Isaacs v Bluegate Nominees Pty Ltd

[1995] HCATrans 93

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P1 of 1995

B e t w e e n -

CLARRIE ISAACS

Applicant

and

BLUEGATE NOMINEES PTY LTD

Respondent

Application for special leave to appeal

DEANE J
DAWSON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 APRIL 1995, AT 3.43 PM

Copyright in the High Court of Australia

MR G.M. McINTYRE:   If it please your Honours, I appear with my learned friend, MS C.P. FOUGERE, for the applicant.  (instructed by Dwyer Durack)

MR C.L. ZELESTIS, QC:   May it please the Court, I appear with my learned friend, MR R.J. MEADOWS, for the respondent.  (instructed by Freehill Hollingdale & Page)

DEANE J:   Yes, Mr McIntyre.

MR McINTYRE:   Yes, your Honours.  We contend that there is an underlying matter of principle arising out of, in particular, the second question, which is the question as to whether the Full Court of the Supreme Court of Western Australia acted within its power in an appeal on a question of law in directing the issue of the licences on the basis of the view it took of the public interest issue.  Now, what that involves is a consideration of section 28 of the Liquor Licensing Act, which is the section which empowers the Full Court to hear appeals.  In particular one needs to look at subsection (2), which says that:

No appeal lies against a decision of the Court unless the appeal involves a question of law.

And the third subsection that:

No appeal lies against a decision of the Court made on review of a determination made by the Director, except upon a question of law.

And then, of course, there are powers in subsections (4) and (5) as to how the court would deal with those appeals, having considered them.

This particular matter was an appeal under subsection (3), so that it was an appeal from a review of a determination by a director and therefore it is strictly limited to a question of law, and we say that there is an interesting distinction between that and subsection (2), which relates to an appeal involving a question of law.  There is ample authority to suggest that when the legislature uses the phrase “involves a question of law”, then of course, provided there is at least one question of law, the Appeal Court can consider questions of fact and can determine issues in relation to both law and fact.

We say that if an appeal is restricted by a section of this kind, that is subsection (3), to a question of law, then the Appeal Court cannot go on, having determined that issue, to then deal with the matter by taking into account questions of fact and making determinations in relation to questions of fact.  Many Appeal Courts governed by other statutory provisions are able to do that.  Ordinarily, for instance, a Court of Criminal Appeal or a Full Court dealing with an appeal from a single judge of the Supreme Court is dealing with a general investiture of the appeal power and therefore it can of course deal with questions of both law and fact.  The rule of course in that situation is that where the evidence is uncontested and the findings of fact are sufficient and adequate, then it can make its own determination of questions of fact.

DEANE J:   Where is the section as to - it is (5).  Is not your problem here though that the appeal based on ostensible bias, one would have thought, did involve a question of law.  Once that appeal succeeds, the decision below is vitiated.  So one then moves direct to 28(5).  I am not putting that as an opinion.  It should have come out more like a question.

MR McINTYRE:   That is the proposition put against us of course.  What we say is that really what then is required to happen is for the matter to be remitted.  The real error in what the Full Court did was to not remit the matter back to the administrative body to make the administrative decision.  It took upon itself the making of that administrative decision.  That is the real question which is at issue in these proceedings.  We say of course it is wrong in the decision it reached as to the correctness of the decision of the liquor licensing judge but, assuming it is right, assuming that there is a reasonable apprehension of bias and the appeal should be allowed, what we say is the important question of principle that gives us a special leave leg is the question of what the court then should have done with the matter.  We say that they have trespassed into the executive function in making the determination which they did effectively.

McHUGH J:   That is not a question of principle, is it?  It just simply means that on a view of the particular facts of the case, they went on and decided issues.  In an appropriate case they can do that, can they not?

MR McINTYRE:   Well, no, we say that they cannot and we say that they cannot because the proper interpretation of section 28 prevents them from doing that.  And we say that there is an interesting question here because one would accept that subsection (5) is open-ended in the same way that it is in any other provision relating to appeals.  It would appear to allow the full range of powers of an Appeal Court.  But, one has to, we would suggest, infer into that, a distinction between the roles which the court is performing under section 28(2) and the role which it is performing under section 28(3).  And it is our suggestion that one needs to infer into subsection (5) a limitation upon the exercise of those powers, depending upon which of those two subsections the court is proceeding under.

DEANE J:   I see the force of that normally but, when you move into the area of ostensible bias and the effect it has on the decision below, you are in a particular area and I could see there the force of an argument, “Well, really they should have taken the view this is better left to the director or the tribunal below.”  But it is a hard argument that they lacked jurisdiction.

MR McINTYRE:   Well, they do not lack jurisdiction to make a ruling on whether there is a question of bias or not because that is clearly a question of law.

