before it, whether removal of the tree is the correct or preferable decision. It considers the matter afresh. I tried to explain, therefore, that any procedural errors leading up to the decision under review, including any bias on the part of those involved in making the decision, are not issues with which the Tribunal needs to be concerned. Earlier tribunal decisions such as Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20 at [5], cited with approval in Eldridge v ACT Planning and Land Authority [2020] ACAT 22 at [21], Periac & Anor v ACT Planning and Land Authority & Anor [2019] ACAT 118 at [138], and Polleycutt and Planning and Land Authority [2012] ACAT 2 at [18], [24], are authority for that proposition.
Mr Herron agreed this was a strong argument, but contended that the familial relationships giving rise to apprehensions of bias, favouritism and lack of integrity were still “worthy of consideration” by the Tribunal.
Second, the Tribunal’s jurisdiction is to review the decision not to grant approval for removal of the tree. Mr Herron submits that his claims of apprehended bias, lack of integrity and failure to adhere to standards of conduct are “exceptional circumstances”, for the purposes of paragraph 1(3)(a) of the Determination, that warrant a grant of approval to remove the tree. I struggled to see the connection. The “exceptional circumstances” referred to in paragraph 1(3)(a) are circumstances relevant to “deciding whether the criteria in paragraph 1 [of the Determination] are met”. The criteria in paragraph 1 are all factors concerning the circumstances of the tree. How the familial relationships giving rise to Mr Herron’s claims of apprehended bias and lack of integrity have any bearing on whether those criteria are met is unclear.
However, determinative of my decision to dismiss the Conservator’s interim application is Mr Herron’s submission regarding the path this Tribunal should take to avoid public scrutiny of the decision under review.
He submits that the processes leading to the reconsideration decision give rise to apprehended bias, apprehended lack of integrity, and/or do not accord with the high standards of conduct expected of government. He then submits I should approve the removal of the tree, not by reference to the facts and the law governing the question of whether the tree may be removed, but in order to avoid revealing “to the public or press” the apparent lack of integrity of those involved and their apparent lack of compliance with expected standards of conduct. The submission is ironic. In substance, he invites the Tribunal to adopt a course that unquestionably lacks integrity.
Unless Mr Herron discontinues his application entirely, I am satisfied that it should proceed to hearing for determination according to law.
Sometimes a court or tribunal will not permit its processes to be used as a platform for a litigant to make accusations of the kind made in Mr Herron’s written submissions. However, in this case, I am not prepared to “redact” Mr Herron’s claims – however lacking in relevance or merit they seem. To strike them out at this point would be to permit Mr Herron to maintain his claims ‘to the world’ and to state into the future that he was denied the opportunity to make them good. I am not prepared to permit that situation to arise.
Mr Herron’s allegations against the integrity and conduct of those involved in this application are extremely serious – some would say, scandalous. Mr Herron needs to decide whether to withdraw them or put his case about them. In my view, to leave such accusations unresolved, where they are made vicariously in the context of an application to remove a tree, is also unfair to the persons against whom they have been made.
When deciding what course to take, I invite Mr Herron to consider that his claims regarding apprehended bias and lack of integrity might not have any bearing on the outcome of his application for the reasons set out in paragraphs 24 and 26 above. That would be for the member of the Tribunal who hears this application to decide.
I also invite Mr Herron to consider that if he proceeds with these claims the Conservator might seek an order that he pay the Conservator’s legal costs attributable to its response to at least this part of his application, pursuant to section 48(2)(d) of the ACAT Act, on the grounds that the claims are vexatious, lacking in substance or otherwise an abuse of process.
I am prepared to give Mr Herron time to decide whether to withdraw his claims at paragraphs 49(l)-(s), 50 and 52 or to proceed with them. If he decides to proceed, I accept that he may need further time to file evidence in support of his claims. I accept that the Conservator would need time to file evidence and submissions in reply.
It is for the parties to decide how they wish to proceed in light of these reasons. At present, my orders are only to dismiss the Conservator’s application; to record (by consent) an extension of time for the parties to file their lists of authorities, in compliance with order 7 made on 25 October 2021; and to give the parties liberty to apply to the Tribunal for further directions on two days’ notice.
………………………………..

Presidential Member G McCarthy

Date(s) of hearing:	6 December 2021
Applicant:	In person
Counsel for the Respondent	Ms K Musgrove
Solicitors for the Respondent:	ACT Government Solicitor