McGovern v Ku-Ring-Gai Council
[2008] NSWCA 209
•1 September 2008
Reported Decision: 161 LGERA 17072 NSWLR 504
New South Wales
Court of Appeal
CITATION: McGOVERN v KU-RING-GAI COUNCIL [2008] NSWCA 209
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 30 June 2008
JUDGMENT DATE:
1 September 2008JUDGMENT OF: Spigelman CJ at 1; Basten JA at 64; Campbell JA at 234 DECISION: (1) In proceedings no. 40103 of 2007:
(a) dismiss the appeal;
(b) order the appellants to pay 75% of the second respondent’s costs of the appeal and 25% of the Council’s costs of the appeal.(2) In proceedings no. 40114 of 2008:
(3) Order that the respondents pay 75% of the appellants’ costs of the proceedings in this Court, in the following proportions, namely 50% payable by the Council and 25% payable by the second respondent.
(a) grant the applicants leave to appeal and direct that the notice of appeal be filed within seven days;
(b) in respect of the appeal, set aside the orders made by Pain J in the Land and Environment Court on 11 February 2008 and in lieu thereof order that the applicants pay:
(i) 25% of the costs of the Council, and
(ii) 75% of the costs of the second respondent of the proceedings in that Court incurred after 28 October 2005.
CATCHWORDS: ADMINISTRATIVE LAW – bias – distinction between acts of prejudgment and conflicts of interest – test for prejudgment – whether local councillors incapable of persuasion - ADMINISTRATIVE LAW – bias – test for reasonable apprehension of bias – differences in application of test to judicial and administrative decision-makers – statutory context of decision-making process – level of knowledge of fair-minded observer – whether local council acting as consent authority created reasonable apprehension of bias – whether conduct of council officer created reasonable apprehension of bias – whether councillors formed views after consideration of available information– Local Government Act 1983 (NSW) ss 8, 232, Chapter 7 – Environmental Planning and Assessment Act 1979 (NSW) s 79C - ADMINISTRATIVE LAW – procedural fairness – whether objector to development application entitled to procedural fairness - ADMINISTRATIVE LAW – validity of decision-making process – whether decision invalid if member of collegiate decision-making body tainted by apprehended bias – characteristics of collegiate decision-making bodies – “but for” test - COSTS – discretion to award – order as to costs in unresolved part of proceedings relating to previous development application – whether unsuccessful applicant pays two sets of costs – respondents joined in similar interest – where one respondent is decision-maker – Civil Procedure Act 2005 (NSW) ss 64(3), 98 – Courts Legislation Amendment Act 2007 (NSW) Schedule 6[28] – Land and Environment Court Act 1979 (NSW) s 58(3)(c) – Uniform Civil Procedure Rules 2005 (NSW) r 42.1, Schedule 6, cl 15 - LOCAL GOVERNMENT – building control – development applications – how development application must be made – whether substantial compliance with statutory requirements – whether irrelevant considerations taken into account – documents and information required for development application – requirements of development control plans – Environmental Planning and Assessment Act 1979 (NSW) s 78A, 79C – Environmental Planning and Assessment Regulation 2000 (NSW) cll 50, 51, Schedule 1, Part 1, cll 1, 2 - LOCAL GOVERNMENT – regulation and administration – powers, functions and duties of local council – whether decision by local council granting development consent invalidated by reason of apprehended bias – whether councillors formed views after consideration of available information – whether communications between councillors and agent of applicant created apprehension of bias – whether conduct of council officer created apprehension of bias – Local Government Act 1983 (NSW) ss 8, 232, Chapter 7 - STATUTORY INTERPRETATION – whether requirements for valid development applications mandatory – standard of compliance with statutory requirements – Environmental Planning and Assessment Act 1979 (NSW) s 78A – Environmental Planning and Assessment Regulation 2000 (NSW) cll 50, 51, Schedule 1, Part 1, cll 1, 2 - WORDS & PHRASES – “fair-minded observer” – “reasonable apprehension of bias” LEGISLATION CITED: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 6
Courts Legislation Amendment Act 2007 (NSW), Schedule 6 [28]
Civil Procedure Act 2005 (NSW), ss 10, 64, 98, Parts 3-9, Schedule 6, cll 15, 17
Environmental Planning and Assessment Act 1979 (NSW), ss 5, 77, 78A, 78C, 79C
Environmental Planning and Assessment Regulation 2000 (NSW), cll 50, 51, Schedule 1, Part 1, cl 2
Land and Environment Court Act 1979 (NSW) ss 58, 69
Local Government Act 1993 (NSW), s 8, 232
Local Government Act 1960 (WA), s 174
Uniform Civil Procedure Rules 2005 (NSW), r 42.1CATEGORY: Principal judgment CASES CITED: Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411
Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817
Botany Bay City Council v Remath Investments No. 6 Pty Ltd [2000] NSWCA 364; 50 NSWLR 312
Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Calvin v Carr [1980] AC 574; [1979] 1 NSWLR 1
Cooper v Wilson [1937] 2 KB 309
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135
Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; 150 LGERA 81
Craddock v Davidson [1929] St R Qd 328
Dickason v Edwards [1910] HCA 7; 10 CLR 243
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Ethell v Whalan [1971] 1 NSWLR 416
F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537; 158 LGERA 250
Frome United Breweries Company Ltd v County Borough of Bath [1926] AC 586
Helman v Byron Shire Council (1995) 87 LGERA 349
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438
IW v The City of Perth [1997] HCA 30; 191 CLR 1
John v Rees [1970] Ch 345
Johnson v Johnson [2000] HCA 48; 201 CLR 488
JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277
Kioa v West [1985] HCA 81; 159 CLR 550
Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70
Lane v Norman (1891) 66 LTS 83; (1891) 61 LJ Ch 149
Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288
Lynch v Hodges (1963) 4 FLR 348
Macsween v Fraser (1956) 1 FLR 10
Manion v Rankin (1914) 4 Tas LR 78
Meadowvale Stud Farm Ltd v Stratford County Council [1979] 1 NZLR 342
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507
Moore v Doyle (1969) 15 FLR 59
Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386
Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities) [1992] 1 SCR 623
Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Parramatta City Council v Hale (1982) 47 LGRA 319
Pipi Holdings Pty Ltd v Council of the City of Caloundra [2000] QSC 343; 111 LGERA 117
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13
The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; 122 CLR 546
The Queen v Corporation of the City of Marion; Ex parte Independent Grocers’ Co-operative Ltd (No. 2) (1984) 37 SASR 436
The Queen v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248
R v Amber Valley District Council; Ex parte Jackson [1985] 1 WLR 298
R v Goodhall [2007] VSCA 63; (2007) 15 VR 673
R v London County Council; Ex parte Akkersdyk & Fermenia [1892] 1 QB 190
R v Mullins; Ex parte Stenhouse (1971) Qd R 66
R v Optical Board of Registration; Ex parte Qurban [1933] SASR 1
R v Piccin [2001] NSWCCA 35
R v West Coast Council; Ex parte Strahan Motor Inn (1995) 4 Tas R 411
Re Gould; Re Australian Railways Union (1967) 87 CAR 939
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57
Re Refugee Review Tribunal; Ex part Aala [2000] HCA 57; 204 CLR 82
Ridge v Baldwin [1964] AC 40
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213
Scurr v Brisbane City Council [1973] HCA 39; 133 CLR 242
Short v Mackay (1951) 73 CAR 23
Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141
Steuart v Oliver (No 2) (1971) 18 FLR 83
Stollery v Greyhound Racing Control Board [1972] HCA 53; 128 CLR 509
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Thomas v Hayward (1907) 9 WALR 212
Vakauta v Kelly [1989] HCA 44; 167 CLR 568
Webb v The Queen [1994] HCA 30; 181 CLR 41
Zanatta v McCleary [1976] 1 NSWLR 231TEXTS CITED: Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) pp 457-458
Forbes, Justice in Tribunals, 2nd ed (2006) The Federation Press at [15.2]
Halsbury’s Laws of England (1989) vol 1(1), Administrative Law, 4th edPARTIES: David McGovern and Roslyn McGovern (Appellants)
Ku-ring-gai Council (First Respondent)
M Allan (Second Respondent)FILE NUMBER(S): CA 40103/07; 40114/08 COUNSEL: F M Douglas QC/K Connor SC/A J O’Brien (Appellants)
Dr J Griffiths SC/Ms M Allars (First Respondent)
P McEwan SC (Second Respondent)SOLICITORS: Bradfield & Scott (Appellants)
Deacons (First Respondent)
Harris Friedman Hyde Page (Second Respondent)
LOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): LEC 40607/05 LOWER COURT JUDICIAL OFFICER: Pain J LOWER COURT DATE OF DECISION: 20 February 2007; 11 February 2008 LOWER COURT MEDIUM NEUTRAL CITATION: McGovern v Ku-ring-gai Council [2007] NSWLEC 22;
McGovern v Ku-ring-gai Council (No. 2) [2008] NSWLEC 50
CA 40103/07
CA 40114/08
LEC 40607/051 September 2008SPIGELMAN CJ
BASTEN JA
CAMPBELL JA
Headnote
On 11 October 2005, Ku-ring-gai Council (“the Council”) granted consent by a 7-3 majority to a development application made by Mrs Allan for proposed additions and alterations to her property. The appellants, who were Mrs Allan’s neighbours, objected to the development application.
