Isbester v Knox City Council

[2015] HCATrans 79

[2015] HCATrans 079

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M19 of 2015

B e t w e e n -

TANIA ISBESTER

Appellant

and

KNOX CITY COUNCIL

Respondent

KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 APRIL 2015, AT 10.14 AM

Copyright in the High Court of Australia

MR B.R.St.A. KENDALL, QC:   If the Court pleases, I appear with my learned friend, MR A.S. FELKEL, for the appellant.  (instructed by Phoenix Legal Solutions)

MR S.P. DONAGHUE, QC:   If it please the Court, I appear with my learned friend, MR R.C. KNOWLES, for the respondent.  (instructed by Maddocks)

KIEFEL J:   Yes, Mr Kendall.

MR KENDALL:   If the Court pleases, this is an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria delivered on 10 September 2014, whereby that court dismissed an appeal from the trial judge, Justice Emerton, in respect of a decision delivered on 17 June 2014.  We will follow fairly closely the outline which has been handed to the Court.

In our submission, there are three things that are not controversial here.  The first is that Ms Hughes, who was the officer of the Council, the by‑laws officer, was an accuser before the Magistrates Court, and the Court of Appeal so held.  Second, Ms Hughes participated in the decision‑making process of the panel hearing which was convened by the respondent Council.  Thirdly, the rules of procedural fairness applied to the panel hearing convened by the respondent, and in the circumstances this required the decision‑maker to be free of a conflict of interest.

In that regard, may we refer your Honours to what was said by the court in paragraph 53, appeal book page 472, where having referred to a letter to which I will take the Court presently – that was the letter which, in effect, gave notice of the panel hearing – the Court said in paragraph 53 that the letter could not create a legitimate expectation, but then said:

The appellant’s legitimate expectation was simply that they would be persons who had no conflict of interest in the matter and had made no prejudgment of the matter.

KIEFEL J:   So do you say that the Court of Appeal has determined the question of the content of procedural fairness in that way?

MR KENDALL:   Well, certainly the court has accepted, your Honour, that the procedural fairness applies to the hearing and determination of this panel.  The question of the content ‑ ‑ ‑

KIEFEL J:   I do not think that has ever been an issue, has it?  It was not an issue before the Court of Appeal.

MR KENDALL:   We say it is not.  In fact, the three conclusions which I have just outlined – they are not challenged by us but, more importantly, they are not challenged by the respondent.  So the issue ultimately becomes a debate about the content of the requirement that there be no conflict of interest in this case.

KEANE J:   Mr Kendall, can I ask, is it apparent how it is that Ms Hughes came to be the informant in the proceedings in the Magistrates Court?

MR KENDALL:   Yes.  The evidence given by Ms Hughes was that the investigating officer, Mr Martonyi - and there are two sets of charges.  I am talking about now the six that Ms Hughes was the informant in – that he was not available on the day to sign the required information and hence Ms Hughes signed it.  There was an argument at trial as to whether Ms Hughes could be properly described as simply a formal informant or a nominal informant and not substantive in the sense of whether or not she knew of the detail of what stood behind the matter.

KIEFEL J:   Her role might be more important than whether or not her signature was appended to a document.  She was the Council’s local laws co‑ordinator.  Is that right?

MR KENDALL:   She was.

KIEFEL J:   That involves supervision of Mr Martonyi in his role as an investigator?

MR KENDALL: Yes, she supervised Mr Martonyi. In fact, it was on Ms Hughes’ evidence, in her affidavit, as a result of her discovering that no action had been taken for some nine or 10 months in respect of the events of 4 August 2012, that is the event which triggers the plea of guilty which led to the enlivenment of the jurisdiction in this case – that is, the jurisdiction granted to the Council under section 84P(e).

KIEFEL J:   Just speaking for myself, I would appreciate more in relation to the background of Ms Hughes’ role leading both to the Magistrates Court hearing and then the panel hearing.  You are saying Ms Hughes determines that further evidence should be obtained or she initiates the process, in fact.

MR KENDALL:   Yes, we do say that, and we say it came about in this way:  that Ms Hughes discovered that in respect of the events of 4 August 2012 that the matter had lain dormant in the Council offices.  She received a telephone call following another incident and she then looked at the files and questioned Mr Martonyi about them and sought to reactivate the inquiry into those events in order to determine whether charges should be laid.

So that we say that Ms Hughes ‑ was not merely a nominal informant, but that she actively managed the further investigation of the relevant charges, she supervised Mr Martonyi, she directed Mr Martonyi to go out and interview the relevant complainants.  Their name was Edward. There was an Emily Edward, the daughter, and a Jennifer Edward, the mother.  Those two persons had been at the incident which occurred on 4 August 2012.

KIEFEL J:   Was it Ms Hughes’ decision to lay the charges?

MR KENDALL:   Well, we say it was, on the evidence.

KIEFEL J:   Well, is there evidence of that?  Can you direct us to the evidence that it was in fact her decision to lay the charges?

MR KENDALL:   Well, yes, it is in her affidavit, beginning at appeal book page 168, where she sets out the details of the investigation into a series of events, and then she says in paragraph 27, appeal book page 170:

I arranged for a charge and summons for this matter to be drafted and I made myself the nominal informant in relation to the charges.

She then sets out why, and in the previous paragraph, paragraph 26, she deposes to the matters which I referred to a moment ago, namely, that the matter had not been activated and it was getting close to the 12 month period of limitation.

Then she says in paragraph 28 that she subsequently had a conversation with Mr Martonyi and then a further statement was taken from Jennifer Edward and after the plaintiff’s solicitor, Mr Brett Melke, had argued that it could not be determined which dog was involved in the attack of 4 August.  So a further statement was obtained and Ms Hughes says she did not carry out the investigation in relation to the matter, but in cross‑examination she acknowledged in fact that she had telephoned the Edwards and spoken to at least to Emily Edward about the details of the relevant event.

In response to your Honour Justice Kiefel’s observation about providing background as to how all of this arises, can we refer your Honours very quickly to four specific exhibits to the affidavit of Ms Hughes?  The first is the exhibit “KH10” which is an email dated 29 August 2013 which is at appeal book page 319. 

That email came about in response to a specific question which had been sent by Mr Melke - who was the solicitor for the appellant - had been sent to the solicitors for the Council, the operative person at that solicitor’s firm being a person by the name of Kylie Walsh.  Your Honours will see at appeal book page 319 an email from Ms Hughes to Kylie Walsh and the email refers to a discussion which she had had with a Steve Dickson, who was one of the Council officers, and says:

Proceed on the basis you have outlined below.

We won’t be seeking orders from the court in relation to the dogs.

If I can just pause there and say that the precise question asked by Mr Melke is reproduced in Justice Emerton’s reasons for judgment.

KIEFEL J:   Do we need to go into this question, because we are not talking about whether or not there was a misleading in relation to the guilty plea.

MR KENDALL:   No, we are not pursuing any bad faith, your Honour.

