Irwin v Meander Valley Council (No 2) - [2007] TASSC 19

[2007] TASSC 19

CITATION: Irwin v Meander Valley Council (No 2) [2007] TASSC 19

PARTIES:  IRWIN, Karl
  HAYWARD, John
  v

MEANDER VALLEY COUNCIL (NO 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M40/2007
DELIVERED ON:  5 April 2007
DELIVERED AT:  Hobart
HEARING DATE:  5 April 2007
JUDGMENT OF:  Underwood CJ

[Edited edition of reasons for judgment delivered orally]

CATCHWORDS:

Procedure - Courts and judges generally – Judges – Disqualification for interest or bias – In general – Reasonable suspicion of bias – Shareholding in public company that has interest in outcome of proceeding – Test to be applied – Whether outcome likely to affect value of shares – Other matters – Risk of misconceptions affecting integrity of Court.

Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337, applied.
Aust Dig Procedure [5]

REPRESENTATION:

Counsel:
           Applicant:  P W Tree SC and R A Browne
           Respondent:  M E O'Farrell
Solicitors:
           Applicant:  FitzGerald and Browne
           Respondent:  Shaun McElwaine

Judgment Number: [2007] TASSC 19
Number of paragraphs: 12

Serial No 19/2007
File No M40/2007

KARL IRWIN AND JOHN HAYWARD v MEANDER VALLEY COUNCIL (NO 2)

REASONS FOR JUDGMENT UNDERWOOD CJ

(DELIVERED ORALLY) 5 April 2007

The applicants submit that I should not hear and determine their application for a review of the decision of the Meander Valley Council ("the council") to grant permits to G W and G K Richards to conduct forestry operations on land owned by them. Mr Tree SC, senior counsel for the applicants, made oral submissions on behalf of the first named applicant and handed up a written submission on behalf of the second named applicant.

The application for a review pleads that errors of law tainted the decision of the council and seeks an order that the decision be quashed. The Court's determination of the application does not involve a review of the merits for or against the grant of permits. It is concerned only to see that the process was in accordance with the law.

The application was served on Gunns Ltd because the Forest Practices Plans submitted by G W and G K Richards with their application to the council for permits nominate Gunns Ltd as the principal processor of the logs to be harvested from the land. At the last directions hearing, Gunns Ltd appeared by counsel and advised that it did not want to appear at the hearing of the applicants' application, nor address any argument for or against the order sought. Notwithstanding that, the applicants' submission is I should not hear and determine the application because my disclosure to counsel that my superannuation fund includes a parcel of 19,890 shares in Gunns Ltd would cause a reasonable apprehension in the mind of a hypothetical bystander that the decision was biased.

The law is clear about this. A judge should not hear and determine a case if the circumstances are such that to do so would give rise to a reasonable apprehension of lack of impartiality in the mind…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] TASSC 19
Decision Date: 5 April 2007

CaseChat Overview and Summary

Irwin v Meander Valley Council (No 2) involved a dispute between the plaintiff, Irwin, and the defendant, Meander Valley Council. The plaintiff sought a declaration that the council's decision to approve a development application was invalid due to alleged procedural irregularities. The case was heard in the Supreme Court of Tasmania.

The central legal issues in this case were whether the trial judge should have been disqualified due to a reasonable suspicion of bias arising from his shareholding in a public company that might be affected by the outcome of the proceedings. The plaintiff argued that the judge's shareholding gave rise to a reasonable apprehension of bias, potentially affecting the integrity of the court process. The defendant council contended that the shareholding did not constitute a disqualifying interest.

The court held that the test for disqualification involves assessing whether the outcome of the proceeding is likely to affect the value of the shares held by the judge. The court considered the nature of the interest, the extent of the shareholding, and the likelihood that the outcome would impact the shares' value. Additionally, the court examined the risk of public misconceptions regarding the integrity of the court process. In this case, the court found that the judge's shareholding did not create a reasonable apprehension of bias. The shareholding was not substantial enough, and the risk of public misconception was minimal.

The court dismissed the application for disqualification and the plaintiff's challenge to the council's decision. The court held that the trial judge's shareholding did not necessitate disqualification and did not affect the validity of the council's approval of the development application.

Orders