The appellants challenged the Council’s determination to grant consent to the application by way of class 4 proceedings in the Land and Environment Court. They sought a declaration that the development consent was invalid and consequential orders restraining the Council and Mrs Allan from taking steps to carry out the development. Pain J dismissed the appellants’ application in the Land and Environment Court on 20 February 2007. The appellants appealed from that decision.
Pain J reserved on the question of costs, which was the subject of further argument. On 11 February 2008, Pain J ordered the appellants to pay costs incurred by both the Council and Mrs Allan in the proceedings. The appellants sought leave to appeal from the costs orders.
The issues for determination on appeal were whether:
(i) the trial judge committed legal error in imposing too high a test of reasonable apprehension of bias;
(ii) the conduct of Councillors Ryan and Ebbeck created a reasonable apprehension of bias;
(iii) if so, that invalidated the Council’s decision;
(iv) there was a reasonable apprehension of bias on the part of a Council officer, Mr Miocic, who was responsible for a report recommending that the Council give consent to the development application;
(v) the development application failed to comply with statutory procedures; and
(vi) the Council failed to address relevant considerations and took into account irrelevant considerations.
The Court held, dismissing the appeal:
In relation to (i)
(per Spigelman CJ, Basten JA, Campbell JA agreeing)
1. The general approach to whether there is a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power: [9], [42], [72], [82]–[83], [113], [234]
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342; The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; 122 CLR 546; Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411, applied.
2. The test has a flexible quality depending upon the nature of the power, the character of the repository of the power and the circumstances in which the power comes to be exercised. Importantly, quite different standards operate in relation to local councillors as compared with judges: [7]–[8], [11], [71], [75], [77], [160], [234].
Kioa v West [1985] HCA 81; 159 CLR 550; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342; Webb v The Queen [1994] HCA 30; 181 CLR 41, applied.
3. The important question for present purposes is how the test operates in relation to a local government authority, constituted by elected councillors, which has a diversity of functions including the broadly political and those of an administrative decision-maker granting authority for specific developments, in accordance with statutory criteria: [5], [13], [75], [151], [234].
(per Spigelman CJ, Campbell JA agreeing)
4. The test for reasonable apprehension of bias by pre-judgment is whether an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion: [15], [20], [23], [236].
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70; The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; 122 CLR 546; Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170, applied.
F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537; (2007) 158 LGERA 250, disapproved.Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213, referred to.
5. Where a person’s involvement in the decision-making process can be characterised, in substance, as constituting him or her a party to the proceedings the issue is not one of “pre-judgment” but one of “conflict of interest”: [28]. Conflict of interest cases involve different considerations to pre-judgment cases: [25]–[26], [30], [39], [236].
6. The trial judge stated the test relating to reasonable apprehension of bias incorrectly by asking whether the decision-maker would, rather than might, not be impartial. There was appellable error; nevertheless, the conclusion her Honour came to was correct: [3], [236].
(per Basten JA)
7. In respect of councillors, the fair-minded observer would expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers: [80].
Kioa v West [1985] HCA 81; 159 CLR 550; Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57; Webb v The Queen [1994] HCA 30; 181 CLR 41, applied.
Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities) [1992] 1 SCR 623, distinguished.R v Amber Valley District Council; Ex parte Jackson [1985] 1 WLR 298, referred to.
8. Caution should be exercised in identifying legal error in the test used by the trial judge on a purely semantic basis. Her Honour’s comments were both expressly and implicitly directed to the circumstances before her: the proper test in relation to local councillors exercising powers as a consent authority. The approach her Honour adopted, rejecting the claimed apprehension of bias, was not erroneous in all the circumstances: [110], [115].
In relation to (ii)
(per Spigelman CJ, Campbell JA agreeing)
9. In the context of a multi-member elected decision-making body, there is no requirement that each of the decision-makers keep an “open mind” until every decision-maker is prepared to make a decision: [51], [56], [236].
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, applied.
10. The fact that Councillors Ryan and Ebbeck came to a conclusion that the application should be approved, prior to the final decision, and expressed themselves in strong terms did not of itself establish that they were not open to persuasion. Both formed their views after consideration of the information available to them, particularly the report by Council officers, and on direct observations: [49]–[50], [59], [236]. Neither Councillor took a step or made a statement that constituted a proper basis for a finding that they were not open to persuasion: [60]–[61], [236].
(per Basten JA)
11. The communications between Councillor Ebbeck and Mr Allan, and Councillor Ryan and Mr Allan did not demonstrate a fixed view on the Councillors’ part, not based on relevant material. The communications demonstrated that the Councillors were firm supporters of the application: [124], [127]–[128]. The Councillors did not effectively become advocates of the development application so as to indicate a reasonable apprehension of bias: [158], [161].
12. Mr Allan’s role as the vendor’s agent for a home purchased by Councillor Ryan did not demonstrate a basis on which to find a reasonable apprehension of bias on Councillor Ryan’s part: [162].
In relation to (iii)
(per Spigelman CJ)
13. If a member of a multi-member decision-making body was affected by apprehended bias, the consequences for the validity of the decision depends on whether the person reasonably suspected of pre-judgment decided the outcome: [31], [45]–[46].
IW v City of Perth [1997] HCA 30; 191 CLR 1; Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70, considered.
Dickason v Edwards [1910] HCA 7; 10 CLR 243; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; Stollery v Greyhound Racing Control Board [1972] HCA 53; 128 CLR 509; R v Piccin [2001] NSWCCA 35; R v West Coast Council; Ex parte The Strahan Motor Inn (1994) 4 Tas R 411; R v Goodhall [2007] VSCA 63; (2007) 15 VR 673; Cooper v Wilson [1937] 2 KB 309; R v London County Council; Ex parte Akkersdyk & Fermenia [1892] 1 QB 190; Frome United Breweries Company Ltd v County Borough of Bath [1926] AC 586, referred to.
14. Even if Councillors Ryan and Ebbeck had not voted, the result would have been the same. If either or both Councillors could be said to have predetermined the issue, and the apprehended bias principle applied to them, it could not be said that the principle applied to the Council itself. The “but for” test is not satisfied: [62].
(per Basten JA)
15. Where impropriety has been established, the courts will not inquire into its actual effect, if any, on the decision. Even though the votes of the two councillors alleged to have been partial were not decisive, if the Councillors were disqualified, their participation during deliberations and voting may have tainted the proceedings and vitiated the decision: [100], [103].
Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376; Dickason v Edwards [1910] HCA 7; 10 CLR 243; The Queen v Corporation of the City of Marion; Ex parte Independent Grocers’ Co-operative Ltd (No 2) (1984) 37 SASR 436; Parramatta City Council v Hale (1982) 47 LGRA 319, referred to.IW v City of Perth [1997] HCA 30; 191 CLR 1; Kioa v West [1985] HCA 81; Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141; Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1; Stollery v Greyhound Racing Control Board [1972] HCA 53; 128 CLR 509; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277; Pipi Holdings Pty Ltd v Council of the City of Caloundra [2000] QSC 343; 111 LGERA 117; R v West Coast Council; Ex parte The Strahan Motor Inn (1994) 4 Tas R 411; John v Rees [1970] Ch 345 at 402; Meadowvale Stud Farm Ltd v Stratford County Council [1979] 1 NZLR 342, considered.
In relation to (iv)
(per Basten JA, Spigelman CJ and Campbell JA agreeing)
16. The appellants did not establish that Mr Miocic had some personal benefit to be obtained from approval of the development application and that the staff report failed to deal with the appellants’ objections such that his behaviour demonstrated an apprehension of bias based on interest: [1], [168], [176], [183], [234]. Mr Miocic took steps to ensure that councillors were fully apprised of the circumstances of the application and sought to support the officer’s recommendation: [1], [179], [234].
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438, applied.
In relation to (v)
(per Basten JA, Spigelman CJ and Campbell JA agreeing)
17. Any failure of the development application to comply substantially with statutory requirements must be treated as non-compliance with a precondition to the power of Council to determine the application: [1], [184], [189], [234].
(per Basten JA, Spigelman CJ agreeing)
18. The terms of s 78A(9) of the Environmental Planning and Assessment Act 1979 (NSW) (“EP&A Act”), stating that regulations may specify “other things” to be submitted with a development application, are mandatory. In light of the language and context of s 78(9) and the Environmental Planning and Assessment Regulation 2000 (NSW) (“EP&A Regulation”), the only compulsory documents required with a development application are a site plan, a sketch of the development and a statement of environmental effects (Schedule 1, Part 1, cl 2): [1], [191], [195], [201].
Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; 150 LGERA 81, doubted.Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135; Scurr v Brisbane City Council [1973] HCA 39; 133 CLR 242; Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; 50 NSWLR 312; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Helman v Byron Shire Council (1995) 87 LGERA 349, applied.
(per Basten JA, Spigelman CJ and Campbell JA agreeing)
19. The development application was not invalid because it was not accompanied by a survey prepared by a registered surveyor, a heritage impact statement and a statement of environmental effects. The first two documents were not required by s 78(9) of the EP&A Act and cl 2 of Part 1 of Schedule 1 of the EP&A Regulation. The absence of the documents would not have invalidated the consent: [1], [203], [234].
20. The development consent was not invalid on the basis that the site plan was inadequate because it was only necessary that the plan substantially comply with a requirement that it “indicate” the matters referred to in cl 2(2) of Part 1 of Schedule 1 of the EP&A Regulation: [1], [195], [202], [234].
