Lu v Walding

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;