K and K GC Pty Ltd as trustee for the K and K Family Trust v Gold Coast City Council

[2017] QPEC 69

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

K & K GC Pty Ltd as trustee for the K & K Family Trust v Gold Coast City Council [2017] QPEC 69

PARTIES:

K & K GC PTY LTD AS TRUSTEE FOR THE K & K FAMILY TRUST
(appellant)

v

GOLD COAST CITY COUNCIL
(respondent)

FILE NO/S:

20 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

7 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2017

JUDGE:

Kefford DCJ

ORDER:

The respondent’s application is refused

CATCHWORDS:

COURTS – JUDGES – apprehension of bias – where judge mentioned complaint made by associate and requested Counsel maintain courteous discourse – whether reasonable apprehension of bias

CASES:

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; [2000] 205 CLR 337, applied

Michael Wilson & Partners Ltd v Robert Colin Nicholls [2011] HCA 48; (2011) 244 CLR 427, applied

COUNSEL:

M A Williamson with M J Batty for the appellant

M F Johnston with T Jackson for the respondent 

SOLICITORS:

Connor O’Meara Solicitors for the appellant

Hopgood Ganim Lawyers for the respondent

Introduction

1. This is an appeal by the appellant against a decision of Gold Coast City Council to refuse a development application for a service station, fast food premises (drive through coffee shop) and takeaway food premises.

1. The issues in dispute in the substantive appeal are:

(a)        whether approval of the proposed development conflicts with the Gold Coast City Planning Scheme 2003 by reason of:

(i)          the use being an undesirable use;

(ii)        inappropriate setbacks;

(iii)        impacts on residential character and amenity;

(iv)       unacceptable traffic impacts; and

(v)        the absence of a demonstrated need;

(b)        whether conflict with provisions of the 2016 Gold Coast Planning Scheme is a basis on which to refuse the development application; and

(c)        the nature and extent of the conflict and whether there are sufficient grounds to justify approval of the proposed development notwithstanding conflict with the 2003 Planning Scheme.

1. Determination of these issues will require consideration of the evidence of expert witnesses and lay witnesses.  It may also require determination of the proper construction of planning instruments.

Application for recusal

1. Earlier today, at the commencement of the third day of hearing, Counsel for the respondent applied for me to recuse myself from the further conduct and hearing of the case by reason of a reasonable apprehension of bias caused by the comments made by me in open court on the morning of 7 November 2017.

Facts and circumstances relied on

1. The facts and circumstances relied on to found the application are as follows.

1. On 7 November 2017, the following exchange occurred in court:

“MR WILLIAMSON:   Your Honour, the first witness for this morning is Mr Nathan Christopher Powell.  I call Mr Powell.

HER HONOUR:   Just before you do there’s ‑ ‑ ‑

MR WILLIAMSON:   Sorry, your Honour.

HER HONOUR:   That’s fine.  Just a few matters I wish to raise.  Mr Johnston ‑ ‑ ‑

MR JOHNSTON:   Yes, your Honour.

HER HONOUR:   ‑ ‑ ‑ my Associate reported to me that before court this morning ‑ ‑ ‑

MR JOHNSTON:   Yes.

HER HONOUR:   ‑ ‑ ‑ you engaged with her in a manner that was rather aggressive.  It might even be perceived by some as rude.  I’d ask you to remember the relationship between an Associate and a judge.  If there’s matters about the efficiency of the court and access to the courtroom and the need to pack up and set up and the like that you wish to raise, it is appropriate to raise them through my Associate, but you should maintain a courteous manner when doing so and if you don’t think that you can do that then have my Associate ask me to return to court and the matters can be dealt with with me.

MR JOHNSTON:   Your Honour, could I just say something in response to that? 