21. The Council’s guidelines did not create statutory preconditions to the exercise of power by the Council as a consent authority: [1], [201], [203], [234].
In relation to (vi)
(per Basten JA, Spigelman CJ and Campbell JA agreeing)
22. There is no statutory prohibition on members of a consent authority taking into account submissions from an interested member of the public relevant to the exercise of the authority’s powers: [1], [206], [234].
23. Mr Allan’s comments about the bona fides of the appellants and the lack of merit in their objections to the application were not irrelevant considerations: [1], [206]–[207], [234].
24. The Council’s staff report had regard to the applicable policy relating to “first floor decks, balconies and roof top terraces” in the Development Control Plan 38, as required by s 79C(1)(iii) of the EP&A Act: [1], [211]–[212], [234].
CA 40103/07
CA 40114/08
LEC 40607/051 September 2008SPIGELMAN CJ
BASTEN JA
CAMPBELL JA
1 SPIGELMAN CJ: In this matter I have read the judgment of Basten JA in draft. Subject to the following observations, I agree with his Honour’s analysis of the issues that arise in this case. I wish to express my own reasons on the apprehended bias case with respect to the two Councillors about whom the appellants contend the relevant apprehension exists.
2 The well-established test for apprehended bias applies, as Basten JA shows, not only to judicial decision-makers but also to statutory decision-makers. Subject to statutory modification or the doctrine of necessity, the test is applicable to consent authorities exercising powers under planning legislation, as has arisen in the present case.
3 In the present case, her Honour did state the test in an incorrect manner and did so on a number of occasions. It appears that she applied an incorrect test by asking whether the decision-maker would, rather than might, not be impartial. There was, in my opinion, appellable error. Nevertheless, the conclusion her Honour came to was correct.
4 Two distinct issues arise in this appeal and the appellant has to succeed on both. The first issue is whether it can be said that either of the two Councillors whose conduct is in question has committed what is generally referred to as an act of “pre-judgment” and, accordingly, that an independent observer might reasonably believe she and/or he might not have brought an impartial and unprejudiced mind to the decision-making process. The second and quite distinct, issue, even if the answer to the first question is yes, is whether the decision-making process is invalidated in circumstances where their votes were not essential to the final decision taken.
5 It must be kept in mind that the relevant bias which the independent observer might reasonably apprehend, is that of the Council as the statutory decision-maker, not that of individual Councillors. However, on the facts of this case, unless either or both Councillor Ryan and Councillor Ebbeck had committed pre-judgment, the Council as a whole could not be said to have done so.
The Statutory Context
6 Lawyers are, understandably, susceptible to approaching such issues, when they arise in the context of a statutory power, by treating judicial decision-making as some kind of paradigm, departures from which have to be explained or even justified by reason of the particular statutory power or decision-making body. In my view this is an incorrect approach. The case law on judicial decision-making is not a starting point when determining the application of the apprehended bias test in a specific statutory context. The statute must be part of the assessment from the outset and not treated as some kind of qualification of a prima facie approach.
7 How the apprehended bias test is applied is, as Basten JA indicates, affected by the statutory functions being performed and by the identity and nature of the decision-maker who is obliged by statute to perform those functions. The content of what the test requires varies from one context to another by a process involving, and usually determined by, statutory interpretation.
8 Each of the elements in the apprehension of bias principle requires a context specific approach which may, and usually will, differ from that appropriate for a judicial decision-making process.
9 In each case the Court must have an understanding, in the particular context of:
· What is the process involved in ‘resolving the question’ that the decision-maker “is required to decide”.
· What may constitute an absence of ‘impartiality’ or lack of ‘prejudice’ in the mind of the decision-maker?
· What might a “fair minded lay observer … reasonably apprehend” as to the above two matters.
10 These issues require a context specific approach, generally as a process of statutory interpretation. It is unnecessary to consider the longstanding debate as to whether the requirements of procedural fairness constitute a principle of the common law engrafted, subject to statutory modification, on the exercise of public power or whether the requirements emerge by reason of the proper interpretation of the statute conferring the power. On either basis an impartial and unprejudiced mind is required.
11 However, as Hayne J has put it, it is necessary to inquire “what kind or degree of neutrality (if any) is to be expected of the decision-maker” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [187]). That expectation will differ from one statutory context to another. As indicated above, the judicial paradigm is not universally applicable.
12 No doubt in most contexts an open mind must be regarded as a good thing. However, a mind that never shuts will generally be a public nuisance.
13 Of particular significance in the present case is that the relevant statutory power is vested in a democratically elected Council exercising a discretionary power expressed in broad terms to which multiple considerations apply and with respect to which the range of permissible opinion is extraordinarily wide – including issues of policy, taste and philosophy – not least by the adoption of an express formulation as to what constitutes “the public interest” (s 79C(1)(e) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”)).
What Constitutes Pre-judgment
14 Although the Australian test for apprehended bias, as expressed in terms of two “mights”, sets a low threshold, with respect to a pre-judgment case the identification of what constitutes a lack of ‘impartiality’ or of ‘prejudice’ in the mind of the decision-maker involves an issue of some specificity.
15 The test for pre-judgment in Australian law is, in my opinion, to the same effect as that identified by the Supreme Court of Canada in Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 where, in the terminology of the majority judgment: the decision-maker must be “capable of being persuaded” (at 1197c); pre-judgment is of such an “extent” that contrary representations “would be futile” (at 1197d-e); statements said to constitute pre-judgment must be an “expression of final opinion … which cannot be dislodged” (at 1197f); the position of the person must be “incapable of change” (at 1197g). The “incapable of persuasion” test was applied again in Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213 at 1224g.
16 A similar approach has been adopted in Australia on pre-judgment issues in Jia Legeng where, in the joint judgment of Gleeson CJ and Gummow J, their Honours referred to a test of whether the decision-maker “is open to persuasion” (at [71] and [105]), or whether the “conclusion already formed [is] incapable of alteration, whatever evidence or arguments may be presented” (at [72]).
17 To similar effect are the observations of Hayne J, namely, that a decision-maker will apply his or her opinion “without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case” (at [185]). His Honour went on to refer to the test terms of whether “the evidence will be disregarded” (at [186]).
18 Also to similar effect are the observations of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 that the decision-maker “will not alter that conclusion irrespective of the evidence or arguments presented”. In that case, members of the Tribunal had filed a defence which encompassed a pleading asserting the fact into which the Tribunal was to inquire. Their Honours concluded that that act was based on the evidence known to them at the time of the pleading. It was not appropriate to conclude that “the members of the Tribunal will not decide the case impartially when they hear the evidence and arguments … at the … inquiry” (at 101).
19 In F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537; (2007) 158 LGERA 250 Biscoe J referred to the relevant passage in the judgment of Sopinka J in Old St Boniface Residents Association and stated at [122] that this was a test of actual not of apprehended bias. His Honour also characterised the observations of Gleeson CJ and Gummow J in Jia Legeng at [71]-[72] as being a test of actual bias.
20 I do not agree. The Supreme Court of Canada was concerned with apprehended bias. It appears that the Canadian apprehended bias test differs – by asking whether the decision-makers would not be impartial, as distinct from might not be impartial. Nevertheless, Australian authority supports a similar concept of what constitutes pre-judgment.
21 Biscoe J’s reference to the judgment of Gleeson CJ and Gummow J in Jia Legeng at [71]-[72] was to that part of their Honours’ judgment concerned with the actual bias submissions. However, their Honours at [100] agreed with the reasoning of Hayne J on apprehended bias and went on at [105] to expressly apply an “open to persuasion” test for apprehended bias.
22 Furthermore, as the joint judgment of the High Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554, a “fair and unprejudiced” mind:
- “… is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”
23 The “open to persuasion” test is an appropriate formulation for bias by pre-judgment, to which the dual “might” test of apprehended bias must be applied; that is, that an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion.
24 As set out at [4]-[5] above, the first issue to be determined is whether either or both of Councillor Ryan or Councillor Ebbeck were not open to persuasion. The second issue is whether the decision-maker – in this case the Council as a collegiate body – can be characterised as not open to persuasion because one or two members are not open to persuasion.
Conflicts v Pre-judgment
25 Many of the authorities upon which the appellants rely are not cases of pre-judgment. It is important, in my opinion, to distinguish a conflict of interest case from a pre-judgment case. There are two relevant differences.
26 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.
27 Secondly, in my opinion, a different approach is appropriate when the vote or votes of the allegedly biased decision-maker(s) was not determinative. In a conflict of interest case it appears to me appropriate to conclude without further inquiry, that the statutory requirements of a valid decision-making process have not been complied with or that an adverse conclusion of what an independent observer might believe would more readily be drawn.
28 Many of the authorities upon which the appellants relied employed the language of pre-judgment but are, on their facts, cases in which one of the decision-makers has, as a matter of substance, placed himself or herself in the position of conflict of interest, indeed becoming a party to the decision-making process. Where a person’s involvement in the decision-making process can be characterised, in substance, as constituting him or her a party to the proceedings the issue is not, in my opinion, one of ‘pre-judgment’ but one of ‘conflict of interest’.