DEANE J:   Which means that having been ruled, everything below goes.

MR McINTYRE:   Yes, and then we say that they are not an executive body and, therefore, they cannot formulate a view as to what the public interest is which is, effectively, what the Full Court did.  And you need really to look at what Justice Rowland said in his judgment.

McHUGH J:   But they can surely make any decision that the court could have made.

MR McINTYRE:   No, we say that they cannot.  We say that the court ‑ well, because it is not a court, whilst it is called the Liquor Licensing Court, when it is exercising its power of considering applications for liquor licences, it is exercising an executive function.

McHUGH J:   But that does not matter;  it is not a Federal Court.

DAWSON J:   And courts often decide questions of public interest.  When they decide them, they decide them as a question for the court, maybe that there are administrative decisions elsewhere.

MR McINTYRE:   We say that this is a statutory provision which says that the public interest shall be determined in granting a privilege by the executive.  The Liquor Licensing Court when exercising this function is also the liquor licensing authority.  In other circumstances it is a court when it fines holders of licensers and deals with them in a criminal jurisdiction, but when it is considering whether or not to grant the privilege of a liquor licence, it is exercising a purely administrative function.

DAWSON J:   Maybe it is, but when the court comes to consider the matter why can it not make a decision on the same question, exercising judicial power?

MR McINTYRE:   Because this is actually the other side of the coin to this Court’s recent decision in Brandy v The Human Rights and Equal Opportunity Commission.  Whilst there are limitations upon what an administrator can do in moving towards exercising judicial power, it is our contention that a judicial authority has some limitation upon it when it moves towards exercising ‑ ‑ ‑

McHUGH J:   There is none whatsoever on courts in Western Australia.  Where does the limitation come from?

MR McINTYRE:   The limitation comes from this particular Act, for instance.  Section 28(3) which says that the Court may make a:

review of a determination made by the Director -

only on -

a question of law.

DAWSON J:   Having done that, it may affirm, vary or quash the decision or remit the matter.

MR McINTYRE:   Yes, but we say that given that there is a separation of powers between the judiciary and the executive, that there is an implied limitation as to how far the court will go.

McHUGH J:   I think we have got the point and you have got a limitation of time.

MR McINTYRE:   Yes, well that is the first point.  The second point is in relation to the question of the apprehension of bias.  Essentially what we say about the apprehension of bias issue is that the Full Court has distinguished Polites in order to come to the result that it has.  It said that - it has effectively adopted the headnote in the report of Polites which says at the beginning of (1991) 173 CLR 78:

The requirement that a member of a tribunal should not hear a case if there is a reasonable apprehension that he might not bring an impartial and unprejudiced mind to its resolution cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances -

Of course, that was the situation in Polites because it was about an Industrial Relations Court and the court said, certainly in that case where you have to have a qualification, therefore, you cannot be seen to be biased if you have some prior knowledge.  What the Full Court of the Supreme Court has done is to elevate that to a matter of principle and to say well that is the principle by which we are guided in this case.  Judge Greaves did not have an expertise which specifically qualified him to perform his function in the Liquor Licensing Court.  If he had any prior knowledge it was in relation to an unexpected area of expertise, therefore, the principle in Polites does not apply.

The principle, we say, is what is in the second paragraph of the headnote and that is that:

A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or court) -

We say that is the first way in which the Full Court has essentially misapplied the law as it is determined in this case and seems to be setting up another approach in principle as to how you deal with questions of apprehension of bias, when you are dealing with people who have been legal practitioners and then become judicial officers in some other place, that unless you can show that their expertise is in a particular field of a specialised court in which they have been appointed, then you do not start with the proposition that a prior legal relationship is assumed not to disqualify you. 

The other two errors which they fell into which are also matters of significant ramifications, we suggest, are that, firstly, they did not follow the dicta in Re JRL and Ex parte CJL, which is a Family Law case, where his Honour the then Chief Justice Mason said that a reasonable apprehension of bias by reason of prejudgment must be firmly established.  We say that really they relied on a series of inferences which they had expressed in this way:  that he was a solicitor on the record who has been supporting the cause of the same Aboriginals in endeavouring to restrain a sale, et cetera.

Now, there was no evidence to suggest that he had been supporting their cause.  He was a solicitor on the record, but there is no evidence to suggest that he was supporting the cause, which seems to be a crucial aspect of the finding upon which the court relied.  They also referred in particular in the judgment to a general perception in the community that solicitors involved with the Aboriginal Legal Service are supportive of the struggle and that ‑ ‑ ‑

DAWSON J:   That would be the perception with a lot of public interest legal aid services.

