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Isbester v Knox City Council

Isbester v Knox City Council

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HIGH COURT OF AUSTRALIA
KIEFEL, BELL, GAGELER, KEANE AND NETTLE JJ
TANIA ISBESTER APPELLANT
AND
KNOX CITY COUNCIL RESPONDENT
Isbester v Knox City Council
[2015] HCA 20
10 June 2015
M19/2015
ORDER
1. Appeal allowed with costs.
2. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 10 September 2014 and, in its place, order that:
(a)the appeal be allowed with costs; and

(b)the order of the Supreme Court of Victoria made on 17 June 2014 be set aside and, in its place, order that:

(i)the decision of the defendant notified to the plaintiff by letter dated 15 October 2013 be quashed; and

(ii)the defendant pay the plaintiff's costs of the proceeding.

On appeal from the Supreme Court of Victoria
Representation
B R St. A Kendall QC with A S Felkel for the appellant (instructed by Phoenix Legal Solutions)
S P Donaghue QC with R C Knowles for the respondent (instructed by Maddocks)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Administrative law – Natural justice – Bias – Reasonable apprehension of bias – Incompatibility of roles – Where respondent made order under s 84P(e) of Domestic Animals Act 1994 (Vic) for destruction of appellant's dog – Where there was panel hearing and deliberation prior to decision being made – Where member of panel had been involved in prosecuting related criminal charges – Whether fair-minded observer might reasonably apprehend that panel member might not bring impartial mind to decision – Whether interest of panel member might affect decision-making of others on panel.
Words and phrases – "conflict of interest", "incompatibility of roles".
Domestic Animals Act 1994 (Vic), s 84P(e).

KIEFEL, BELL, KEANE AND NETTLE JJ. Following a hearing before the Knox Domestic Animals Act Committee of the Knox City Council, a decision was made that a dog owned by the appellant, which had earlier been seized by the Council, be destroyed. Section 84P(e) of the Domestic Animals Act 1994 (Vic) ("the Act") provides the Council with the power to destroy a dog where its owner has been found guilty of an offence under s 29 of the Act. The appellant had been convicted of an offence under s 29(4), on her plea of guilty to the charge that on 4 August 2012 her Staffordshire terrier called "Izzy" had attacked a person and caused "serious injury".
The issue on this appeal is whether that decision should be quashed because of the substantial involvement of a member of that Committee (referred to in the proceedings as "the Panel") both in the prosecution of charges concerning the dog and in the decision of the Panel as to the fate of the dog.
Background facts
Ms Kirsten Hughes was the Council's Co-ordinator of Local Laws. Part of her duties involved the regulation of domestic animals under the Act. In June 2013, the appellant was charged with a series…

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: [2015] HCA 20
Decision Date: 10 June 2015

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning a decision by the Knox City Council to order the destruction of the appellant's dog. The appellant, Ms. Isbester, argued that the decision was vitiated by a reasonable apprehension of bias on the part of a member of the panel that made the decision. This panel member, Ms. Hughes, had been significantly involved in the prosecution of charges against Ms. Isbester relating to attacks by her dogs, including the dog that was the subject of the destruction order.

The central legal issue before the High Court was whether a fair-minded lay observer, aware of the full facts, might reasonably apprehend that Ms. Hughes, having been involved in prosecuting the charges, might not have brought an impartial mind to the panel's decision regarding the dog's destruction. This involved considering the incompatibility of Ms. Hughes' dual roles as prosecutor and decision-maker within the Council's administrative process.

The High Court reasoned that the standard for apprehended bias in administrative decision-makers, while not identical to that for judicial officers, requires an absence of personal interest and a willingness to give genuine consideration to the matter. In this instance, Ms. Hughes' substantial involvement in investigating the incidents, laying charges, instructing solicitors, and negotiating pleas meant she had taken a prosecutorial stance. Her subsequent participation in the panel hearing and deliberation, where she played a major role in the decision-making process, created a reasonable apprehension that she might not have been able to approach the question of the dog's destruction with the necessary impartiality. The Court found that the institutional setting did not displace the need for such impartiality, particularly given the gravity of the decision to order destruction.

The High Court allowed the appeal, set aside the orders of the Court of Appeal of the Supreme Court of Victoria, and quashed the decision of the Knox City Council to order the destruction of the appellant's dog. The Council was also ordered to pay the appellant's costs.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 10 September 2014 and, in its place, order that:

(a) the appeal be allowed with costs; and

(b) the order of the Supreme Court of Victoria made on 17 June 2014 be set aside and, in its place, order that:

(i) the decision of the defendant notified to the plaintiff by letter dated 15 October 2013 be quashed; and

(ii) the defendant pay the plaintiff's costs of the proceeding.