KIEFEL J:   The matter, I think, that you were interested in arises from the email itself, does it not, where it says:

Council would be having a panel hearing in relation to the fate of Izzy –

MR KENDALL:   Yes.  Now, it is no longer an issue, your Honour, as to whether there was any bad faith in the matter.  That was taken at trial; it is not pursued here.  However, the email is significant because there was another dog – in fact, there were three dogs involved; one, a dog called “Jock”, a male dog, was voluntarily destroyed at the request of Ms Isbester after that dog had been involved in another subsequent incident in 2013.  There were two other dogs; “Izzy”, the dog which is the subject of the case to which this appeal concerns, and a dog called “Bub”, and your Honours will see in the email at appeal book 319, there is a reference –

With the collection of charges, there will not be any charges for which a destruction order could be placed on Bub (correct me if I am wrong).  She could be released –

I will not read all of it –

However the housing commission have indicated the dog cannot be housed at 10 Suzanne Court, so she will need to be registered somewhere else.  Council would be having a panel hearing in relation to the fate of Izzy and Isbester would be notified of this shortly after the Court case.

The reference to the housing commission ‑ ‑ ‑

KIEFEL J:   Does the evidence show how it is determined, or whose decision it is, that there would be a panel hearing?

MR KENDALL:   The evidence of Ms Hughes is that she determined that there would be a panel hearing, and that appears at transcript page 280, appeal book page 97, and it is lines 28 to 30.  Whilst we are there, may I refer specifically to what appears on that page in general terms from line 17, the series of questions going over and concluding on transcript page 281, appeal book page 98 at line 8, the question being:

There’s no doubt, is there, that throughout all of this, you played a major role in the decision process?---Yes.

Now, we refer just briefly to the next relevant exhibit which is the two emails which passed between – and it is KH14, the relevant emails are at appeal book page 366 and 367.  This was a conversation by email instituted by Ms Hughes, and that appears at appeal book page 367 where she asked Susan Fotopoulos of the Department of Human Services to advise regarding the Department’s:

position in relation to the two dogs owned by Tania Isbester and allegedly involved in two attacks in June 2013?  For example would DHS oppose the dogs returning to 10 Suzanne Court?

The answer appears at appeal book page 366.  The essence of it is:

DHS will not be supporting the two dogs returning to the property.

That, we say, is significant because at an early stage – and these emails take place between 26 July 2013 and 30 July – that indicates that Ms Hughes was seeking to prevent, we would say, Ms Isbester from having the dogs return to her house at 10 Suzanne Court.  Now, we only point to it as an incident of the approach of Ms Hughes to the question and, in particular, her involvement in investigating the facts and finding the background.  I will come back to the email which is KH10 wherein it is said that the Council will be having a panel hearing. 

It had already been decided as at 29 August that the Council would not be applying to the Magistrates Court for an order seeking the destruction of the dog. Now, the Act so provides – section 29(12) provides that an application can be made to the court for an order authorising the Council to destroy a dog. The alternative is that by virtue of section 84P, in this instance subparagraph (e), the Council can itself convene a panel hearing, and that is what happened in this case.

The evidence to which we have referred in our written submissions was that the Council had a policy, described by the Court of Appeal as a “practice”, whereby it did not apply to a Magistrates Court for destruction orders in respect of dogs, but rather elected to convene an internal panel hearing.  It is part of the case that is put on this appeal that when one looks at the fact that the Council had that choice and has regard to what is accepted as having been the Council’s policy or practice, one can draw assistance in the approach to the construction of the statute, having regard to the fact that an application can be made to the Magistrates Court. 

If an application had been made to the Magistrates Court, of course, Ms Hughes could not have participated in the decision‑making process in any way whatsoever, whereas if, as happened, the Council elects to convene a panel, the respondent contended below that it was acceptable for Ms Hughes to be a member of that panel, notwithstanding her extensive involvement in preparing the case, in negotiating a plea bargain. It was a specific condition of the negotiation that Ms Isbester plead guilty to the charge numbered 4, that being the charge that, once there was a finding of guilty, enlivened the jurisdiction under section 84P and thus enabled the Council to convene a panel hearing.

KIEFEL J:   Did you say there is a provision with respect to the constitution of a panel for the purposes of the decision in question?

MR KENDALL:   I am sorry, your Honour?

KIEFEL J:   Did you say that there is actually a provision in relation to the Council’s powers to convene a panel?

MR KENDALL:   No, that is not the case.  The case is that the ‑ ‑ ‑

KIEFEL J:   It is just an ad hoc practice?

MR KENDALL: Yes, it is an ad hoc practice. There is no specific provision in the Act which says that the Council must convene a panel.

KIEFEL J:   Do we know whether or not the Council usually convened panels for these questions?

MR KENDALL:   That was the evidence and we have referred to it in our written submission, but Ms Hughes gave evidence to the effect that the usual practice was to convene a panel.

KIEFEL J:   To convene a panel?

MR KENDALL: Yes. If I can just round off what I was saying about the history of the matter, there are two further exhibits to which we should refer the Court specifically. The first is exhibit “KH12”, which is at appeal book 353. That is a letter delivered to Ms Isbester by hand at the Council offices on the day after the hearing at the Magistrates Court. It is dated 13 September 2013. It refers to the plea of guilty. It then refers to section 84P(e) and says that Council may consider the destruction of a dog if the dog’s owner has been found guilty. It then refers to the finding of guilty and then says:

If a destruction order is not made, Council will consider whether it would be appropriate, in the circumstances, to declare your dog dangerous.

Now, the section does not actually refer to a destruction order, but that is the terminology which Ms Hughes used.  The section begins by saying, “The Council may destroy a dog”, and then there are a series of circumstances enumerated in the section.  There is then a reference to declaring the dog dangerous and then the panel hearing date and time is advised.  It is then said:

The panel consists of three Council officers who will consider all the information prior to making any decision.

I will not read the intervening bit, which describes the panel members.  It is then said:

The officer involved in the investigation may be present but they will not be involved in the decision making.

BELL J:   Can I just clarify whether that is a reference to Ms Hughes or, as I understand it, others were present in addition to the three panel members, including Mr Martonyi.  Do we understand that to be a reference to Mr Martonyi?

MR KENDALL:   Yes, we understand it likewise to be a reference to him.  What we say the reference indicates is a consciousness on the part of the writer that there was a need to make sure that the officer involved in the investigation was not involved in the decision‑making and we put that argument at trial, although there is a reference to it by the Court of Appeal which in fact is erroneous in this respect, we do not say in any way deliberately, but I should perhaps just explain how that comes about.  The Court of Appeal in its reasons suggested that the argument about the terms of the letter were not put below.

GAGELER J:   What is the argument that amounts to an admission?

MR KENDALL:   Yes, the argument was simply this, that that sentence is indicative of a consciousness on the part of the writer of the letter, and that was Ms Hughes.  She did not sign it but the evidence is that she drafted it, and incidentally she is a trained lawyer, though not practising.  That it is indicative of a consciousness that one should not have sitting on the panel a person who had been involved in the investigation.

KIEFEL J:   That does not matter to a case of apprehension of bias.  We are not talking about actual bias, are we?

MR KENDALL:   Yes, we do not put a case founded on actual bias.  As far as apprehended bias is concerned, we simply point to it as indicative of an awareness of the part of the writer of the letter.

KIEFEL J:   Her state of mind surely cannot be relevant, can it?  It is what the fair minded observer would say, knowing all of these facts and looking at the letter.

MR KENDALL:   Yes, yes.  Well, if a fair‑minded observer knew of that fact, the fair‑minded observer might be more inclined to say, well, there is a consciousness that persons involved in the investigation should not sit on the panel.  Now, it is not a major point but we refer to it in general terms.