HER HONOUR:   I am not ‑ ‑ ‑

MR JOHNSTON:   I feel I need to say something in response to that.  What occurred was I arrived at court at about 9.40 am.  The Associate left and said, “We’re just” – sorry, she said, “The court’s been locked up.”  I said, “That’s fine.  How long do you think before we need to get in?”  My junior Mr Jackson was with me.  She said, “About five minutes.”  I said, “That’s fine.  Can you just let us know,” and then I left.  There was no – from my position there was not an ounce of aggression.  There was a polite request as to when can we get access to court.  There was no – no mention at all ‑ ‑ ‑

HER HONOUR:   I believe there was a suggestion that she should return to the courtroom and tell the bailiff to unlock, but in any ‑ ‑ ‑

MR JOHNSTON:   That’s not correct, your Honour.  Sorry.  Well, I just want to record because a serious allegation has been made against me.  That’s – I just want to put on the record that that’s not correct.

HER HONOUR:   Well, perhaps different people perceive stressful situations differently, so perhaps if you just keep that in mind.

MR JOHNSTON:   Yes, thank you, your Honour.

HER HONOUR:   You were perceived by someone to be of an aggressive manner.  You may not perceive yourself in that way, but perhaps that just ought be kept in mind.

MR JOHNSTON:   Yeah.  I’m quite shocked, but thank you, your Honour.  Yes.”

1. Shortly after that exchange, the respondent indicated that it intended to deliver a new document that would significantly reduce the issues and reframe them by reference to topics, as well as providing details of the respondent’s position as to why overwhelming weight should be placed on the 2016 planning scheme.  Counsel for the respondent accepted that it was appropriate for there to be an adjournment so that the appellant might see the document before evidence commenced.  For that reason, there was an adjournment for around two hours or so.  Court resumed shortly before lunch and the first witness was called. 

1. Immediately after lunch, the following exchange occurred:

“MR JOHNSTON:   Your Honour, just before Mr Powell returns to the witness box, I just need to say a few things. 

HER HONOUR:   Yes. 

MR JOHNSTON:   This morning, there were some serious allegations raised against me personally.  I had no notice of the allegations.  They were raised in open court before witnesses, barristers, experts and clients.  I’ve rejected the allegations.  The allegations have not been withdrawn and there’s been no apology to me.  I need to review the transcript tonight to just – I was a bit shell-shocked about what happened.  I need to review the transcript so I’m absolutely sure what occurred and I need to take advice in relation to that.  So I just want to put that on the record.  I haven’t had a chance, obviously, to see the transcript but I need to do that tonight and take advice in relation to what occurred. 

HER HONOUR:   Okay, thank you.” 

1. Counsel for the respondent notes that, following that exchange, there was no withdrawal of the assertions, and no apology to Counsel about the statements that were made.

1. Before addressing on the issue of the relevant test, Counsel for the respondent noted the following:

(a)        first, notwithstanding that he says he had no particulars of the matter, at no time was he aggressive to my associate.  He acted at all times in an entirely professional, respectful and polite manner;

(b)        secondly, no reasonable person of any normal sensitivity could possibly suggest or perceive that he acted in an aggressive manner.  The situation was not a stressful one;

(c)        third, the fleeting discussion with the associate was something that occurs daily in this court house;

(d)        fourthly, in almost 11 years of practice at the private Bar, he has never had anyone suggest to him that he acted in an aggressive manner to any member of court staff, or to anyone else.  Indeed, over his 23 years as a professional person, now as a barrister, before as a solicitor in a firm and the Commonwealth Government, and in his previous professional life, not once has it been alleged against him that he had acted aggressively to any person; and

(e)        fifth, the allegation that he was aggressive, or acted in any way that could be perceived as being aggressive, or otherwise in any inappropriate way, is utterly false and untrue.

1. I accept that discussions between associates and Counsel is something that occurs regularly.  As for the other matters, these are not matters that would be evident to a lay observer and are not relevant to whether I ought recuse myself.  Similarly, the repeated submission that, before making the application, Counsel for the respondent had taken advice from numerous Queens Counsel with diverse practices, including one who offered to appear but could not as he or she was out of the State, is not relevant to the question to be determined.

The law – apprehended bias

1. In Michael Wilson & Partners Ltd v Robert Colin Nicholls (2011) 244 CLR 427, the plurality of Gummow ACJ, Hayne, Crennan and Bell JJ said at [31]-[33]:

“[31] It has been established by a series of decisions of this Co mi that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.

[32] As the plurality in Johnson v Johnson explained, “[t] he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasize that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”.