29 In Canada the basic authority is Old St Boniface Residents Association. In that case Sopinka J who delivered the judgment of the majority said at 1196:
- “I would distinguish between the case of partiality by reason of pre-judgment on the one hand and by reason of personal interest on the other. It is apparent from the facts of this case, for example, that some degree of pre-judgment is inherent in the role of a councillor. That is not the case in respect of interest. There is nothing inherent in the hybrid functions, political, legislative or otherwise, of municipal councillors that would make it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters in respect of which they have a personal or other interest … Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest.”
30 The present is a pre-judgment, not a conflict of interest, case. Authorities involving conflicts must be treated with care. Furthermore, as indicated above, authorities on judicial decision-makers must be treated with particular care.
The Multi-Member Decision-Maker
31 Even if either or both of the Councillors had pre-judged the issue and, accordingly, one or two members of the decision-making body was or were affected by apprehended bias, there remains the issue whether that affected the whole of the decision-making process. The actual decision-maker is the Council. The appellant contends that an impartial observer might reasonably assume a process of infection – the rotten apple in the barrel test. Such a conclusion is not necessary and must depend on the circumstances of the statutory regime and of the case. The independent observer in administrative law, like the ordinary reasonable reader in defamation law, is not avid for scandal.
32 As I have indicated above, the test for apprehended bias is applied more stringently in the case of judicial decision-makers. That also applies to jurors. However, even in the case of the jury, as a multi-member decision-maker, the rotten apple test is not automatically applied. The apprehended bias principle is the same (see Webb v The Queen (1994) 181 CLR 41 at 46-47, 53, 57, 68-69, 87-88). Nevertheless, the discharge of one juror, on the basis that s/he may not be impartial, does not necessarily require the discharge of the whole jury (see eg R v Goodhall [2007] VSCA 63; (2007) 15 VR 673 esp at [32]-[37]; R v Piccin [2001] NSWCCA 35 at [85]-[90]).
33 In this respect the appellants placed particular reliance on some observations of Gummow J in IW v The City of Perth (1997) 191 CLR 1, particularly where his Honour said at 50:
- “It has been said that a decision of a collegiate body may be successfully attacked for bias even where but one member was biased and that member was not one of the majority. This is on the footing that in bias cases the court does not enter into difficult evidentiary questions as to the extent to which that person may have influenced the majority.” (citation omitted)
34 These remarks were obiter. The issue there arose in a particular statutory context and his Honour referred to general principles of administrative law by way of analogy. Furthermore, this was a case in which, if the persons said to be biased had not participated in the decision-making process, then the challenged decision would not have had a majority.
35 It is noteworthy that the relevant sentence in his Honour’s remarks commence with the words “It has been said that …”. The footnote for this and the succeeding sentence is a reference to the Reissue of the 4th edition of Halsbury’s Laws of England (1989) vol 1(1), Administrative Law at [90]. This paragraph is repeated at [103] of the 2001 Reissue, published since the decision. The tentative nature of the proposition advanced by Gummow J is confirmed in this text which read and reads:
- “If one of the adjudicators has a direct personal interest in the issue, the proceedings will be set aside even though none of his fellow adjudicators was thus disqualified; and it appears that the same principle applies where one adjudicator is subject to disqualification for likelihood of bias. In such cases the court will not consider whether the disqualified person did in fact influence the decision.” (citations omitted)
36 The reference in Halsbury to “direct personal interest” suggests actual bias. The passage indicates, by use of the words “it appears”, that the position with respect to apprehended bias is by no means clear. Although the test for apprehended bias in England is different to that adopted in Australia – requiring probability rather than possibility – that difference does not appear to me to be material in this respect.
37 Most of the authorities referred to in the footnote to the passage in Halsbury are cases of judicial decision-making in a collegial context. The rotten apple principle is particularly appropriate with respect to judicial decision-making, where the historical significance of independence and impartiality (see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [3], [7]; Jia Legeng at [179]-[181]) creates requirements of a different order to those which arise in the exercise of statutory powers, especially by democratically elected decision-makers.
38 In the context of multi-member decision-making bodies that are not courts, or subject to the same stringent requirements as courts, a disqualifying conflict of interest of a character which the apprehended bias principle would require the person not to participate in, indeed not even be present at, the decision-making process has been held to exist where:
· The person is the complainant or accuser with respect to the matters the subject of inquiry (Dickason v Edwards (1910) 10 CLR 243; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509).
· The person formally opposed an application and made representations to the decision-making body of which s/he was a member, where those representations were required by statute to be taken into account (R v West Coast Council; Ex parte Strahan Motor Inn (1995) 4 Tas R 411).
· The person opposed the application and instructed a lawyer to appear at the hearing to argue against its acceptance (R v London County Council; Ex parte Akkersdyk & Fermenia [1892] 1 QB 190; Frome United Breweries Company Ltd v County Borough of Bath [1926] AC 586).
· The person otherwise becomes, in substance, a party to the proceedings (see eg Cooper v Wilson [1937] 2 KB 309 at 322-324, 344-345; West Coast Council at 427).
39 All of these cases appear to me to involve a conflict of interest, rather than pre-judgment. The conduct of the particular member(s) of the multi-member decision-maker went well beyond a manifestation that s/he was or they were not open to persuasion.
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. However, the pre-judgment situation is not necessarily, indeed not usually, of that character.
41 A person who has come to a firm opinion, albeit on a pre-judgment basis, but not to the degree to become a party in substance, will often seek to convince others to adopt his or her view. However, that does not imply that s/he will do so by other than rational and relevant argument. Questions of fact and degree are involved which make it difficult to apply a rotten apple test to a pre-judgment case, even on an apprehended bias basis.
42 In IW Gummow J referred to the policy basis of the relevant case law as being the desirability of avoiding judicial inquiry as to the actual influence of a particular individual in the decision-making process. His Honour’s approach appears to be consistent with the statement in Ebner at [7] to the effect that the test for apprehension of bias “requires no conclusion about what factors actually influenced the outcome”. This is inherent in the objective nature of the apprehended bias test: it only has to be reasonably possible that the decision-maker might not be impartial.
43 Nevertheless, there appears to me to be a tension between Gummow J’s statement in IW doubting any requirement to consider whether the “biased” decision-maker made a difference and the reliance placed on the particular influence, or lack thereof, of the “biased” public servant advising the Minister in Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 esp at [19]-[20], [25], [44], [46]-[47], [72]-[73].
44 Perhaps the tension is to be resolved by applying the observation in Ebner at [8] that:
- “The 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. Only then can the reasonableness of the asserted apprehension of bias be assessed.”
45 It is necessary to allow for special cases, for example, when a particular member of a collegial body has, or has had, particular influence on the other members. Except in such cases, a rotten apple test is not, in my opinion, the approach that an independent observer “might” reasonably adopt in the usual pre-judgment case. Rather a “but for” test should generally be applied, that is, the Court should ask whether or not the person(s) reasonably suspected of pre-judgment decided the outcome.
46 This approach does not call for an inquiry into “the extent to which that person may have influenced the majority”, to use Gummow J’s terminology. It will generally be sufficient just to count the votes. Further inquiry would only be called for on the part of the independent observer where there is clear reason for engaging in it. The purpose identified by Gummow J can be served by a simple “but for” rule, at least in the usual case of a collegial decision-making process.
47 This appears to have been the approach of Deane J in Laws at 92:
- “… If the Tribunal as a whole is affected by the actuality or the appearance of such prejudgment, the Tribunal will, subject to the possible operation of the doctrine of necessity, be precluded from embarking upon that proposed inquiry. If the Tribunal as a whole is not so affected but some of its members are, those members will, subject again to the possible operation of the rule of necessity, be disqualified.
- In most cases where a statutory tribunal can be validly constituted by some only of its members, the actuality or the appearance of disqualifying bias on the part of a particular member or particular members will affect those members only and will not taint the tribunal as a whole. If, for example, the actuality or appearance of bias on the part of a particular member or particular members results from a relationship or activities unconnected with membership of the relevant tribunal, there is not, without more, any reason in fairness, principle or common sense why the other members of that tribunal or the tribunal itself should be affected or disqualified. Even where the actuality or the appearance of bias on the part of a particular member or particular members has resulted from the discharge of the relevant tribunal’s functions, it will ordinarily be possible to say that neither the parties nor a fair-minded, informed lay observer would entertain a reasonable apprehension that the tribunal as a whole was affected by the disqualifying bias of a particular member or members. The circumstances of a particular case may, however, be such as to give rise to a reasonable apprehension that the relevant tribunal as an institution is affected by disqualifying bias. …”
48 I agree with this reasoning.
Conclusion
49 Basten JA sets out the relevant facts. Councillor Ryan and Councillor Ebbeck came to the conclusion that the application should be approved prior to the final decision. The fact that they did so, and expressed themselves in strong terms, however, does not of itself establish that they were not open to persuasion.
50 As Basten JA shows, each formed his or her opinion after consideration of relevant facts, particularly the report by Council officers. At the time that Councillor Ryan appeared to form her opinion there were some defects in the documentation – an erroneous impression in the site plan and the absence of a heritage report. Both of these defects were remedied in due course.
51 In the context of a multi-member elected decision-making body, there is no requirement that each of the decision-makers must keep an “open mind” until every decision-maker is prepared to make a decision. It is perfectly legitimate for one member of such a collegial body to make up his or her mind before others do so and, in accordance with a process of democratic decision-making, to seek to persuade other decision-makers to agree with his or her conclusion, if necessary by changing their minds.