So that what we say by reference to the letter convening the panel, that is exhibit KH12, is that there is another part in it and it indicates that the panel itself would have a role in making the decision or at least in advising about the decision.  One of the issues between the parties, and a technical point taken against us, is that when the decision was ultimately notified, the signatory to that notice of decision was Mr Kourambas, another member of the panel, and the point is therefore taken and was taken below, that Ms Hughes did not make the decision. 

Now, technically, of course, that is right but what one is concerned with here is involvement in the decision‑making process and we say it is undoubted on the evidence, to which we refer in our written submissions, that Ms Hughes was involved in the decision‑making process.  Her evidence was that after the panel hearing, the panel retired, all three members, and discussed what to do and she was then asked by Mr Kourambas to draft the reasons for the decision.

We say, therefore, that Ms Hughes had a fundamental part in the process of the decision‑making and if I can just – I will not go back and read it, but if I can refer your Honours again to the series of questions that were asked at transcript page 280, 281, it shows the entire role of Ms Hughes in the decision‑making process.

KIEFEL J:   Sorry, what page?

MR KENDALL:   Appeal book 97 and 98, beginning really at line 21, appeal book 97:

You were the person who directed that a further statement be obtained from Mrs Edward.  That’s correct, isn’t it?---Yes.

You were the person who determined what charges should be laid ‑

She agreed with that ‑

You were the person who decided that there should be a panel hearing, is that correct?---Yes.

Yes.  You were the person who negotiated the plea deal that was made –

between Maddocks and Mr Melke.  She says that she negotiated in consultation with her manager; that was Mr Dickson:

Yes.  And you were the person who drafted the letter giving notice of the panel hearing?---Yes.

Yes.  You were the person who, together with Mr Dickson, drafted the reasons for decision?---Yes.

There’s no doubt, is there, that throughout all of this, you played a major role in the decision process?---Yes.

We say that that points directly to extensive involvement by Ms Hughes in the entire investigation process and in the process leading to the convening of the panel and in the conduct of the panel hearing itself and in the process of the decision‑making.

BELL J:   The function of the panel was to provide a recommendation to the person who was the authorised delegate for the purpose of the decision, is that so?

MR KENDALL: Yes, and that becomes plain from the fourth specific exhibit to which we wish to refer, and that is KH17, which is a letter dated 15 October 2013 advising of the decision. That is at appeal book page 386. It is a long letter and, of course, I will not read it, but if I could just refer to two or three specific parts. First, at the commencement of the letter, appeal book page 386, it refers to the “Knox Domestic Animals Act Committee”, called the “the Panel”:

which is a committee established to provide a recommendation to those members of Council staff to whom the powers under sections 84P(e) and 34(1)(a) of the Domestic Animals Act 1994 (“the Act”) have been delegated.

Section 34(1)(a) is the provision which enables the Council to declare a dog a dangerous dog. Then there is a list of the matters that were considered by the panel and your Honours will see that it includes as item 9, appeal book page 387:

the brief of evidence in relation to the 4 August 2012 attack –

May I pause there to say this?  There were three separate attacks, two of which concerned the dog Izzy, one of which was the event of 4 August 2012, and it is in respect of the events of that day that the plea of guilty was entered to the charge numbered 4.  Other dogs owned by Ms Isbester were involved.  At appeal book page 388, at the end of the letter ‑ it is line 20 on the page – Mr Kourambas says:

I have considered all of the information presented to the Panel, the Panel’s recommendation, the outcome of the Magistrates’ Court proceeding and the submission of the victims.

So, to answer your Honour Justice Bell’s question, I hope that that illuminates the point.  The role of Ms Hughes in the circumstances we say was significant, particularly having regard to the observation made by the trial judge that she, Ms Hughes, was the person on the panel with the most direct knowledge about animal behaviour issues.  Her Honour observed that Ms Hughes would have had considerable weight by virtue of that, and that appears at paragraph 103 of the trial judge’s reasons, appeal book page 426, opposite line 30 on the page:

It is common ground that Ms Hughes was a ‘delegated officer’ . . . sat on the panel, attended the whole panel hearing, participated in discussions afterwards and drafted the Reasons –

and so on.  There is then a reference to what the court was told was the reason why Ms Hughes was on the panel, and it is then said –

Ms Hughes’ views would therefore carry considerable weight.

We have in essence, your Honours, this - a person who was the informant before the Magistrates Court who managed and supervised the investigation process, who directed the obtaining of further witness statements from persons involved, that is the Edwards, who negotiated the plea of guilty, who wrote the letter, who decided that there should be a panel hearing, who in effect drafted the letter which was sent – signed by another officer, but Ms Hughes drafted the letter advising of the panel hearing – that that same person then participated as a member of the panel in circumstances where, following the panel hearing, there was a significant discussion involving all three members of the panel, leading to a recommendation made by that panel to the officer who signed the letter advising of the decision.

We respectfully submit that Ms Hughes played a central role through this entire process, and it is our contention that she cannot do so, and the court ought to have granted relief in the nature of certiorari, because Ms Hughes played a role which amounted to her being both an accuser – and it was accepted by the Court of Appeal she was an accuser before the Magistrates Court – and she was also a person who, in effect, acted as a judge in that she was a member of the panel which made the recommendation to the officer who signed the decision.

I have diverted from the outline and I will now return to it and I am at paragraph 3 on the first page.  Can we indicate, as we do there in paragraph 3, the parts of the judgment of the Court of Appeal which we contest and challenge by saying first that at appeal book page 477 there appear six reasons as to why the court does not accept that the reasonable observer would conclude that the prior involvement of Ms Hughes in the matter – and I am reading the top of the page at appeal book 477 – and six reasons are set out in paragraphs 70 to 75 all on that page of the appeal book. 

Just before I go to the detail of that, I again emphasise first what was said in paragraph 53 wherein it was acknowledged by the Court of Appeal that the appellant’s legitimate expectation would be that the persons on the panel:

would be persons who have no conflict of interest in the matter –

Then may we refer the Court to paragraph 68, appeal book page 476:

We also accept that Ms Hughes had a material part in the decision‑making process and would not base our decision on this aspect of the matter upon the fact that she was not the decision‑maker. 

In that respect the Court of Appeal differed from the trial judge.  The trial judge took the view simply that Ms Hughes was not the decision‑maker and more or less left it at that.  Then the Court of Appeal said, paragraph 69:

Nevertheless, in our view the present case does not involve a conflict of interest in the sense identified.

I have read the next sentence which is at the top of page 477.

KIEFEL J:   Their Honours in these passages are concerned to differentiate the role of Ms Hughes as an accuser in the court below, but the role of her and the panel in relation to the other powers were quite different and that is the essential distinguishing feature.

MR KENDALL:   The panel had one role pursuant to section 84P(e), namely to decide whether or not the dog should be destroyed. There did not have to be a panel, as I said before, but once a panel is formed, we say, well the rules of procedural fairness should apply. In any event, they should apply to any decision made by a council to take away a legal right.

KIEFEL J:   Is the Court of Appeal saying there that Ms Hughes’ role with the panel may have involved decision‑making but it did not involve prosecution?  She was not contending for a particular outcome. 