[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. The respondents did not submit in this Court or in the courts below that the trial judge had in fact prejudged any issue.”

(footnotes omitted)

1. At [63], the plurality said:

“In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that “[t]he bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated". So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.”

(footnotes omitted)

Submission on reasons for recusal

1. As to the identification of what might lead me to decide the case other than on its legal and factual matters - the matter relied on was what I said at the commencement of Court on 7 November 2017, extracted in paragraph [6] above.

1. As to the logical connection between the matter and the feared deviation from the course of deciding the case on the merits – Counsel for the respondent relied on the following points:

“(a)First, the statements by your Honour yesterday were statements of a conclusion; namely, that I was aggressive to an Associate. Your Honour had decided that something you had apparently heard or been told from your Associate was true, and should be taken at face value, and that I should be publicly admonished for it without even considering that I might have a different version of events;

(b)Secondly, the statement of conclusion (namely, that I was aggressive to the Associate) is a very serious assertion.

The word “aggressive” means characterised by “aggression”. And the word “aggression” is defined in the Macquarie dictionary in part:

“the practice of assaults or attacks; offensive action m general. .. the emotional drive to attack ... ”

I was not told whether it was asserted that I was physically aggressive. Nor was I told whether orally aggressive. But, in any event, a reasonable bystander would form the view that your Honour had formed a conclusion that I was attacking the Associate, possibly physically or orally.

Because your Honour gave no particulars of what it is said that I did or how or why it was aggressive, the statements made by your Honour, to the reasonable objective bystander, could have meant being abusive, bullying, threatening, or implying physical or mental intimidation. Although, I was not told what I did to warrant such a serious description.

This context is made worse when it is noted that the associate is a female, and there would be a reasonable perception that I was aggressive (abusive, bullying, threatening, or implying physical or mental intimidation) towards a young female associate.

A reasonable lay observer would understand that it would be entirely inappropriate for me, as a barrister of almost 11 years standing, to behave in an aggressive way to a person working in the Court who is a young woman starting her legal career. The reasonable objective person would also be aware of the current, entirely appropriate, public attention to stop domestic violence and violence against women. And that the comments of aggression against a young female, would be seen in that context.

(c)Thirdly, the context of the statement of the conclusion of aggressive conduct occurred in open Court in a public forum in front of witnesses, solicitors, barristers and client representatives. It is fairly described as a dressing-down against asserted inappropriate conduct. It would lead to the impression of a reasonable observer that your Honour had no confidence in my character or my judgment and that this reflected on my professional ability to present a case.

(d)Fourth, I was not afforded any natural justice. Your Honour did not identify any particulars as to what it is said I did. I do not know what your Honour was told. A reasonable observer would form the view that your Honour was not prepared to offer me natural justice, or would conclude that I would not be treated fairly.

(e)Fifthly, your Honour did not offer me a right to respond. I had to insist on a response. And I rejected any allegation of inappropriate conduct, and there was no retraction of the statement of conclusion.

(f)Sixthly, if the matter was to be raised, it could have been raised with appropriate discretion and with natural justice being afforded to me, and with my opponent present, say in your Honour's chambers. The reasonable observer would have noted that.

(g)Seventh, the statement of conclusion that I acted in an aggressive manner to a female associate, raised in open court and for which I was afforded zero natural justice, on its face had nothing to do with the conduct of the hearing or my conduct as counsel in presenting the case. However, the reasonable objective bystander would perceive that the assertion of aggressive behaviour (sic) was connected to the conduct of the case and the ultimate issues to be determined. Your Honor (sic) raised it as a “few matters” after the first witness was called. Your Honour put the issue squarely in the context of the conduct of the case. The reasonable objective bystander would perceive a connection between the hearing and the asserted aggressive conduct, and that it would affect things.

(h)Eighth, after I rejected the allegation, it was not withdrawn and no apology was made to me. Indeed, the reasonable objective bystander would have understood that your Honour did not retract the statement, but instead further asserted blame against me by implying that it was my problem and my fault that my undefined actions could have been reasonably perceived as aggressive by someone.