52 Nothing in such a process, in my opinion, constitutes a proper or reasonable basis for an apprehension of bias for purposes of the application of the test. I agree with Basten JA that it is not a manifestation of pre-judgment bias to maintain a position that has been arrived at after due consideration.
53 In Ebner at [8], the joint judgment of Gleeson CJ and McHugh, Gummow and Hayne JJ, applied the traditional test by identifying a “first step” which their Honours expressed as requiring “identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”.
54 I accept that this formulation captures the pith and substance of the authoritative test requiring a decision-maker to have ‘an impartial and unprejudiced mind’. However, so expressed, it becomes clear that the test is not contravened if an individual decision-maker has reached a view after considering the “legal and factual merits”.
55 To similar effect is the explanation by Hayne J of the concept of bias for pre-judgment as “a deviation from the true course of decision-making” (Jia Legeng at [183]). There is no such deviation where one member of a collegial body considers the evidence and comes to a firm view in advance of other members and in advance of the final decision.
56 No doubt there will be circumstances in which a member of a collegial body will make up his or her mind and subsequent conduct may indicate that that has resulted in a denial of procedural fairness or a failure to take into account relevant considerations or some other basis for judicial review. The present case is, however, concerned with apprehended bias and I see no reason why, in a context such as the present, a decision-maker cannot make up his or her mind at a stage in the deliberative process which is well before the final decision, without being accused of bias on the apprehended bias test.
57 In a case where substantive new information became available and a person does not respond appropriately it may appear that that decision-maker was not open to persuasion and, therefore, there was a basis for applying the apprehended bias principle. Nothing like that happened here.
58 On the evidence, Councillors Ryan and Ebbeck were significantly influenced by the positive assessment on the part of Council officers. Each also visited the site. Over their objection, other Councillors sought and obtained a site meeting on the application. After they had made their support apparent, the other Councillors called for a heritage report which did not lead either to change his or her mind, nor the Council officers to change their recommendation.
59 During the course of the protracted deliberations, over four Council meetings, both Councillors communicated with the applicant for the development expressing their support. Both also attempted to persuade other Councillors to their point of view. I can see nothing wrong with this. Both had formed a view based on the information available to them and on direct observations.
60 Neither Councillor Ryan nor Councillor Ebbeck changed the views they had formed on the basis of their acceptance of the recommendation by Council officers. However, that is not evidence that either Councillor was not open to persuasion. Indeed, neither took a step or made a statement which constitutes, in my opinion, a proper basis for a finding that they were not open to persuasion. Before the final approval, each indicated that s/he had formed a firm view, but that is not enough. None of the evidence suggests that either Councillor had become so staunch an advocate that they were impervious to new information or argument.
61 Each told the applicant that they would support the development application, but only after they had an opportunity to assess the merits. Nothing they said was open to be interpreted as an indication that either would support the application irrespective of the merits. Nothing they said was open to the interpretation that they would not take new information into account or that they would not listen to other views. Nothing they said indicated that they would not have regard to the considerations required to be taken into account by s 79C of the EP&A Act.
62 Alternatively, even if Councillor Ryan and Councillor Ebbeck had not voted, the result would have been the same. If either or both could be said to have predetermined the issue, and the apprehended bias principle applied to them, it could not be said that the principle applied to the Council itself. The “but for” test, identified at [45] above as the relevant test in a bias by predetermination case, is not satisfied.
63 I agree with the orders proposed by Basten JA.
64 BASTEN JA:
Issues Legal principles: partiality of councillors Knowledge ascribed to fair-minded observer Application of principles to collegiate body Burden of establishing bias Alleged legal error Factual basis for allegations (a) General (b) Councillor Ebbeck (c) Councillor Ryan Proper role of councillors Bias of Council officer Failure to comply with statutory procedures (a) Statutory scheme (b) Application of principles Miscellaneous grounds (a) Breach of procedural fairness (b) Taking account of irrelevant considerations (c) Failure to take account of relevant considerations Costs of trial Costs of appeal Conclusions
Issues
65 On 11 October 2005 Ku-ring-gai Council (“the Council”) granted consent to a development application made by Mrs Marilena Allan for proposed additions and alterations to her property at 49 Telegraph Road, Pymble. The appellants, who were neighbours living at 51 Telegraph Road, objected to the development application and now seek to challenge the Council’s determination to grant consent to the application.
66 The initial challenge was by way of class 4 proceedings in the Land and Environment Court seeking a declaration that the development consent was invalid and a consequential order restraining the Council and Mrs Allan from taking steps to carry out the development.
67 The appellants were unsuccessful in the Land and Environment Court, Pain J dismissing their application by judgment delivered on 20 February 2007: McGovern v Ku-ring-gai Council [2007] NSWLEC 22. They appeal from that decision. Pain J reserved the question of costs, which were the subject of further argument, resulting in a second judgment on 11 February 2008, ordering the appellants to pay costs incurred by both the Council and Mrs Allan in the proceedings: McGovern v Ku-ring-gai Council (No. 2) [2008] NSWLEC 50. The appellants seek leave to appeal from the costs orders, on grounds which require consideration of the history of the proceedings.
68 So far as the main appeal is concerned, the allegations of invalidity now pursued turn primarily upon allegations of bias or a reasonable apprehension of bias on the part of the former Mayor and Deputy Mayor of the Council, Councillors Adrienne Ryan and Nick Ebbeck respectively, being two of the majority who voted in favour of the development on 11 October 2005. There is a further allegation of bias on the part of an officer of the Council, Mr Miocic, who was responsible for a report recommending that the Council give consent to the development application. Most of the numerous grounds of appeal are encompassed within these broad allegations.
69 There were also subsidiary complaints concerning failure to comply with statutory requirements and a separate set of allegations alleging procedural unfairness, failure on the part of the Council to address a relevant consideration and taking into account irrelevant considerations.
70 It is convenient to begin with the allegations relating to bias and reasonable apprehension of bias. This requires, first, identification of the relevant legal principles applicable to questions of partiality and prejudgment in relation to decision-making by a local government body acting as a consent authority for planning purposes and, secondly, an assessment of the factual material presented in the Land and Environment Court.
Legal principles: partiality of councillors
71 Absence of bias, including questions of partiality and prejudgment, whether actual or apparent, are part of the requirements of natural justice: see, eg, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [43] (Gleeson CJ and Hayne J). As such, they will be taken to apply to any exercise of public power unless clearly excluded, but will have a flexible quality depending upon such matters as the nature of the power, the character of the repository of the power and the circumstances in which the power comes to be exercised: see, eg, Kioa v West [1985] HCA 81; 159 CLR 550 at 612-613 (Brennan J). Acknowledging the need for flexibility tends to undermine the utility of a single ‘test’ for assessing, if not bias, at least reasonable apprehension of bias, which is the category most commonly relied upon. However the test is formulated, it must undoubtedly operate differentially with respect to judges and elected councillors, and with respect to conflicts of interest as compared with allegations of prejudgment: see, generally, the categories identified by Deane J in Webb v The Queen [1994] HCA 30; 181 CLR 41 at 74, namely interest, conduct, association and extraneous information.
72 There was no dispute in the present case that the general approach required to be applied is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power. As explained by Gleeson CJ and Gummow J (Hayne J agreeing) in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72]:
- “The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”
73 The test of actual bias is stringent: it is unlikely to arise in most cases, so long as the test of reasonable apprehension of bias assumes an informed fair-minded observer: see Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 87 (Mason CJ and Brennan J). That is because the test of apparent bias is set at a lower level: see also Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 293 and The Queen v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248 at 258-263 (Barwick CJ, Gibbs, Stephen and Mason JJ).
74 Apart from permitting a level of satisfaction below that of a probability, both in regard to the likelihood of the observer holding a particular belief and as to the likelihood of the decision-maker having a particular state of mind, one effect of this test is to remove an objective exercise in fact-finding from the court, so that the court is required to form a view as to the likely attitude of the fair-minded observer. For a reason which will become relevant in considering the operation of the test in relation to a collegiate decision-maker, this approach not only permits a margin for error, but also reduces the risk that the finding of the court may itself diminish the value which the principle is designed to promote, namely public confidence in the administration of justice: see Webb v The Queen at 52 (Mason CJ and McHugh J).
75 The important question for present purposes is how the test operates in relation to a local government authority, constituted by elected councillors, which has a diversity of functions including the broadly political (see Local Government Act 1993 (NSW), s 8) and those of an administrative decision-maker granting authority for specific developments, in accordance with statutory criteria, as in the present case. As the judgments of the High Court in Jia demonstrate, quite different standards will operate in relation to ministerial decision-making because of the need to take into account the particular role and functions of the decision-maker: see [78], [99]-[102] (Gleeson CJ and Gummow J); [125], [141]-[143] (Kirby J dissenting, but not on this point); [180]-[182], [187] (Hayne J); [244]-[245] (Callinan J). As explained by Hayne J:
- “[179] Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. No less importantly, the rules about judicial prejudgment proceed from the fundamental requirement that the judge is neutral. …
- [180] Decisions outside the courts are not attended by these features. Reference need only be made to a body like the Refugee Review Tribunal … to show that this is so. The procedures for decision-making by that body are much less formal than those of a court. There is no provision for any contradictor and the procedures are, therefore, not adversarial. … The decision-maker … will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up ‘expertise’ in matters such as country information. Often information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment.
- [181] The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm….”