MR KENDALL:   We cannot classify her directly as a prosecutor in an ordinary adversarial sense.  We say that when you look at her conduct in placing material before the panel that she assumed a role similar to that of someone who was advancing a case for one side.  We point to two things in that regard.  First, she read out her notes of the magistrate’s reasons for decision.  It was, of course, not to be known to the Council or to Ms Hughes prior to the Magistrates Court hearing that the magistrate would have taken the view that he did.  The magistrate said, with respect, some fairly extreme things that are recorded in the notes.  He expressed the view that he wished it were possible to send Ms Isbester to gaol.  He made a number of ‑ ‑ ‑

KIEFEL J:   I do not think we need to be concerned with that, do we?

MR KENDALL:   Yes, but the point about it is this:  that was put before the panel and read out by Ms Hughes.  As well, Ms Hughes had previously, as your Honours are aware, contacted the Department of Human Services with a view to establishing that the housing commission would not permit Ms Isbester to have the dogs at her residence.

KIEFEL J:   Can you put that any higher than that she was making some inquiries as to where the dogs would be housed?

MR KENDALL:   Yes, we can.  She was making those inquiries with a view to shutting off the option of a dangerous dog declaration.  A dangerous dog declaration could only have been made in a practical sense, in the circumstances, if it had been possible for Ms Isbester to take the dog home.  We say really what was driving Ms Hughes’ concern here was a desire to obtain a destruction order.  That is reflected in the exhibit KH10 where she even asked could she obtain a destruction order in respect of the other dog called Bub.

KIEFEL J:   Are you arguing for a conclusion of apprehension of bias based not only on ostensible interest but upon conduct?

MR KENDALL:   I should make it plain that we do not pursue the alternative ground that was put before the Court of Appeal, which was prejudgment.  That is not pursued in this Court.  We do say that when one looks at the whole of the conduct of Ms Hughes that she did indeed have a conflict.  I do not know that I have quite answered your Honour’s question, but there is a conflict between her being an accuser and being a decision‑maker.

KEANE J:   That conflict, if you are right, is one which arises as a structural matter, as a matter of the way in which the decision‑making processes that were adopted by the Council are structured.  I must say, speaking just for myself, I do not find it very helpful that you keep sliding into personal attacks on Ms Hughes when your case, the case that you have been given leave to argue, is a case about perceptions having regard to the structure of the decision‑making process.  This continual sliding into these personal attacks on Ms Hughes just serve to confuse the issue, it seems to me, and rather perhaps might explain the results of the court’s decision‑making below where there is this consistent distraction from what your real point is.

MR KENDALL:   Well, I will desist.  The point is a simple one.  It is that Ms Hughes cannot be both accuser and judge.

BELL J:   The approach adopted by the Court of Appeal and the primary judge was to consider that the inquiry as to whether the dog could live safely in the community was entirely separate to the earlier prosecution of Ms Isbester in relation to the dog’s attack on a person.  On another view, there might be thought to be an analogy between the panel hearing following the prosecution and, as in Rendell, consideration of whether a person who has been responsible for the conduct of a criminal prosecution might have a perceived conflict of interest in sitting on the determination of the parole board ‑ ‑ ‑

MR KENDALL:   Yes.

BELL J:   ‑ ‑ ‑ which again is concerned with questions of whether that individual can live safely within the community.

MR KENDALL:   Well, we rely on Rendell, albeit the observations there made were obiter, because we say that that is similar to what happened here.  Now, here you have two levels of hearing:  you have a determination of the guilt of Ms Isbester as the owner of the dog, and on essentially the same facts but with some other facts related to other incidents, but certainly the same foundation facts are put before the panel.  Indeed, it is of course the plea of guilty and that particular charge which is the main concern of the panel, that is, the bite which was caused to Mrs Edward. 

Now, one has the two‑stage process and it is not unlike the situation which obtained in Rendell where there was a criminal prosecution and some eight years later there was the application for release on licence and it was observed by the Court of Appeal in New South Wales that it was probably inappropriate for the police officer who had been involved in the investigation of the criminal offence to sit on the Release on Licence Board.

Rendell has been followed subsequently in a case called Tuch to which we referred in our submissions.  We did not in our principal written submissions refer extensively to a case called Law, that is Law v Chartered Institute of Patent Agents.  A copy of that has since been provided to the Court.  We did refer to it in a footnote to our written submissions but we now wish to rely on it in respect of two matters. 

It concerned an inquiry into the conduct of an agent, a patent agent who was said to have disclosed matters concerning a secret naval invention.  There were two rules which operated in this case, and this appears from the headnote.  There was rule 31 which dealt with disgraceful professional conduct and rule 32 which dealt with conduct which was discreditable to a patent agent and the rules are summarised in the headnote. 

Now, what happened was there was a hearing before a Committee of the Board of Trade convened in respect of an allegation made pursuant to rule 31.  That failed and then the same members of the Chartered Institute brought a separate application – an in‑house application, as it were – relying on rule 32, based on the same allegations.  In his judgment, Justice Eve dealt with an argument that – well, there are two points we wish to make in this case.  First at page 289, his Lordship said – and it is halfway down the page and halfway down the main paragraph on that page:

One such circumstance which has always been held to bring about disqualification is the fact that the person whose impartiality is impugned has taken part in the proceedings, either by himself or his agent, as prosecutor or accuser.

There is then reference to what Lord Justice Bowen said in the Leeson Case and to the judgment of Lord Esher, Master of the Rolls, wherein his Lordship said:

“The crucial question is whether in substance and in fact one of the judges has in truth also been an accuser” –

Next, at page 290 we refer to a second matter, and this comes back to the question about Rendell which your Honour Justice Bell asked.  At the top of the page it is said:

It was argued on behalf of the defendants that the council – if accusers at all – were accusers before another tribunal and in an inquiry which involved a different issue, or at any rate different consequences to the accused, and that these factors so distinguish the case from any of the reported decisions relied on as to make them inapplicable here.  I cannot accept that argument as sound:  to do so would be to disregard the principle underlying the decided cases.

Now, that was a case where one had in fairly quick succession two separate hearings but of a different nature but based substantially on the same facts, and an argument was put that if those who brought the complaint had been accusers before another tribunal that, in effect, they would cease to be accusers.  The argument was rejected out of hand.

BELL J:   Another basis on which the Court of Appeal based its conclusion – this is at appeal book 477, paragraph 72 – is that:

the hearing was not required to be, and was not in fact, a quasi‑judicial hearing.

In some of these cases, including those to which reference is made in Law, the statutory scheme provided for the body to come to a conclusion after due inquiry, or words to that effect, I think, sometimes using words like “charge” and “guilty”, as I think might appear in rule 32 in Law.  What, if anything, is the significance, in terms of your argument, to the circumstance that here you have a statutory scheme - there is no provision for an inquiry before the determination of an order for destruction under the provision?  Is it your contention that once the Council embarks on a process involving a panel hearing it necessarily imports requirements ‑ ‑ ‑

MR KENDALL:   It is our contention that once it does so embark, then the rules of procedural fairness apply.

KIEFEL J:   Do you not have to consider the nature of the decision that the body is making?

MR KENDALL:   The nature of the decision is one to take away a person’s legal right, a right of property - the ownership of an animal. It has been said in this Court on numerous occasions that where a right of that kind is to be taken away, then the rules of procedural fairness apply to the decision‑making process. It would be remarkable if they did not, because on the structure of things contained in the Act here, if application had been made to the Magistrates Court for an order that the Council be able to destroy the dog, of course the rules of procedural fairness would apply. I have already referred to the Council’s policy, or practice of having a panel hearing, but they should not be able – I am sorry, your Honour.