(i)Ninth, because the matter was said in open Court, an educated lay observer would know that there would be a transcript available that could be circulated and that, in any event, because the matter was said in open court, there was no duty on anyone to keep it confidential or private.

(g)Tenth, an objective observer would form the view there was either personal animus from your Honour towards me about my character in a professional sense and a view by your Honour that my judgment and character was so poor that I did not need to be given an opportunity to be heard before your Honour formed a view that I was in the wrong, and that would cause fear of a deviation from the course of deciding the case on the merits. The statements of your Honour were not fair or balanced, and showed a denial of the right to natural justice on a matter that your Honour thought it serious enough to raise in open court and to criticise me about. The objective observer would conclude that I would not be afforded a fair hearing.”

1. Counsel for the respondent then submitted that:

“Applying the test and principles of a reasonable apprehension of bias, in all of the circumstances, it is appropriate that your Honour recuse yourself from further hearing the case because a reasonable observer would form the view that your Honour would not bring a fair and balanced view to my conduct and presentation of the case, and that your Honour might not bring an impartial and unprejudiced mind to the resolution of the issues in the case. An observer would consider that my client was at a real disadvantage because I am acting in the matter before your Honour where your Honour has publicly denigrated and put a slur on my character and professional judgment in a way that showed animus and a serous denial of natural justice, which gives rise to a reasonable fear of deviation from the course of deciding the case on its merits.”

Apprehended bias not established

1. I am not satisfied that a fair-minded lay observer would have perceived me to have stated a concluded view.

1. As the transcript records, I raised the matter by saying “my Associate has reported to me that”.  I then relayed the matters that Counsel for the respondent submits were the statement of a conclusion.  In relaying what had been reported, it was evident that the issue in question was one of demeanour and manners.  As much would have been apparent to a fair-minded lay observer, given that what was relayed included the possibility that the conversation between Counsel and my associate might be perceived as “rude”.

1. Counsel for the respondent was given ample opportunity to respond to the allegation – he began responding almost immediately.  His response was to refute the allegation.  Counsel’s response addressed the question of his manners, evidently as that was how he perceived the nature of the allegation, having just heard it for the first time.

1. Some further details of the allegation were provided, when I began to relay what I had been told about the request to be made of the bailiff.  This was interrupted by Counsel for the respondent, who indicated that what I was relaying was not, in his view, correct.

1. My immediate response to Counsel for the respondent’s protestation about the accuracy of the account was to say “perhaps different people perceive stressful situations differently, so perhaps if you just keep that in mind”. 

1. This would reinforce to a fair-minded lay observer that I had not reached a concluded view on the matter and that I was open to the fact that my associate might well have misread the situation.  In fact, a fair-minded lay observer would likely perceive that Counsel for the respondent’s responses indicated that he understood my comments in that way. 

1. As would be apparent to the lay observer, my associate is a young woman who, given her age, would not have the same life experience, or likely legal experience, as that of Counsel for the respondent.  Although Counsel for the respondent may not regard the situation to be a stressful one, a lay observer would appreciate that my associate may well.

1. As is noted by Counsel for the respondent, on its face, the matter raised had nothing to do with the conduct of the hearing or Counsel for the respondent’s conduct as counsel presenting the case. 

1. The fact that I did not retract the statement, being a statement of what my associate had said to me, nor offered any apology, is consistent with the fact that I had not expressed any concluded view about whether Counsel had, in fact, behaved inappropriately. 

1. For those reasons, I am not satisfied that the respondent has:

(a)        identified a matter that might lead me to decide the case other than on its legal and factual merits; or

(b)        demonstrated a logical connection between the exchange relied on and the feared deviation from the course of deciding the case on its merits.

1. I am not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in this case.

1. As was observed in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; [2000] 205 CLR 337 at 348 [19] – [20]:

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

[20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.”

1. For completeness. I note that after the initial exchange on 7 November 2017, and again after the exchange following lunch on 7 November 2017, the trial proceeded.  Witnesses were called and cross-examined.  Objections were taken and ruled on.  There is no suggestion by the respondent that during that time I acted other than in an entirely impartial and judicial way.

1. The respondent’s application is refused.