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

1. 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. 

1. 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.

1. 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.

1. 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 of a fair-minded and informed member of the public.  See R v Webb (1993) 181 CLR 41.

1. Recently, in Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337, the High Court addressed a claim that a fair-minded and informed member of the public would reasonably apprehend bias because a judge owned shares in a particular company. The facts in that case are akin to the facts in the present matter in that the only relevant factual question is whether it is reasonably possible that the decision might increase the value of Gunns' shares. At 351, the High Court said:

"… the question whether there is a realistic possibility that the outcome of the litigation would affect the value of the shares will be a useful practical method of deciding whether a fair-minded observer might hold the relevant apprehension."

1. Application of that test to the present matter easily leads to the conclusion that my continuing with this case would not give rise to a reasonable apprehension of bias in the mind of a fair-minded and informed observer.  Mr Tree accepted that there was no reasonable possibility that a decision about the permits granted to G W and G K Richards might affect the value of Gunns' shares.  However, he submitted that ground 6 of the application for a judicial review challenged the validity of the planning scheme insofar as forest industry was a conditional permitted use.  He told me that submissions would be made that there had been non-compliance with the provisions of the Land Use Planning and Approvals Act 1993 concerning public comment on the change from a discretionary use to a conditional permitted use. The submission was that this would affect all the rural land within the respondent's municipality and this raised a reasonable possibility that the decision in this case may affect the price of the shares. However, there is simply no material to support the claim made in ground 6, and no material to indicate how much land might be affected if ground 6 were upheld, nor the extent of Gunns' interest, actual or potential, in the affected land.

1. Further, Mr Tree submitted that the logging of non-plantation forest is a contentious political issue and that an investment in Gunns "could itself be construed as a statement of approval of that activity."  I reject this as a relevant issue.  So far as I am aware, Gunns carry on a lawful business.  Ownership of shares in any company carrying on its business in accordance with the law does not carry with it any particular view about that business other than that it is lawful.

1. The written submissions of the second named applicant are of no relevance.  Those on the first page appear to complain that in my written reasons for granting the interlocutory injunction I expressed views that in Mr Hayward's opinion were wrong and therefore I should not hear the case. The remainder of the written submission consist of Mr Hayward's analysis of two decision of mine handed down in 2000.  In one of them he was the prosecutor and the written submissions make it clear that in his view, the judgment was wrong and therefore I should be disqualified from dealing with the present case.  No reference is given for the other decision other than the year, but at all events the written submission appears to be a complaint about the outcome and/or the reasoning in the case.

1. Finally, Mr Tree submitted that this is a case where it would "be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification."  I reject the idea that the possibility of a successful appeal against any judicial decision could be a ground for disqualification.

1. I have referred to all this in a little detail because it is important to understand that judges should not step aside simply because a claim is made that bias on the part of the judge might be apprehended.  To do so would encourage litigants to make such claims in order to avoid a particular judge or to secure a hearing before a preferred judge; a practice known as "judge-shopping."  To permit this to happen would cause the Court to lose control over its business and diminish its authority.  This principle was expressed by the majority in Ebner's case in these terms at 348:

"Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case."

1. As I say, no case is made for me to disqualify myself upon the basis that the outcome might affect the value of the Gunns Ltd shares held by my superannuation fund.  However, unfortunately, there is another factor to consider.  Over the last twelve months or so there has been heated public controversy over the application by Gunns Ltd to build a pulp mill in Tasmania.  There is no need to detail that controversy.  It has been, and is, daily fare for the media and protest groups.  In the events that have occurred, the controversy has recently escalated to include allegations by a former member of this Court that the Premier of the State did not accurately report the contents of a conversation between the two of them and that he exerted some kind of pressure on the former judge.  There are other allegations.  They include that there is some kind of conspiracy between the Government of the day and Gunns Ltd with respect to the proposed pulp mill development, and that there should be a Royal Commission into claims of unlawful conduct.  As to whether there is any substance in any of these allegations, I express no opinion of course.

1. However, the atmosphere is such that if I continue to hear and determine this application, I perceive a grave risk that the biased observer might masquerade as the fair-minded and informed observer and seek to engage the media to embroil the Supreme Court of Tasmania in the current controversy.  Although Gunns Ltd do not wish to take part in this litigation, and although there is no likelihood that the outcome will affect the value of the company's shares, I shall direct that it be heard by another judge.  I do so to protect the integrity and independence of the Court which, in the current climate of continual heated claim and counterclaim, may be put at risk by the words and conduct of the mischievous or misguided if I proceed to determine the application myself.