GAGELER J:   Where do we find evidence of that policy or practice?  At one stage you referred to it as “ad hoc”, which I took to mean particularly convened for the purposes of this case.  If it is a more general policy, I would like to see it, I think.

MR KENDALL:   It is best answered by referring to Ms Hughes’ evidence in cross‑examination.

GAGELER J:   There is no Council document in evidence about it?

MR KENDALL:   That is right.  At the trial, a call was made for the production of any Council policy document and no relevant current policy document was produced.  There was a bit of confusion about this, and there was a further affidavit from Ms Hughes, but there was no document produced which specified the Council’s approach to the management of dogs that may have escaped, or caused a nuisance, or caused an injury, or anything like that.  There was not in evidence at trial any specific Council policy.  There were references to procedural documents and to a policy about how officers should go about the practice of seizing dogs, but there was no large scale policy statement which was placed in evidence before the trial judge.

BELL J: But the reasons refer to the “Knox Domestic Animals Act Committee”.

MR KENDALL:   Yes.

BELL J:   Then in parentheses “(“the Panel”)”, so there was no material from the Council respecting the establishment of that committee.

MR KENDALL:   My best recollection is there was not.

KIEFEL J:   Where is the evidence of Ms Hughes as to the panel practice of ‑ ‑ ‑

MR KENDALL:   Yes, I will just – I am directed to a reference in the judgment of the Court of Appeal, but this does not really answer the question about the specific evidence.  It is paragraph 17 at court book page 457.

KIEFEL J:   Well, perhaps you could proceed and your junior could ‑ ‑ ‑

MR KENDALL:   Yes, I apologise but ‑ ‑ ‑

KIEFEL J:   ‑ ‑ ‑ obtain the evidence reference.

MR KENDALL:   Yes.  Certainly – I cannot presently find it and I will have to come back to it.  Now, if I can return to the page of the judgment of the Court of Appeal where they set out the six reasons – and that is at appeal book page 477 – I think I have addressed your Honours about what appeared as the first reason given in paragraph 70 and we rely on Rendell and Law and we say, in effect, that once a person is an accuser, if the person is involved in a subsequent hearing – in this case the panel hearing –where the same facts are in issue, albeit a different question is being asked, the person remains an accuser.

It is sometimes said when dealing with the reasonable observer what would – or sometimes is asked what would an observer, reasonably informed, think of how it appears?  In our submission, when one looks at the appearance of the thing and the role of Ms Hughes throughout, it appears very much that the person who was the prosecutor in the Magistrates Court is the person who participated in the decision‑making of the panel and that the same person is driving the process throughout.  The second reason given by the Court of Appeal is at paragraph 71 ‑ ‑ ‑

KIEFEL J:   I think we have dealt with that, have we not – the different issues point?

MR KENDALL:   That is the different issues question, yes.

KIEFEL J:   And the third likewise.

MR KENDALL:   I am sorry, your Honour?

KIEFEL J:   I thought you had dealt with the third as well.

MR KENDALL:   Perhaps if I can just round it off.  In our submission, not much is to be gained by saying whether or not it is a quasi‑judicial hearing.  We say that the reality is that the rules of procedural fairness applied.  In our submission, the third reason given – that is the one at paragraph 72 – is really not relevant, it does not advance the process of determining why Ms Hughes did not have a relevant conflict of interest.

There are, of course, elaborate discussions in the authorities as to what is a quasi‑judicial hearing and what is not.  In our submission, if a body is required to observe the rules of procedural fairness then it is acting in a quasi‑judicial manner.  But, in our submission, the third point really is a non‑point in the sense that it does not advance the resolution of the question.  The fourth reason was given at paragraph 73:

Fourthly, Ms Hughes had no special personal interest in the matters in issue.  Her involvement with the prior history of the dog was no more than that of a council officer carrying out her responsibilities –

We disagree with the view there expressed, but what we say is that there is no requirement for a special personal interest, and presently we will address the Court about the decision of this Court in Stollery in that respect.  The trial judge held, and the Court of Appeal agreed with her, that in addition to showing that a person was an accuser, one had to show that that person had some special personal interest.  We say that, on an examination of the authorities, and one can go back to The King v Sussex Justices, that there is no requirement that the person to be fixed with the conflict of interest has a special personal interest in the outcome of the matter.  Paragraph 74, the fifth reason:

the reasonable observer would regard it as entirely appropriate that the panel might include a person having a practical understanding of what needs to be done to protect the community from dog attacks, having regard to the circumstances of the particular case.  The fact that Ms Hughes had professional experience in this regard could not be regarded as giving rise to a conflict of interest.

We never said that it did, and we do not here so contend.  Of course, a panel could seek information from and even seek evidence from people experienced in the handling of dogs and what needs to be done to protect the community from dog attacks.  It can inform itself, but it should not, in our submission, be informing itself by having a person who is also informing it sitting on a panel and making the decision in circumstances where that person has previously been an accuser.  The sixth reason is at paragraph 75:

the evidence as to the course of the panel hearing does not demonstrate that Ms Hughes took the position of an accuser at it.  She was not in substance a party to an adversary proceeding.

Your Honour Justice Kiefel and your Honour Justice Bell have asked about that previously.  In our submission, when one looks at her role before the panel, she was advocating a particular point of view and I have referred to the inquiries made of the Department of Human Services and also to the reading out of the magistrate’s notes.

The notes of the magistrate’s reasons could point no other than to a destruction order because the magistrate in fact ‑ and Ms Hughes deposes to this ‑ had asked the question, do you want me to make an order for the destruction of the dog now.  That was in the course of the plea hearing.

I am now able to refer your Honours to the relevant evidence about council policy.  It is at appeal book page 35 and 36, transcript page 218 and 219.  At appeal book page 35, line 28, Ms Hughes said:

I’ve worked with Ms Walsh –

she is the solicitor for the Council –

over a number of years when I was at Port Phillip and we followed exactly the same process there.  It was very unusual to seek an order for destruction from the court and in fact in the last seven and a bit years I’ve only done that once.  The normal process – and I’d worked with Kylie on numerous dog attack cases, was that council would hold a panel as soon as possible after the court case, given that the dogs are held during all of that time, it was to get it done as quickly as possible after the court case.

Now, there is other evidence about the policy of the Council in respect of convening panel hearings.  Mr Martonyi was asked about it in cross‑examination.  Unfortunately, when we applied ‑ and it was a subsequent application, but the Deputy Registrar at Melbourne determined that we should not be able to place before the Court pages of transcript evidence of Mr Martonyi on this point about policy.

We would seek to do so, if the policy question becomes an issue because his evidence ‑ and I will not discuss it in detail because it is not presently in the appeal book so to speak ‑ but he gave evidence about the Council’s policy and practice regarding panel hearings.  So, we are in a somewhat difficult position because those pages of transcript are not included in the appeal book.  Now, if I can return to the ‑ ‑ ‑

KIEFEL J:   Was his evidence at odds with what had been said by Ms Hughes?

MR KENDALL:   It was not at odds.  It was to the same effect that the Council preferred to convene a panel and had a practice of appointing a panel rather than making an application to a Magistrates Court for a destruction order.  The judgment of the Court of Appeal to which you were referred in that respect records the fact that it was what the court called “the practice of the Council” ‑ ‑ ‑

KIEFEL J:   Well, you do not suggest that the finding of fact is incorrect?