76 After referring to a number of relevant factors, his Honour continued at [187]:
- “Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.”
77 There can be no doubt that the position of councillors sitting on a local government authority are far removed in the exercise of their functions from a judicial paradigm. In those circumstances, a significant degree of care must be taken in applying a test, the language of which is deemed appropriate both in respect of courts and in respect of elected administrative decision-makers.
78 In Laws, Mason CJ and Brennan J stated at 87:
- “In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case.”
79 There are three concepts which inhere in this proposition. The first concerns the general understanding which the fair-minded observer is deemed to have which would create or allay an apprehension of bias. In Laws, there was a question as to whether the fair-minded observer would understand the significance of the filing of a defence by members of a tribunal against whom proceedings for defamation had been brought. As Mahoney JA remarked in Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411 at 440, the fair-minded observer is generally taken to be mistaken because members of tribunals will rarely be biased in the ways attributed to them, as he or she might have appreciated, if fully appraised of the operation of a particular decision-maker. Thus, in Spedley Securities, Kirby P suggested that “care should be taken against attributing to the hypothetical reasonable observer a level of sophistication which may be enjoyed by judges and other lawyers (or by specially educated or informed citizens or even by the parties involved)”: at p 419, referring to Toohey J in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 585 and S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 375.
80 Whether familiarity with relevant processes breeds contempt or trust is not a matter which need detain the Court in this matter: there is no particular reason to suppose that members of the general public are any better or less well-informed than judges about the proper institutional role of local councils or how they operate in practice. The real question is what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect of a councillor dealing with a development application. The institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers.
81 The second issue raised with respect to the information ascribed to the fair-minded observer is the extent to which the views of the decision-maker as to the effect of discreditable information should also be attributed to the observer. In a case where the decision-maker has publicly identified that prejudicial material has been available, the observer would be entitled to take account of a statement that it has not affected the decision-maker’s approach to the decision, but need not be expected to accept the disclaimer: see, eg, Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342, 350-351, 356-357 (Mason J). In a case where the information is private, as between a councillor and a lobbyist, the actual representations made and the responses provided may be seen as “the actual circumstances of the case”, as referred to in Laws. However, it may be important not to take particular statements out of context. That may mean also taking into account contemporaneous statements by the decision-maker asserting that particular information had no influence on his or her decision.
82 The last proposition should be subject to a qualification, although one which did not arise in the present case. The fact that statements of the decision-maker may be used in this way does not mean that a party can necessarily require a decision-maker to reveal his or her processes of decision-making, nor invite an adverse inference to be drawn in circumstances where the decision-maker has not been forthcoming. The law with respect to bias, much of which has accumulated through cases considering the operations of courts and quasi-judicial tribunals, has developed a test of reasonable apprehension of bias which does not require either evidence as to actual causal connection between the prejudicial material or interest and the decision, nor any prediction about how the decision was in fact made: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ) and Zanatta v McCleary [1976] 1 NSWLR 231, 234 (Street CJ), 238-239 (Samuels JA). While a causal connection must be demonstrated (in a case involving conflict of interest) it is the capability to affect a decision, not the actual affectation, which must be established.
83 Thirdly, it must be borne in mind that the attribution of information to the fair-minded observer is for the purpose of deciding whether there is a real possibility that he or she would apprehend that the decision-maker might have a closed mind. Ultimately it is the affected party whose confidence in the system may be seen to be most nearly affected. Nevertheless, reference to the views which might be held by a party to a dispute will tend to weaken the objective nature of the test. Thus a party might have a particular belief about the proper decision, perhaps based upon a level of detailed information which should not properly be ascribed to the fair-minded observer. Nor is it necessary to consider whether a party would hold a reasonable apprehension in circumstances where others might not.
Application of principles to collegiate body
84 In so far as the grounds allege bias on the part of two particular councillors, a question arises as to whether establishing a reasonable apprehension of bias in respect of them is sufficient for the appellants to succeed in invalidating the decision of the Council. That decision was made by a 7-3 majority; the votes of the two councillors said to be tainted by a reasonable apprehension of bias were not arithmetically determinative. Nor was it argued that the Council would not have had a quorum if those two councillors had been disqualified from participation in the consideration of the application.
85 The appellants argued, in substance, that the number of the decision-making body who should properly have been disqualified did not matter; the presence of one was sufficient to taint the process and thus invalidate the resultant decision.
86 The appellants sought support for their position from the judgment of Gummow J in IW v City of Perth [1997] HCA 30; 191 CLR 1 at 46-51. IW did not involve judicial review of an administrative decision, but rather a challenge to the decision of a council in refusing a development application, on the basis of unlawful discrimination on the ground of impairment. The Perth City Council had refused planning approval for use of a building as a daytime drop-in centre for people who were HIV positive. The Equal Opportunity Tribunal (WA) had held that the refusal of planning approval was a refusal to provide services for the purposes of the Equal Opportunity Act 1984 (WA). The decision of the Council had been by a one vote majority, the Council having divided 13-12 against granting approval. The Tribunal was satisfied that the votes of five members of the majority were grounded on the “AIDS factor”. The decision was therefore held to be unlawful, a result overturned by the Full Court. On the further appeal, the High Court divided, the majority giving three separate judgments, being the joint judgments of Brennan CJ and McHugh J and Dawson and Gaudron JJ, with Gummow J writing separately. The dissenting members (who would have upheld the appeal) were Toohey J and Kirby J, each of whom wrote separately. The correct approach to the causation issue with respect to decision-making by the council was considered by Gummow J (obiter, his Honour having concluded that the appeal should be dismissed on other grounds) and by the dissenters, who needed to be satisfied that the appellant made good his case in this respect in order for the appeal to succeed.
87 Toohey J noted that the discriminatory ground did not need to be the dominant or substantial reason for doing the act, but it was sufficient that it was one ground on which the council reached its decision: at 31. His Honour continued:
- “It further follows that the particular issue is whether the discriminatory ground on which five of the thirteen Councillors resolved to refuse the application could be imputed to the Council and with what consequences. In disposing of this issue, three possible tests have emerged from the proceedings below. 1. The test adopted by the Tribunal and upheld by Murray J was that the ground of decision of any Councillor whose decision was causative, in the sense that ‘but for’ that decision approval would not have been refused, can be imputed to the Council. On this test, since there was a thirteen to twelve majority against approval, the vote of every Councillor in the majority was causative. … 2. The test favoured by Ipp J was that relevantly the ground of decision is the ground on which a majority of the voting Councillors made their decision. 3. The test favoured by Wallwork J was to look at the ground on which a majority of the majority Councillors made their decision. In the present case, presumably seven Councillors would have had to vote on an improper ground for that ground to be imputed to the Council. Scott J held that the complainants had been unable to identify the reasons for decision of the Council.”
88 Toohey J upheld the approach of Murray J and the Tribunal, namely that the vote of any one of the majority councillors was causative and therefore infected the decision: at 33. Gummow J came to a similar conclusion numerically, but on a different basis. After rejecting the analogy with directors of a company, his Honour found support in the law regulating the exercise of trustee powers. His Honour noted at 48:
- “In the absence of some other direction by statute, by a competent court, or by the terms of the will or settlement, where there is a plurality of trustees of a private trust all must join in the execution of the trust. If a power of appointment be vested in trustees or jointly in other appointors, an appointment in the exercise of the power may be fraudulent although only one of the appointors is infected with the fraud.”
89 His Honour did not place weight upon that analogy alone, as the distinction between trustees acting jointly and members of a council acting by majority would appear to diminish its force. Rather, his Honour moved to the separate proposition that the councillors held analogous positions which, while not rendering them subject to fiduciary duties to ratepayers, required that they not act for a purpose foreign to the power in question: at 49. Noting that a councillor was, by statute, disqualified from voting on matters in which he or she was interested (s 174 of the Local Government Act 1960 (WA)) he continued, at 50:
- “As a matter of general law, and even without particular provision such as that made by s 174, a decision made by such a body as the Council, one or more members of which are disqualified for bias, is liable to be set aside on administrative review.
- An exception may be provided by statute or by the operation of a principle of necessity. One example of the operation of the principle of necessity may be considered. It has been said that a decision of a collegiate body may be successfully attacked for bias even where but one member was biased and that member was not one of the majority. This is on the footing that in bias cases the court does not enter into difficult evidentiary questions as to the extent to which that person may have influenced the majority. However, where the body in question is the sole repository of a statutory power, an exception to such a stringent rule may be necessary to enable it to function.”
90 Kirby J adopted an approach similar to that of Toohey J, purely as a matter of purposive construction of the Act, and “not because of a doctrine of company law or administrative law”: at 66. His Honour thus had nothing to say on the question of bias in administrative law.
91 The approach of Gummow J may be seen to obtain some support from the decision of Mahon J in the New Zealand Supreme Court (as the High Court was called until 1979) in Meadowvale Stud Farm Ltd v Stratford County Council [1979] 1 NZLR 342. That case involved an application by the owner of a pig farm for a licence to boil down carcases. A dairy company which operated a milk powder factory on adjacent land objected. The applicant contended that five members of the council should not have considered his application as one of them was a director and all five were shareholders in the dairy company. The council voted 11-1 in favour of granting the licence, but imposed a condition prohibiting boiling down dead livestock, thus rendering the licence entirely nugatory from the point of view of the applicant. (The dissenter would presumably have refused the licence.)
