Mike George Planning Pty Ltd v Woollahra Municipal Council

[2013] NSWLEC 57

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mike George Planning Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 57

Hearing dates:

29 April 2013

Decision date:

29 April 2013

Jurisdiction:

Class 1

Before:

Craig J

Decision:

1. I recuse myself from further hearing of this appeal.

2. I give leave to the parties to approach the Registrar forthwith to obtain a new hearing date.

Catchwords:

PRACTICE AND PROCEDURE - application for recusal - past professional association with client of appellant - former client owner of premises in question - application granted

Legislation Cited:

Land and Environment Court Act 1979

Category:

Procedural and other rulings

Parties:

Mike George Planning Pty Limited (Appellant)
Woollahra Municipal Council (Respondent)

Representation:

M Sahade (Appellant)
P R Rigg (solicitor) (Respondent)
Oliveri Lawyers (Appellant)
Norton Rose Australia (Respondent)

File Number(s):

10005 of 2013

EX TEMPORE Judgment

1. Listed before me today is an appeal brought pursuant to the provisions of s 56A of the Land and Environment Court Act 1979, appealing from a decision of a Commissioner of the Court on a question of law. As the title to the proceedings indicates, the appellant in this appeal is a company known as Mike George Planning Pty Limited, Mr George being a town planning consultant who obviously commenced the appeal on behalf of a client.

1. Mr M Sahade, who appeared for the appellant, made an application at the commencement of the hearing that I recuse myself on the basis of apprehended bias. The matters pertaining to that application can shortly be stated.

1. Some time prior to my appointment to the Bench in March 2010 I was briefed as counsel on behalf of Mr Anthony Sahade in proceedings then pending before this Court. Those proceedings involved a dispute with Woollahra Council, the respondent to the present appeal. Prior to the completion of those proceedings my brief to appear on behalf of Mr A Sahade was withdrawn following upon advice that I had given resulting in disagreement with Mr A Sahade and his then instructing solicitor.

1. The matter that was the subject of proceedings in which I was briefed as counsel did not involve the property that is the subject of the present appeal. Nonetheless, the return of my brief in the earlier matter is said to have occurred in circumstances described on behalf of Mr A Sahade as being acrimonious. I have no recollection that that was the case, but I certainly do accept that the brief was returned by me prior to the litigation in question being resolved.

1. The judgment that is the subject of the present appeal, which I have read in preparation for the hearing today, gives no indication that Mr A Sahade has any involvement with the property in question. However, I am told from the bar table and I accept that an owner of the property or at least part of it, is Mr Sahade's wife or relative. In that circumstance it is put to me that I should recuse myself on the basis of apprehended bias as it may be seen, given my past professional association with Mr A Sahade, and the circumstance in which that association came to an end, would give rise to concern that I would not bring to bear upon the matter the appropriate dispassionate consideration.

1. The relevant test to be applied is that I should accede to such an application if a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to bear upon the resolution of the issues in dispute. Although I am somewhat reluctant to accede to the application, I think a proper and correct application of the principle to the circumstances briefly outlined above requires that I do so. I therefore accede to the application for recusal.

1. I have, in the brief adjournment that I have taken to consider my position, made enquiries as to the Court's list today and regrettably find that there is no other judge available to hear this matter. Accordingly, it is necessary that I give leave to the parties to approach the Registrar forthwith to obtain a new hearing date.

1. The orders that I make therefore are these:

1. I recuse myself from further hearing of this appeal.

2. I give leave to the parties to approach the Registrar forthwith to obtain a new hearing date.

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