MR KENDALL:   No, we say it is correct.

KIEFEL J:   There may not be a need to have a look at the policy.

MR KENDALL:   Yes. 

KIEFEL J:   Yes.

MR KENDALL:   Then returning to our outline, I think in fact that I have more or less said what is in paragraph 4, namely that Ms Hughes was more than a mere informant and I will not repeat all of that.

KIEFEL J:   I thought we had actually got to about paragraph 6 on your outline.

MR KENDALL:   In effect, yes, your Honour, we have.  Just before going to that, can we say, and I will not read them, but in addition to the decisions in Dickason which we refer to in paragraph 5.1 and Law, of which I read part, we also rely on R v Optical Board of Registration – the citation is given – and Carver v Law Society.  Now, in the McGovern Case, Chief Justice Spigelman classified these cases as being examples of a conflict of interest, and in Dickason at page 259, Justice Isaacs referred to what he described as “incompatibility”, and if I may take your Honours to the Dickason Case.

KIEFEL J:   Is it your contention that that is a preferable way of describing what arises in the case of, say, a prosecutor than as saying that they have an interest in the proceedings?

MR KENDALL:   We would say that the requirement for impartiality is but a subcategory of the requirement that there not be a conflict of interest.  In other words, the requirement that there be no conflict of interest embraces a requirement that there be impartiality.  Now, Justice Isaacs perhaps had a different view.  If I can refer your Honours to what his Honour said at page 259 in the Dickason Case, and in doing so I should point out this, that, of course, part of the decision in Dickason has been overruled by the decision of this Court in Ebner.  That is the part that deals with automatic disqualification said to have followed from a judge having a pecuniary interest in a matter.  That is of no direct consequence here.  The passage we rely on begins with the word “But” which is some 15 lines down page 259, where his Honour said:

But there is another kind of disqualification and that is what I may term “incompatibility”.  If it is incompatible for the same man to be at once judge and occupy some other position which he really has in the case, then primâ facie he must not act as a judge at all.  That is a fundamental and essential principle of justice.

His Honour went on to refer to two exceptions to the rule.  They are not applicable in this present case.  What we respectfully submit is that Dickason is still good law in respect of what was described by Justice Isaacs as “incompatibility”.  That probably is synonymous with the requirement to be impartial, and we say that the requirement to be impartial is embraced by the requirement that there be an absence of conflict of interest.  When one approaches apprehended bias based on conflict of interest, it will embrace the requirement that the person making the decision be impartial.

Next, if we could refer your Honours to Stollery itself, and before doing so, can we refer to the three reasons which the Court of Appeal advanced for not applying that case?  They appear at appeal book page 479, paragraphs 78, 79 and 80.  Having discussed the Stollery Case, and in particular the part of the judgment of Chief Justice Barwick in that case – that is at appeal book page 478 – the Court of Appeal said, appeal book page 479:

His Honour went on to conclude that the reasonable inference to be drawn by the reasonable bystander was that Mr Smith was in a position to influence the result . . . Accordingly, in a matter in which the Board was bound to act in a judicial manner, natural justice was denied.

Then come the Court of Appeal’s three reasons for saying that the present case is “plainly distinguishable” from Stollery –

First, the panel hearing was not a quasi-judicial hearing of the type required to be conducted by the Greyhound Racing Control Board.  The panel was not ‘bound to act in a judicial manner’ save in the limited senses we have explained.

We do not quite understand what is meant by “the limited senses” that they have explained.  We suspect it is a reference back to what the trial judge said when she said that a person such as the appellant was entitled to what her Honour described as a genuine hearing.  It is reproduced in the reasons of the Court of Appeal at appeal book page 470, where the court quotes paragraph 110, among others, and quotes this paragraph and three other paragraphs with apparent approval.  At paragraph 110, the trial judge said:

Accordingly, a requirement for impartiality exists to the extent necessary to give the persons affected by the decision under s 84P(e) – the owner of the dog and possibly any victim of an attack - a genuine hearing as to whether the dog is capable of living safely in the community.

BELL J:   Then her Honour applied the test that Justice Basten proposed in McGovern and the Court of Appeal endorsed that approach.

MR KENDALL:   Yes, but McGovern, of course, is a wholly different case on the facts.

BELL J:   You distinguish the determinations of elected bodies respecting planning decisions from a determination of this character?

MR KENDALL:   Yes, we do, because here one is concerned with the destruction of a legal right.  Returning to what the Court of Appeal then said at paragraph 78, appeal book page 479:

the panel hearing was not a quasi-judicial –

Of course, it was not a quasi-judicial hearing of the type conducted by the Greyhound Racing Control Board in Stollery.  Whether the panel was bound to act in a judicial manner – the Court of Appeal says not – what is claimed is that it was bound to apply the requirements of natural justice. 

Whether one says that that entails acting in a judicial manner in a sense becomes somewhat circular, at least this much, that if there is a requirement to avoid a conflict of interest, and we say in this case there is, then we submit that requirement cannot be diluted or watered down.  It is not like some of the other aspects of the rules of procedural fairness whereby, depending on a particular statutory context or a particular process being embarked upon, certain of the requirements of the rules of procedural fairness can be, as it were, diluted or adjusted to suit the particular nature of the inquiry.

This is different. If a person is required to not have a conflict of interest then one cannot say, “Well, having regard to the fact that this is some kind of administrative process under the Act, therefore, one can dilute the requirement that there be no conflict of interest”. We respectfully ask how could that be done as a matter of practice? How could a person have, for example, a little bit of a conflict and still participate as a decision‑maker?

GAGELER J:   How do you articulate the interest that you say is in conflict with the duty to act impartially as a decision‑maker?  What is the interest?

MR KENDALL:   We say, your Honour, that Ms Hughes had a conflict because of her role as an accuser before the Magistrates Court.  That meant that she was thereafter disqualified from participating in the decision‑making process of the panel.

GAGELER J:   I hear what you say at that level, but you characterise it as a conflict of interest.  What is the interest?  Is it an interest in the outcome?  Is it an interest in vindicating prior conduct?  How do you put it?

MR KENDALL:   It is an interest in the outcome.  In our submission, she embarked upon a course whereby she was seeking the destruction of the dog.  She said ‑ ‑ ‑

KIEFEL J:   Well, that might be something of an overstatement.  At the point of the Magistrates Court hearing in her role involved in laying the charges and gathering evidence she may have had an interest in the vindication of her decision to prosecute, to achieve the conviction ‑ ‑ ‑

MR KENDALL:   Yes.

KIEFEL J:   ‑ ‑ ‑ in relation to the panel hearing.  Her interest might perhaps be described as vindication of her decision that there were at least two choices:  destruction of the dog or declaration of a dangerous dog but in any event, that something should occur to the dog.

MR KENDALL:   Yes.

KIEFEL J:   One of two courses, not necessarily destruction of the dog, but do you put it any higher than that persons who are putting forward as an accuser or otherwise options for decisions and identifying them as appropriate to be made have an interest over and above decision‑makers generally on the ultimate decision?