92 Mahon J was satisfied that “neither the applicant nor any independent observer could have had any real confidence in the outcome of the ultimate Council meeting, seeing that five members out of 12 on the Council were shareholders in the objecting company, and that one of the five was a director of that company, and that the declared purpose of the company was to close the pig farm down”: at 348 (50). However, his Honour also considered the contention that the decision would have been the same even if the disqualified councillors had been excluded from deciding the application because a majority, or possibly the whole of the council, opposed the application on the terms sought by the applicant: at 349(50). After referring to the judgment of Megarry J in John v Rees [1970] Ch 345 at 402, his Honour continued at 350(15):
- “No one can safely say what the decision on this application might have been had it been determined by the seven Councillors who were not shareholders in the dairy company. I think the point too obvious to require further discussion. The well-springs of collective thought are far too mysterious, I fear, to justify any speculation of the kind proposed.”
93 This approach was in conformity with that adopted generally in relation to procedural fairness. As explained by Megarry J in John v Rees at 402:
- “It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious’, they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”
225 The next question is the appropriate order to be made with respect to the remainder of the proceedings in the Land and Environment Court. The appellants were unsuccessful in that Court and have been unsuccessful on appeal. The complaints made with respect to the conduct of the respondents do no warrant a departure from the usual order, namely that costs should follow the event.
226 There is a separate issue, however, as to whether the appellants should pay the costs of both respondents in the Land and Environment Court (and in this Court). There is no doubt that both parties were properly joined in the proceedings; however, they had a community of interest on the primary point, which was maintaining the validity of the second consent. As noted above, comments in the joint judgment in Oshlack raise a question as to whether it is appropriate for the Council to be an active opponent of proceedings, where it is the consent authority and may need to reconsider a decision under challenge. A possible result is that, if it plays an inappropriate role, even on the successful side of the record, it may not obtain its costs of the proceedings. However, this was not a usual case. The major part of the challenge mounted by the appellants was to the conduct of two councillors and at least one Council officer. Although a complaint of reasonable apprehension of bias does not necessarily involve any suggestion of improper conduct on the part of a decision-maker, it is clear that the manner in which the claims were formulated in the present case did. Accordingly, this was a case in which it was appropriate for the Council to take an active role in defence of its councillors and officers.
227 The Council further argued that the Hardiman principle could not properly apply because the need to maintain the appearance of impartiality could not arise where the proceedings themselves alleged partiality. A submission in those terms should not be accepted: it could equally be argued that the Council should not, in successfully defending its officers, create an apprehension of partiality in circumstances where it successfully demonstrated that there had been none. It is preferable to consider the appropriate role of Council by reference to the specific circumstances, as noted above.
228 Nevertheless, because the Council had a legitimate role to play, does not mean that it should necessarily receive its costs, or all of them. Despite Mr Allan’s assertions to the contrary in his emails, it was the proponent of the development who had the real interest in maintaining the validity of the consent and not the consent authority.
229 In the circumstances of the case, there has been no demonstration that, to the extent that the respondents had differing interests, those interests were in conflict. Accordingly, although they could not be compelled to employ the same legal representatives, the costs payable by the appellants should not exceed the amount which would have been payable had that happened. What that figure might be is largely speculative, without knowing the extent to which responsibility for the conduct of the proceedings may in a practical sense have been divided between the respondents. The appropriate course is to require that the appellants pay 75% of the costs of the proponent of the development (the second respondent) and 25% of the costs of the Council.
Costs of appeal
230 The impression obtained from the written and oral submissions on the appeal was that the bulk of the resistance was provided by the Council. That arrangement may have allowed the second respondent to reduce her costs, but it was not necessarily an appropriate division of responsibility in accordance with the respective legal interests of the second respondent and the Council. In principle, the same order should be made with respect to the costs of the appeal as that with respect to the costs of the trial. The appellants should pay 75% of the second respondent’s costs of the appeal and 25% of the costs incurred by the Council. How that calculation will work out is not known, but it is recognised that the actual amounts payable to each party may be closer to 50% of the total costs to be received if, as appears, the Council’s costs are higher than the second respondent’s costs of the appeal.
231 There remains a question as to the costs of the application for leave to appeal in relation to the costs judgment.
232 The appellants have had a significant degree of success in regard to the application for leave to appeal, although not complete success. The exercise of discretionary power having apparently miscarried, on a matter of significance, the case was an appropriate one for a grant of leave to appeal, in circumstances where the Court was otherwise apprised of the substance of the issues litigated below. Further, the appellants have been successful on the costs appeal to the extent of limiting their liability to costs incurred after 28 October 2005 and in limiting the overall costs payable to a proportion only of the costs of the respective respondents. The appellants should obtain an order for 75% of their costs of the leave proceedings and consequent appeal, payable as to 50% by the Council and 25% by the second respondent, being a reflection of the apparent division of responsibility between the respondents in resisting the leave application and the underlying appeal.
233 I would propose the following orders:
(1) In proceedings no. 40103 of 2007:
- (a) dismiss the appeal;
- (b) order the appellants to pay 75% of the second respondent’s costs of the appeal and 25% of the Council’s costs of the appeal.
(2) In proceedings no. 40114 of 2008:
- (a) grant the applicants leave to appeal and direct that the notice of appeal be filed within seven days;
(b) in respect of the appeal, set aside the orders made by Pain J in the Land and Environment Court on 11 February 2008 and in lieu thereof order that the applicants pay:
- (i) 25% of the costs of the Council, and
(ii) 75% of the costs of the second respondent
of the proceedings in that Court incurred after 28 October 2005.
- (c) order that the respondents pay 75% of the appellants’ costs of the proceedings in this Court, in the following proportions, namely 50% payable by the Council and 25% payable by the second respondent.
234 CAMPBELL JA: Subject to three qualifications, I agree with the reasons of Basten JA.
235 The first is that I do not join in the implicit criticism of the decision in Cranky Rock Road (paras [189]-[200] above).
236 The second is that I agree with Spigelman CJ that the trial judge stated the wrong test for apprehended bias, though came to the conclusion that comes from applying the correct test.
237 The third is that I would prefer to decide the case on the basis of assuming, rather than deciding, that if the two councillors in question met the legal test for reasonable apprehension of bias, the decision of the Council would thereby be vitiated. My reasons for making the third of these qualifications are as follows.
238 There have been numerous decisions holding, concerning a variety of different types of collective bodies, that disqualification of one member vitiates a decision of the body. For instance, Forbes, Justice in Tribunals, 2nd ed (2006) The Federation Press at [15.2] says:
- “If one sitting member of a tribunal is biased, the tribunal is disqualified: R v Suffolk Justices (1852) 18 QB 416; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; Huxham v Trustees and Executives Committee of the Incapacitated and Wounded Sailors’ and Soldiers’ Association of Queensland [1947] St R Qd 69; Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601 at 631; Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376 at 385. The law recognises the possibility that other members were affected by their colleague’s actual or apparent inability to be fair: R v Cheltenham Commissioners (1841) 1 QB 467; 113 ER 1121; Hannam v Bradford Corporation [1970] 2 All ER 690. One member with a closed mind may have a disproportionate influence on the group and his or her presence is enough to raise a reasonable suspicion … that the others are prejudiced too. But distinguish a case in which one member of a panel from which the current tribunal is chosen is biased, but does not sit on the case in question. Those who do take part in the hearing are not disqualified by the bias of their absent colleague; ( Laws v Australian Broadcasting Tribunal (1990) 64 ALJR 412. But see the opinion of Deane J in that case …) there is then no presumption that he or she influenced the result: Re Colina; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545. (A claim of apprehended bias was dismissed when a critic of the Family Court, charged with contempt, claimed that the judge hearing the charge was biased because the chief judge of the court had made a strong public attack on critics of the court, particularly those who publicly demonstrated against it.) However, if there is evidence of intervention by the person, the tribunal will, after all, be disqualified, as the university committee was in Re Macquarie University; Ex Parte Ong (1989) 17 NSWLR 113. The Vice-Chancellor, who was actually biased against Dr Ong, did not exercise her right to sit on the tribunal, but privately made damaging statements about him to her colleagues.”
239 To the cases mentioned by Forbes could be added Craddock v Davidson [1929] St R Qd 328 (president of a union participated in committee decision that rejected the nomination of the plaintiff for the position of president in an election, with the result that the election was declared void), Thomas v Hayward (1907) 9 WALR 212 (member of the committee of Turf club had a professional relationship with a person who came before the committee, sufficient to create a reasonable apprehension of bias – committee decision void), R v Mullins; ex parte Stenhouse (1971) Qd R 66 (decision of the Fire Brigade Appeal Board relating to the suspension and termination of the employment of a particular worker void when one member with apparent bias had sat on the Board), Manion v Rankin (1914) 4 Tas LR 78 (decision by committee of trotting club on appeal from the stewards invalid when the committee included some of the stewards, two of whom were present and took part in the deliberations of the committee, and conveyed information and evidence to the members of the committee in the absence of the person affected by the decision), R v Optical Board of Registration; ex parte Qurban [1933] SASR 1 (members of licensing board who had been active in gathering evidence against the accused not entitled to sit – prohibition granted), and Macsween v Fraser (1956) 1 FLR 10 at 14 (disciplinary decision by an internal tribunal of a union vitiated if a person who is not qualified to be a member of the tribunal sits as a member of it).