MR McINTYRE:   That is right and that is why it is not an appropriate basis upon which to reach a conclusion.  We say that the court seems to have been heavily influenced by its views in relation to that, that if you come to that view then you reach the conclusion that there is a reasonable apprehension of bias because the person has acted in a particular field is assumed to be supported.  We say that that really is contrary to the way in which the New South Wales Court of Appeal has dealt with the matter in the Caltex Case where they accepted that the practitioner who then became the judge had acted for Caltex over a large number of years, but they said you do not assume that the practitioner supports the cause for which he acts.  You do not make that assumption.

DEANE J:   But if he had acted as solicitor for Caltex as regards the use to be made of a particular block of land, do you really think the decision would have been the same if he then proposed to sit as a member of the Land and Environment Court, since it came from New South Wales, dealing with the question of what use should be made of that particular block of land?  I really do not think that the question would have ever arisen for the appellant court.

MR McINTYRE:   If you accept that there is a sufficient fact to make the nexus, then we come back to the question of what the court ought to have done with it and you go to what his Honour Mr Justice Owen said, that where bias is reasonably apprehended such as to trigger the requirement for disclosure then the disclosure should be made and the parties should be requested as to which particular course of action should be followed.  So, ultimately, if you are against us on the question of whether or not there may be a reasonable apprehension of bias, we would come back to say what that then does is that it triggers the question of whether or not there should be a disqualification.  It requires the court to remit the matter back either to the judge himself to make the disclosure and then to disqualify himself if that seems to be the appropriate course or, if that is not appropriate, at least we would suggest he remit it back to the administrative decision‑making body.

It is not sufficient to say it would have been another District Court judge, which is what the court said; it would have been an appointed administrator there to make the value judgment which is associated with determining the public interest and determining the issue of weighing the evidence as to whether the Aboriginal interest, which was identified and accepted by the court, either outweighed or did not outweigh the other aspects of the public interest.

We say, ultimately, the court is wrong in determining that the judge was biased or that there was any reasonable apprehension of bias, because they have just misunderstood the way in which he constructed his judgment.  They have concluded that he has not provided any reasons for his decision.  That is just not the case.  He has provided reasons; not obviously in a way in which they understood, despite it having been explained to them.  Perhaps it was difficult, and it is right that there was concession during the course of argument that they were not immediate apparent, but if you understand the structure of his judgment, he referred to all of the issues; analysed the evidence and proceeded to a conclusion.  In fact, if it is said about him that he gave no reasons, then if one reads how Justice Rowland made his determination, then you could make the same accusation of him in the sense that he listed the issues and came to a conclusion.  There was nothing in between.  That is the accusation which is made against the liquor licensing judge.  It really illustrates the nature of the problem; that when you are ultimately making a value judgment after looking at a collection of factors which you weigh, then it is a pure value judgment and it is really not possible to tell anybody why it is that you put a certain quantity of value on one aspect as against a certain quantity of value on the other.  That is exactly what both Judge Greaves and Justice Rowland did in their determinations.  We say that that is not a proper accusation upon which you would reach a conclusion that Judge Greaves had, on any rational basis, acted in a way which would result in any reasonable apprehension of bias.

The third point which we suggest is of some general significance is the question of the interpretation of amenity.  We say that that is a concept which is part of the legislation in the Liquor Licensing Act of Western Australia.  It is also in the Liquor Licensing Act of South Australia, and it is used in a number of town planning and other pieces of legislation.  The court has made a specific finding as to what the meaning of that term is which we say is arguably not correct and inconsistent with the view which has been taken by the Full Court of the Supreme Court of New South Wales.  And also in Victoria, the Town Planning Appeals Tribunal have said, “When you are looking at amenity, you look at how it affects people’s senses and feelings and thoughts”, and so it is not merely a physical issue, it is a question of - there is a physical object there; there is a piece of land; there is the locality; but when you look, for instance, at the example of the funeral parlour which was found by a New Zealand case to

offend the sensibilities, then you are not looking merely at questions which are purely physical.  So, in that respect, the court has misinterpreted that provision which has led to its conclusion about the public interest issue.

DEANE J:   Thank you, Mr McIntyre.  The Court need not trouble you, Mr Zelestis.

We do not think that an appeal would enjoy any real prospect of success in so far as the decision of the Full Court on the issue of ostensible bias is concerned, otherwise we do not consider that an appeal would give rise to any question of general principle appropriate to attract a grant of special leave to appeal to this Court.  Accordingly, the application for special leave to appeal is refused.

MR ZELESTIS:   We seek costs, your Honours.

DEANE J:   Mr McIntyre?

MR McINTYRE:   Nothing to say.

DEANE J:   The application is refused with costs.

AT 4.05 PM THE MATTER WAS CONCLUDED