MR KENDALL:   Well, we do not say that we have to do that.  It can be simply that – well, I will come back to the evidence presently, but it can be simply that she was participating in the process of determining what should happen to the dog, as a consequence of the finding of guilt in the Magistrates Court.  Whether she argued before the panel, when the panel retired, and she participated in the discussions for the destruction of the dog, is of course not a known factor.  But this much is apparent.  She had been inquiring of the possibility of the destruction of the dog called Bub, that is exhibit KH 10, whether she could get a destruction order in respect of Bub, depending upon what charges were pleaded to.

KIEFEL J:   But can we just distinguish the Magistrates Court and the panel.

MR KENDALL:   Yes.

KIEFEL J:   The conviction by plea in the Magistrates Court provided a platform for consequential decisions by the Council.

MR KENDALL:   Yes.

KIEFEL J:   Not necessarily destruction but there are at least two decisions which had to be made and before the panel sat, she had put forward as appropriate two possible courses of action, but they were courses of action with respect of the dog consequent upon the conviction.  Is not that the way you would characterise her position?

MR KENDALL:   Well, there were in reality two courses of action.  We say that she had shut off one of them ‑ ‑ ‑

KIEFEL J:   Well, I think you might be ‑ ‑ ‑

MR KENDALL:   ‑ ‑ ‑ and that she was pursuing the destruction option.  Even the letter which ‑ ‑ ‑

KIEFEL J:   I think you need to maintain your focus upon the notion of incompatibility of roles, rather than particular steps taken and what motive you attribute to those steps.

MR KENDALL:   Yes.  Then we say it is incompatible for her, having played such an active part in the earlier stages of getting the plea of guilty in the Magistrates Court, to then be involved in deciding what should be the fate of the dog and that that is sufficient.  I do not think I can take the matter any further.  The prohibition is simply this.  She was an accuser, the Court of Appeal accepted that she was an accuser, and she cannot therefore be a decision‑maker in a related matter.

KIEFEL J:   At paragraph 7 of your outline you deny the need to articulate the logical connection referred to in Ebner.

MR KENDALL:   Yes.

KIEFEL J:   That is a development from what you have just been discussing about this being incompatibility.

MR KENDALL:   Yes.  In Ebner at paragraph 8 there are two stages identified and the trial judge held that we had failed – I am sorry, the appellant had failed to make out that second stage; that is, she had not established the so‑called logical connection.  We submit that in a case where the requirement for impartiality is in issue, that that is not a requirement, and Ebner should be seen, in our submission, as being essentially confined to cases involving circumstances where judges are alleged to have a pecuniary interest which affects ‑ ‑ ‑

KIEFEL J:   Is not Ebner stating a more fundamental principle than just limited to those circumstances and, if that is so, and there is a two‑stage test proposed at Ebner 205 CLR 337 at 345, maybe it is just that some deeper thought needs to be given to how one would describe the interest in a case such as this. True, factually Ebner is only dealing with a question of pecuniary or indirect pecuniary interests, but their Honours acknowledge at page 359, paragraphs 61 and 62, the question of a party being “a moving party” in proceedings, an “incompatibility”, so one would infer that their Honours consider that that is susceptible of identification in the various categories that they have previously discussed, as an interest.

MR KENDALL:   We would describe the passages beginning at paragraph 59 through to paragraph 63 as their Honours there, as it were, carving out a kind of exception and recognising that cases of what is called “incompatibility” stand in a different class and that therefore what appears as the second requirement in paragraph 8 of Ebner does not apply to cases concerning the independence of a judge or a judge as party as is described ‑ ‑ ‑

KIEFEL J:   There is another possibility that at paragraph 61 the reference to a “judicial officer” being “a moving party” is an identification of the interest and the “incompatibility” at paragraph 62 as identifying the logical connection to why the decision‑making cannot be carried out.

MR KENDALL:   Yes.  The same point was expressed in different terms by Chief Justice Spigelman in New South Wales in the McGovern Case and we have set this out at paragraph 33 of our first submission.  His Honour said at page 510:

A conflict of interest requires a different analysis as to the relationship, as reasonably perceived, between the interest and the decision.  Questions of fact and degree do not arise in the same way.  In a pre‑judgment case it is necessary to consider the degree of “closure” of the allegedly closed mind.  Where a relevant conflict of interest is established the reasonable apprehension follows almost as of course.

In our submission, the paragraphs in the Ebner Case to which your Honour Justice Kiefel has just referred indicate that the court was not there making a universal statement as to the applicable rule.

NETTLE J:   Mr Kendall, could it be said that someone who has an undoubted interest in securing a conviction might reasonably be supposed to have an interest in securing a destruction order?

MR KENDALL:   Well, the answer is yes, and if one looks at the history of what happens here, and there were negotiations – extensive negotiations – which led to the plea bargain.  There was an insistence ‑ and it is revealed in the emails passing between the Council’s solicitor and Mr Melke ‑ there was an insistence on a plea of guilty to the charge numbered 4.  That is necessary, of course, to enliven the jurisdiction, but we do not have to establish that that was the driving force but it does look as though ‑ ‑ ‑

NETTLE J:   It is a question of perception, is it not, the fair‑minded observer with a knowledge of fact.

MR KENDALL:   Yes, and it does come back to how a fair‑minded observer might consider it and would the fair‑minded observer reasonably informed not ask, well, Ms Hughes has pursued this entire matter, has negotiated the plea bargain to get a required plea, and now she ends up being involved in the decision‑making process concerning the fate of the dog.

KEANE J:   But you do not really even have to look to the outcome or to some notion of a desired outcome, do you?

MR KENDALL:   No.

KEANE J:   Why is it not the case that the relevant interest arises by reference to the roles played in the decision‑making process?  What Justice Isaacs was talking about was the difference of interest which he described as “incompatibility” between the role in the decision‑making process of the prosecutor and the role of the judge.  So that the relevant conflict of interest arises not because of a desire about the outcome, not because you need to prove that Ms Hughes wanted to achieve the destruction of the dog, but simply because in the decision‑making process the role of the prosecutor or the complainant is necessarily different from and incompatible with – in conflict with, if you like – the role of the decider.

BELL J:   Can I just take you to the letter to the appellant advising of the panel hearing?  It is at appeal book 353.  What is said there is that the chairperson will be Mr Dickson.  Now, we understand, in fact, it turned out to be Mr Kourambas, and it is explained that Mr Dickson is the person “delegated to make the decision”.  After referring to Ms Hughes, it then says:

The third panel member will be an officer of Council who has not had any involvement in the matters –

for the purpose of providing assistance in what is described as “the decision making process”, and then it is noted that –

The officer involved the investigation may be present but they will not be involved in the decision making.

That rather points to the prominence of the discussions of the panel as the relevant decision‑making process, does it not?

MR DONAGHUE:   It does suggest that.  As against that, your Honour, the evidence is that Ms Hughes drafted this letter.  Ms Hughes clearly knew that she was going to participate in the decision‑making process, because she said so in the middle of that paragraph, so one cannot infer, as I think you are invited to infer, that this recognises the impropriety of involvement in that way, because Ms Hughes clearly did not think there was any impropriety about her taking part.

The letter does, I accept, imply a significance to the panel that under the Act it just does not have. There is not a ready explanation for the adoption of that panel‑type hearing in this context, but there is nothing in the Act to stop the Council having a recommendatory function of this kind carried out. As it turns out, as your Honour recognised, the panel was not constituted in quite the way that was expected, and the decision was not made quite the way that was expected, but there is no point taken about that now. I think there may have been a point taken about it below, but I am not

sure about that.  Your Honours, unless the Court has any other questions, those are our submissions.

