Lu v Walding

[2020] NSWLEC 94

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lu v Walding [2020] NSWLEC 94

Hearing dates:

17 July 2020

Date of orders:

17 July 2020

Decision date:

17 July 2020

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

Application for recusal on the ground of a reasonable apprehension of bias upheld.

Catchwords:

BIAS: application by first and second respondents for judge to recuse herself on the grounds of apprehended bias – association between trial judge and expert witness for the applicant – expert witness the spouse of the trial judge’s former longstanding associate – trial judge met the expert as a consequence of that employment relationship – trial judge in contact with former associate – application upheld.

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 79C(1) (s 4.15(1))

Cases Cited:

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140

Ibester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

Category:

Principal judgment

Parties:

Lin Lu (First Applicant)
Frederick Woo (Second Applicant)
Adrian Walding (First Respondent)
Alexandra Walding (Second Respondent)
Northern Beaches Council (Third Respondent)

Representation:

Counsel:
Mr N Eastman (First and Second Applicants)
Mr T Hale SC (First and Second Respondents)
N/A (Third Respondent - submitting appearance)

Solicitors:
Bick & Steele (First and Second Applicants)
Mills Oakley (First and Second Respondents)
N/A (Third Respondent - submitting appearance)

File Number(s):

2019/48339

Ex tempore Judgment

The Trial Judge Discloses Her Association With an Expert Witness in the Proceedings

1. These Class 4 judicial review proceedings concern a dispute between neighbours over the construction by the first and second respondents, Mr Adrian Walding and Ms Alexandra Walding (“the Waldings”), of a detached garage with roof terrace and associated landscaping (“the development”).

2. It is alleged that the garage structure has been built on land owned by the third respondent, the Northern Beaches Council (“the Council”). The development application did not identify in words that the garage structure was to be constructed on Council owned land and did not list the Council land as land to which the application related. The Council’s written consent was neither sought nor obtained for the development.

3. The applicants, Ms Lin Lu and Mr Frederick Woo, lodged an objection to the development application.

4. Development consent was granted on 9 May 2017. A construction certificate was issued on 19 July 2018 by the Council as the principal certifying authority and the development has been almost wholly constructed.

5. The orders sought in the amended summons filed on 12 April 2019 (the original summons was filed on 13 February 2019) seek declaratory and injunctive relief and an order that the development be demolished.

6. The challenge to the validity of the consent is three-fold:

1. first, an absence of landowner’s (that is, the Council’s) consent;

2. second, the failure to consider a mandatory relevant consideration under the former s 79C(1)(b), (c) and (e) of the Environmental Planning and Assessment Act 1979, namely, the likely impact of the development, including its environmental impacts on both the natural and built environments, the social and economic impacts in the locality, the suitability of the site for the development, and the public interest; and

3. third, unreasonableness.

7. During the course of preparation the night before a pre-trial mention, I became aware of the identity of a proposed expert witness engaged by Ms Lu and Mr Woo, namely, Mr Lee Kosnetter, a town planning expert.

8. Mr Kosnetter has affirmed two affidavits in the proceedings (dated 20 September 2019 and 19 March 2020). Appended to both affidavits are expert reports.

9. Mr Kosnetter’s expert reports opine as to matters that are expressed to be directed to the exercise of the Court’s discretion to grant the relief sought, viz, his assessment of the town planning environmental impacts of the “as constructed” garage.

10. The Waldings assert that his evidence is irrelevant to the issues for determination in the proceedings and have objected to it in its entirety.

11. The admissibility of Mr Kosnetter’s evidence is a matter for the trial judge and it is not appropriate to comment further on this issue.

12. In summary, Mr Kosnetter states that, in his view, irrespective of the fact that the structure is located on Council land, the planning impacts of the development are “unacceptable and unreasonable in the circumstances and the structure would not have been approved when assessed against the matters contained in section 4.15 of the EP&A Act (then section 79C).” In particular, the visual impact of the structure when viewed in the context of the streetscape and from the Waldings’s property is “excessive, abrupt, imposing and unreasonable” as assessed against section 3.1 of the Manly Development Control Plan 2013 (“MDCP”). It is his view, not resiled from in his later report, that “the structure fails to satisfy multiple objectives and controls in the” MDCP and that the Council should never have permitted it to be built.

13. The Council takes no active part in the proceedings and has filed a submitting appearance.

14. The Waldings have engaged Mr Anthony Betros of ABC Planning to provide town planning expert evidence in reply.

15. Assuming for present purposes that the town planning evidence is admissible, the parties have expressed their intention to cross-examine the town planners, which will include Mr Kosnetter.

16. A difficulty has arisen because until last year, Mr Kosnetter’s spouse, Ms Amber Kosnetter, was my long-term associate. She had been employed in this position for almost a decade. As anyone who has familiarity with the functioning of judicial chambers is aware, the relationship between associate and judge, especially in a chambers comprising only three people (judge, associate and tipstaff), is typically a close one.

17. Further, although she resigned from the Court last year to assist Mr Kosnetter with his town planning consultancy, I maintain contact with Ms Kosnetter and occasionally see her socially. As may be expected in all the circumstances, I have met Mr Kosnetter several times over the past 11 years. Furthermore, because of Mr Kosnetter’s town planning expertise, I have had occasion to discuss planning issues (unrelated to the Court) with him.