Background

Background to the litigation

The issue on this appeal is whether that decision should be quashed because of the substantial involvement of a member of that Committee (referred to in the proceedings as "the Panel") both in the prosecution of charges concerning the dog and in the decision of the Panel as to the fate of the dog.Background facts Ms Kirsten Hughes was the Council's Co-ordinator of Local Laws. Part of her duties involved the regulation of domestic animals under the Act. In June 2013, the appellant was charged with a series of offences arising out of recent attacks by her three dogs. At this time it came to Ms Hughes' attention that the investigation of the August 2012 incident had not been completed. In the August 2012 incident, two of the appellant's dogs were involved in an attack upon another dog. A person who tried to pull one of the attacking dogs off the other dog sustained a wound to her finger. Ms Hughes directed Council employees to further investigate the identity of the dog involved in inflicting the injury on the person in that attack and she spoke with the complainant herself. She determined that six charges should be laid with respect to that attack, arranged for charges and summonses to be drafted and signed some of the charges, including that brought under s 29(4), as informant. Ms Hughes gave instructions to the Council's solicitors to prosecute the charges and to negotiate pleas which might be accepted from the appellant. Those pleas were entered in the Ringwood Magistrates' Court on 12 September 2013. An order for destruction of the dog under s 29(12) of the Act could have been, but was not, sought from the Magistrates' Court. It was the practice of the Council to itself convene a panel of its officers where it was necessary to consider cases of this kind. Ms Hughes decided that a hearing by the Panel should be held and made arrangements for that to occur. The day following the hearing in the Magistrates' Court, a letter drafted by Ms Hughes was sent to the appellant. The letter advised the appellant that it was open to the Council to consider the destruction of her dog. The letter also advised that if an order for destruction was not made, the Council could declare her dog to be dangerous under s 34(1)(a) of the Act. Such a declaration would have the effect that the appellant's dog would be subject, in particular, to requirements as to the restraint of the dog within and without her property (ss 38 and 41). The appellant was further informed that a hearing by the Panel would be held on 30 September 2013 and that the Panel would consist of three Council officers "who will consider all the information prior to making any decision." The chairperson was to be the person delegated to make the decision; the second Panel member was to be Ms Hughes and the third was to be an officer of the Council "who has not had any involvement in the matters, to provide assistance in the decision making process." The letter went on to say that "[t]he officer involved in the investigation may be present but they will not be involved in the decision making." If that advice was intended to suggest that Ms Hughes would not participate in the decision-making process, it was incorrect. It may be that it was intended to refer to Mr Martonyi, who was the investigator subject to Ms Hughes' direction.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL, BELL, KEANE AND NETTLE JJ GAGELER J

It is not disputed that Ms Hughes participated fully in the decision-making process of the Panel following the hearing. She agreed in cross-examination that she played a major role in that process. After a detailed discussion between the Panel members, Ms Hughes said, Mr Kourambas provided the instruction that the dog should be destroyed and she proceeded to draft reasons for his approval and signature. The appellant was notified of the decision by a letter dated 15 October 2013.The decisions of the Courts below The appellant, unsuccessfully, sought judicial review of the Council's decision and orders in the nature of certiorari and prohibition under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). A number of grounds were relied upon for the orders sought. Only the ground that relied upon an apprehension of possible bias on the part of Ms Hughes remains relevant to this appeal and then only in one respect. The primary judge (Emerton J) identified[1] the relevant principle for apprehended bias to be that stated in Ebner v Official Trustee in Bankruptcy[2], where it was said that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". Her Honour then referred to what had been said in Minister for Immigration and Multicultural Affairs v Jia Legeng[3], namely that the application of that principle will not be the same for a decision-maker who is not a judicial officer. What is required in relation to apprehended bias by prejudgment, her Honour said, depends on the circumstances[4].[1]Isbester v Knox City Council [2014] VSC 286 at [84].[2](2000) 205 CLR 337 at 344 [6]; [2000] HCA 63.[3](2001) 205 CLR 507 at 563 [181]; [2001] HCA 17.[4]Isbester v Knox City Council [2014] VSC 286 at [85]. Her Honour the primary judge considered[5] that the requirement for impartiality exists to the extent necessary to give persons affected by a decision under s 84P(e) a genuine hearing. Her Honour referred in this respect to statements in McGovern v Ku-ring-gai Council[6] concerning the expectations of decision-making by a local council:"The real question is what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect of a councillor dealing with a development application. The institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers."The Court of Appeal of the Supreme Court of Victoria (Hansen and Osborn JJA and Garde AJA) accepted that the essential requirements of natural justice were those as identified by the primary judge[7]. It will be necessary to refer to the circumstances of McGovern's case later in these reasons.[5]Isbester v Knox City Council [2014] VSC 286 at [110].[6](2008) 72 NSWLR 504 at 519 [80] per Basten JA.[7]Isbester v Knox City Council [2014] VSCA 214 at [48], [65], [69].

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL, BELL, KEANE AND NETTLE JJ, GAGELER J

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