KIEFEL J:   Yes, thank you, Mr Donaghue.  Anything in reply, Mr Kendall?  You would have to deal with the notice of contention point, of course.

MR KENDALL:   Yes, before I deal with that, can I say that we rely on our written submissions in reply.  The notice itself we do not.  The issue raised is foreshadowed in the submissions of our learned friends so we do not want to take any kind of surprise objection to it.  We would simply make this observation that as our learned friends point out, there is a difference between what is said in paragraph 65 of the reasons for judgment and what appears, I think, it is paragraph 68.  In 68 the Court accepts that Ms Hughes had a material part in the decision‑making process.  That is rather different from what appears in 65 where it is observed that Ms Hughes was not, in fact, the decision‑maker.

In our submission, Ms Hughes was, for the reasons we have already advanced, actively involved in the decision‑making process and had an influence in the result.  That seems inescapable and in one of the examples given by your Honour Justice Gageler, emanating from the Davis thesis, one does not know what it is that Ms Hughes brought to the discussion in the panel.  She had certainly made inquiries of the housing commission.  It is possible to speculate and say, well, she might have said cannot do a dangerous dog declaration because the housing commission will not allow the dog to reside at the house, but that is speculative. 

The very reason why one cannot, in these sorts of cases, speculate about what might have gone on in the course of the discussions - that is the reason why the law is, as far as people who stand in position of accuser and judge is concerned, it is enough that the person is present in the room.  I think it is Justice Gibbs in the Stollery Case makes the point that the mere presence of the person in the room can, in an appropriate case, be sufficient to have an influence on the reasons of those that are making the decision. 

So, in our submission, this case comes back to a very simple proposition.  Ms Hughes was undoubtedly an accuser and she participated in the decision‑making process and cases for a hundred years or more have said that that must not happen.  If we can just refer very quickly to three relevant ones - first, in Hall, a place relied upon by our learned friends, at page 398, it is said:

There are, however, limits.  It is now firmly established that, where a member of the tribunal not merely provides information but acts in substance, as (to use the words used in the cases) accuser, prosecutor, or interested party, the tribunal proceedings will be vitiated.  These terms are not definitions of the proscribed relationships.  But whenever a tribunal member occupies such a position, then, irrespective of actual bias, his participation will vitiate the tribunal’s deliberations.

Two other examples to which we have referred are the Optical Board Case and the decision in Carver.  If we could just very quickly refer the Court to passages in the Carver Case - that was a case where a solicitor who was on the committee of the Law Society which preferred certain charges later was elected to the Council of the Law Society and, in effect, attempted to sit in judgment on the matter.

It was held that a person who was a member of a professional governing body or its relevant committee when it instituted disciplinary proceedings to be dealt with by a tribunal generally ought to be disqualified from sitting on that tribunal.  We rely, in particular, on what was said by Acting Justice of Appeal Sheppard at page 102 of the report wherein he makes observations about the fact that it is the appearance of bias which is in question and makes the observation that the solicitor concerned, a Mr Clisdell, who had been on the committee which preferred the charges ought not to have sat and, to like effect, the observations of Justice of Appeal Powell - and I will not read this but it is at page 99 to ‑ essentially pages 99 and 100. 

There are a lot of reported cases where there is no personal interest on the part of the person whose position, as it were, is said to be compromised in this regard.  It comes down to this.  If a person is an accuser and the Court of Appeal has so found, and the Court of Appeal has found that that person – Ms Hughes in this case – participated in the decision then the rule which prohibits that is broken.  In our respectful submission, that is the essence of what has occurred here.

Our learned friends made extensive reference to the statutory framework, seeking to say that if a person was in some respect barred from participating in a decision about a dog in a particular instance that that indicated that the statute acknowledged that somehow the content of the rules of procedural fairness should be reduced.

In our respectful submission, Parliament must be taken to have been aware of the process by which there were two options, as it were, available to a council, one by making application to a court and the other by making the decision, as it were, internally pursuant to section 84P. We note, incidentally, that while it was hinted at in our learned friend’s submissions that perhaps it was necessary that the principle of necessity should be invoked in this instance, it was never raised at trial. It was never said for a moment that the Council needed ‑ ‑ ‑

KIEFEL J:   I think, to be fair, Mr Donaghue’s reference to it was in response to a question from the Bench.

MR KENDALL:   It may have been, yes.

KIEFEL J:   I do not think it was put forward as a ground.

MR KENDALL:   Well, I will not take the point further, but certainly it has not been otherwise contended in the history of the matter.  We rely on paragraphs 59 through to 63 of the judgment in Ebner.  In our submission, the appellant was not required to satisfy the second stage of the test described in paragraph 8 of the judgment in that case and, indeed, as your Honour Justice Nettle pointed out, it is plainly stated – I think it is in paragraph 61 – that a judge is disqualified from deciding a case to which he or she is a party, even if the judge has no pecuniary interest in the outcome of the case.

We rely upon the paragraphs beginning at paragraph 59 through to 61 in support of our contention that Ebner does not apply generally to the facts in this case.  It was recognised, however, in paragraph 63 – it is more or less accepted that it is automatic, the disqualification is automatic.

One last matter, and it is in paragraph 66 of the Court of Appeal’s judgment, beginning with the section dealing with “conflict of interest”.  The court quotes extensively from the judgment of Chief Justice Spigelman in the McGovern Case, through paragraphs [38], [39] and [40], and we place particular emphasis on what is in paragraph [40]:

In such cases, the independent observer might reasonably believe that the influence on the others of the person(s) who manifested bias of that character could well go beyond the usual process of internal debate.  Accordingly, an independent observer could reasonably conclude that the entire collegiate body may not bring an impartial mind to the decision-making process.

The court accepted at paragraph 67 the principle stated by Justice Isaacs.  What this Court has before it is this - a determination by the Court of Appeal that Ms Hughes was an accuser and a finding that she participated in the decision‑making process.

In those circumstances, it was required that they be free from a conflict of interest.  So, in the end, when one looks at what is in paragraphs 70 to 75 of the Court of Appeal’s reasons for not accepting what

a reasonable observer would conclude it comes down to this.  Did Ms Hughes cease to be an accuser? 

May we finish by referring your Honours to what was said in Rendell in that regard; it is at page 507 of the report.  There, of course, the detective sergeant involved had no particular personal interest in the matter but the court observed and, of course, the statements are obiter – observed this of Detective Sergeant Conwell:

These included the fact that it had not been shown that he had influenced the Board in its decision; that issues of guilt or innocence of the crime had been put to one side by the approach which the Board took; and that a non‑curial procedure was adopted in such cases.  We would add to this that there was no case before us indicating one way or the other what Detective Sergeant Conwell’s attitude was to the claimant.  For all we know he may have been personally sympathetic to the claimant’s early release on licence.  The fact remains that the presence on the Board of one member so closely identified with the prosecution of the claimant on a charge of murder, at the very least gives some ground for arguing that an objective observer would reasonably apprehend bias.

They are the matters to which we seek to refer.  If the Court pleases.

KIEFEL J:   Thank you.  The Court reserves its decision in this matter and the Court adjourns until 10.00 am tomorrow.

AT 4.14 PM THE MATTER WAS ADJOURNED