18. Most of these facts were disclosed to the parties immediately during the pre‑trial mention in order for them to consider whether either party wanted to make an application for me to recuse myself on the grounds of apprehended bias. Perhaps unsurprisingly, Ms Lu and Mr Woo were not troubled by the indirect association that I have with Mr Kosnetter. The Waldings were, however, concerned and requested time to consider their position overnight. The following day they made an application by email communication to chambers for me to disqualify myself. I informed the parties that I would consider the application overnight and that I would deliver an ex tempore judgment the next morning at 10 am, when the matter had been next listed for a mention.

19. For the reasons given below I am of the view that I must accede to the Waldings’s request.

The “Double Might” Test for Apprehended Bias

20. The test for disqualification on the grounds of a reasonable apprehension of bias is well known. It was most recently stated by Edelman J in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140 (at [132] and [133], footnotes omitted):

132    The test for a reasonable apprehension of bias is a test of a “double might”: whether a fair-minded lay observer might reasonably apprehend that the adjudicator might not bring an impartial and independent mind to the fair resolution of the issue to be decided. The notion of independence and impartiality is not limited to prejudgment of the issue. It is a “recognition of human nature” and “human frailty”. It can include any other “preponderating disposition or tendency” and can arise by matters that create emotions of sufficient strength to sway opinion: “affection or enmity”, “fear, hatred or love”.

133    The prism through which a reasonable apprehension of bias is tested, a fair-minded lay observer, is a familiar legal construct used for objective assessment. The construct assumes that the person is “intelligent”. The person will be aware of the phenomenon that in adjudication, as in life generally, the mental plasticity of human decision making is subject to the unconscious

stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. … Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person].

21. The so-called “double might” test is less easy to apply than it is to state. Its application requires attention to four discrete elements:

1. first, there is the concept of the “fair-minded lay observer”. Use of that expression reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not, as was explained in Johnson v Johnson, “the assessment by some judges of the capacity or performance of their colleagues” ([2000] HCA 48; (2000) 201 CLR 488 at [12]);

2. second, the test is objective. Attention is directed to a third party’s assessment of the judge’s conduct and capacity, and not, as is the case with actual bias, an assessment of the judge’s own state of mind;

3. third, the test involves a three stage (as more recently articulated) analytical process (CNY17 at [21] per Kiefel CJ and Gageler J):

1. first, it is necessary to identify the factor which is claimed might lead a decision-maker to decide the matter otherwise than on an independent and impartial evaluation of the merits;

2. second, there must be an articulation of how the identified factor might cause a deviation from the neutral evaluation of the merits; and

3. third, there must be consideration of the reasonableness of the apprehension of the deviation being caused by the identified factor (in respect of this third step see also Ibester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [59] per Gageler J). In this regard, “it is the court’s view of the public’s view, not the court’s own view, which is determinative” (Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 52); and

4. fourth, the use of the term “might” lowers the burden of proof below that of probabilities. Accordingly, the Court need neither be satisfied that the fair-minded lay observer “would” have such an apprehension nor must any apprehension in the mind of the observer themselves involve a state of satisfaction on the probabilities.

22. Apprehended bias must be assessed by reference to all of the circumstances of the case (CNY17 at [135]). This will include the nature of the decision-maker. For example, a judicial officer’s independence and security of tenure might permit a more robust approach to the application of the test (CNY17 at [136] and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [132]).

23. Having said this, it must not be overlooked that the purpose of combining the “double might” test with the notion of the “hypothetical fair-minded lay observer” is to emphasise that the bias rule is concerned not only with the public appearance of independence and impartiality on the part of the decision-maker, but also exists to ensure this actuality (CNY17 at [18]).

24. Finally, it should be observed that there is considerable width when the concept of association is the basis for a reasonable apprehension of bias. As Deane J noted in Webb, the apprehension might arise from “some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings” (at 74).

Recusal Must Occur

25. Applying the legal principles set out above to the circumstances of this application, it becomes tolerably clear that I ought to recuse myself.

26. In the present case, my indirect association with Mr Kosnetter occasioned by the relatively recent former employment relationship with Ms Kosnetter within the Court as described above, is sufficiently problematic that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and independent mind to the resolution of the issue to be decided in this case, and in particular to the acceptance, rejection, or even weight to be placed on Mr Kosnetter’s evidence.

27. That apprehension would, in my view, cause the fair-minded lay observer as a member of the public to reasonably form the view that either directly through my limited association with Mr Kosnetter, or more probably through my indirect but previously close working relationship with Ms Kosnetter over a long period of time, I would not bring to bear the impartiality and independence required in assessing Mr Kosnetter’s evidence.

28. Of course this is not to say that in all circumstances where the partners of former employees of the Court are before the court in some capacity (either as a party or a witness) a reasonable apprehension of bias will invariably arise. Each case will turn on its facts.

29. In this application a relevant factor is the length of time since the employment relationship with the former employee and the existence of any ongoing relationship with that person. In this case, 16 months is, in my opinion, insufficient to provide the necessary temporal distance required to objectively eschew any reasonable apprehension that I might decide the matter otherwise than on an independent and impartial evaluation of the merits of the matter, especially in light of the ongoing social contact that I maintain with Ms Kosnetter, and given the nature and capacity of the previous interactions with Mr Kosnetter. Were this application made in 24 or even 12 months’ time, the result may well be different.

Conclusion

30. For the reasons given above I therefore disqualify myself from hearing this matter. I will immediately inform the Registry of the decision so that the final hearing may be reallocated to another judge by the Chief Judge of the Court. Having regard to the Court’s list next week, my decision to recuse myself ought not cause the hearing date to be vacated.

31. The parties have, however, consented to me dealing with the matter procedurally today for the purpose of making any further orders to prepare the matter for final hearing next week.

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Decision last updated: 17 July 2020