240 Outside the field of tribunals, in Lane v Norman (1891) 66 LTS 83; (1891) 61 LJ Ch 149, North J held that where, at a meeting of the trustees of charity, a person who was not entitled to be present participated in the discussion, that was sufficient to avoid the decision. North J said, at 86: “He took part in the discussion, and of course it is impossible to say what effect his views may have had upon the minds of the other persons who were present.”
241 It could well be argued that these decisions have a bearing on the present case, even if some of them did not directly concern a person who was the subject of a reasonable apprehension of bias, because being the subject of a reasonable apprehension of bias was merely one variety of the ways in which a person might be disentitled from participating in a corporate decision.
242 However, the case-law does not say unanimously that disqualification of one member of a collective body vitiates a decision of that body. Concerning the internal affairs of unions, it has been decided that participation by an unqualified person in a decision does not necessarily vitiate the decision. In Lynch v Hodges (1963) 4 FLR 348 in the Commonwealth Industrial Court Spicer CJ and Joske J at 350 regarded Macsween as applying in relation to proceedings before a domestic tribunal for suspension of a member in which the principles of natural justice must be observed, but reserved the more general consideration of whether active participation of a stranger at a meeting vitiates all proceedings of such a meeting. Dunphy J at 351 regarded Macsween as authority for an even narrower proposition –
- “that when strangers completely dominate and control the union meeting to the extent and degree evidenced in Short v Mackay the whole of the proceedings are invalid and it is also authority for the claim that the presence of a stranger at a union meeting who actively participates in its deliberations and decisions to the extent of moving a motion, which is ultimately carried, vitiates that particular motion at least particularly if the mover has a personal interest in the result.”
243 Steuart v Oliver (No 2) (1971) 18 FLR 83 concerned whether a union election that had been conducted in accordance with a special rule was invalid, when the rule in question had been made in 1968 by the Executive Council of the union, with the participation of people who were not entitled to be members of that Executive Council. The Commonwealth Industrial Court held that the rule was valid, and consequently the election was valid.
244 That decision needs to be understood against a historical background that is not mentioned in it, but of which all litigants and the Court itself would have been acutely aware. Moore v Doyle (1969) 15 FLR 59 held that a federal union and its State “branches” were different corporate entities. That decision had the consequence that the affairs of very many organs of Australian unions had been conducted for decades by procedures in which people had participated who were not entitled to participate. Holding that mere participation by an unauthorised person in a decision, (of whatever nature) made by a collective or collegiate body (of whatever nature) invalidated that decision would have caused even greater disruption in the administration of the affairs of Australian unions than the decision in Moore v Doyle itself was sufficient to cause. The times called for courts dealing with the fallout from Moore v Doyle to take care that their decisions on matters of the validity of internal union procedures were expressed in terms no wider than was called for by the particular case. It was in that context that Joske J (with whom Spicer CJ and Smithers J agreed) said, at 84-85:
- “There is no general rule that where a person who is not a member of a body, whether this is due to disqualification or lack of qualification or otherwise, is present at a meeting of the body, participates in its proceedings or even votes, this necessarily invalidates either the vote or the whole of the proceedings at the meeting. The circumstances of each particular case have to be considered. Thus the presence of so many unqualified persons at, and their participation in, a meeting may be such that a court would hold that it could not be regarded as a meeting of the particular body. So also, where the presence of the unqualified person is relied upon to constitute a quorum and unless he is counted the meeting is short of a quorum, there is no quorum and no meeting or, in other words, the proceedings at the meeting, if it is held, are ineffectual. The presence of a quorum means a quorum competent to transact and vote upon the business before the meeting. If some of those present are disqualified from voting and there is not otherwise a quorum, no business can be validly done. (See Re Greymouth Point Elizabeth Railway and Coal Co Ltd [1904] 1 Ch 32; In re Alma Spinning Co (1880) 16 Ch D 681; Newhaven Local Board v Newhaven School Board (1885) 30 Ch D 350; Old Welshman's Reef Gold Mining Co (NL) v Bucirde (1881) 7 VLR (Eq.) 115.)”
245 His Honour recognized that the decisions of the Court of Conciliation and Arbitration in Short v Mackay (1951) 73 CAR 23 and Re Gould; Re Australian Railways Union (1967) 87 CAR 939 provided some support for the proposition that mere participation in a decision of an unqualified person was sufficient to vitiate that decision. He concluded, at 87:
- “The judgment of Kelly CJ in Short v Mackay was in summary terms and too much cannot be made out of the expression "it was also invalid on account of the presence of the persons named who had no right to be present". The judgment of Dunphy J in Lynch v Hodges (1963) 4 FLR 348 shows that Gould's case misinterprets Short v Mackay and that Gould's case , therefore, cannot be regarded as authority for such a general proposition as this that the mere presence of persons who have no right to be present at a meeting thereupon makes the meeting invalid.”
246 At 87–88 Joske J explained Lane v Norman as follows:
- “The principle that where a disqualified person votes a resolution is invalid appears to apply to all cases where a body is acting in a quasi-judicial capacity in the sense of having legal authority to determine questions affecting the rights of citizens and of having the duty to act judicially. ( R v Hendon Rural District Council [1933] 2 KB 696.) It does not appear to have been taken further than this. An examination of Lane v Norman (1891) 61 LJ Ch 149 shows that it depends on this principle. It is one of a group of cases to the effect that a schoolmaster of an endowed school being an officer of a charity, the right to dismiss him is subject to the trust deed regulating the charity and to the general rule of law that when judicial authority is exercised against any person the principles of natural justice apply. Thus, where three vicars were empowered to dismiss a master, he was entitled to a hearing before all three of them ( Fisher v Jackson [1891] 2 Ch 84).”
247 Joske J’s conclusion at 88 concerning the case before him was:
- “The alteration to the rules of an organization is not an act of a judicial nature and consequently rules governing such acts do not apply to such alteration. This being so and the rules of the organization with regard to the meeting of the Executive Council having been obeyed, the presence and participation in the meeting of unauthorized persons did not render invalid the special rule which the meeting passed.”
248 In Ethell v Whalan [1971] 1 NSWLR 416 Hope J held that the expulsion of a member from the union was invalid in circumstances where people who were not members of the Executive took part in the decision to expel him. His Honour says, at 423:
- “If a stranger does in fact participate in the decision made upon the charge, then that decision will be invalid: Macsween v Fraser (1956) 1 FLR 10; Lane v Norman (1891) 61 LJ Ch 149 ; Steuart v Oliver (No. 1) (1971) 17 FLR 99; and Steuart v Oliver (No. 2) [(1971) 18 FLR 83].”
249 In light of the actual reasons for decision in Steuart v Oliver (No 2), that Hope J said he was applying, his Honour’s remark should be read bearing in mind that “the charge” in question was one of knowingly disobeying a decision of the Conference of the Federation, concerning which expulsion from the union was sought. The remark could not safely be taken as applying to all decisions of a collective body on any topic.
250 (I note that the decision in Ethell was disapproved in part, concerning the ability of a denial of natural justice at first instance to be cured on appeal, in the Privy Council decision in Calvin v Carr [1980] AC 574; [1979] 1 NSWLR 1 but Calvin did not mention the aspect of Ethell that is of present relevance.)
251 When the present standing of Steuart v Oliver (No 2) has not been the subject of argument in this case, I would prefer to neither adopt, nor reject, a proposition that participation of a disqualified person in the decision of a collective body vitiates that decision.
252 There is another reason for taking that same stance. It arises from the place occupied in the structure of judicial concepts by the rule that a decision by a decision-maker concerning whom there is a reasonable apprehension of bias is void. That rule has traditionally been seen as one manifestation of natural justice, summed up by the slogan that no-one should be judge in his or her own cause; M Aronson, et al, Judicial Review of Administrative Action 3rd ed (2004) Lawbook Co at 370-371; JRS Forbes, Justice in Tribunals, 2nd ed (2006) The Federation Press at [15.1]. The rule continues to be seen as part of natural justice, eg Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72]. Many of the cases referred to at paras [238] and [239] above that have held that participation in a decision of a collective body by someone who for one reason or another was not eligible to participate vitiates the decision have relied in their reasoning on the body in question having a “duty to act judicially”. However, since Ridge v Baldwin [1964] AC 40 there has been a retreat from using the notion of a duty to act judicially as the basis of duty to act in accordance with natural justice.
253 A duty to act in accordance with natural justice is now seen as equated with a duty to accord procedural fairness. Two different views have been put forward concerning the present basis in Australia of a duty to accord procedural fairness. The view of Mason J is that there is “a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention”: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584. By contrast Brennan J puts the basis of a duty to accord procedural fairness in implied legislative intent (Kioa at 609–611), and does not accord a role to legitimate expectation (Kioa at 611, 617-618). Neither view has yet achieved clear dominance. (The subsequent history is traced in M Aronson et al, op cit, at 384-410). When the basis upon which broad statements in cases such as those cited in paras [238] and [239] above were made has now fallen into conceptual disfavour, and a new basis is still not authoritatively settled, the statements themselves need to be approached with caution if one is contemplating using them outside the specific factual context in which they were made.
254 I agree with the orders proposed by Basten JA.
23/10/2008 - Typographical error - deleted "be", 5th word, 2nd last sentence. - Paragraph(s) 127 05/11/2008 - Change the word "second" to read "third" in last sentence of paragraph. - Paragraph(s) 237
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