Minister for Infrastructure and Planning v Conway

CITATION:	Minister for Infrastructure and Planning -v- Conway [2004] NSWADT 68
DIVISION:	General Division
PARTIES:	APPLICANT Minister for Infrastructure and Planning RESPONDENT Bradley Conway
FILE NUMBER:	033215
HEARING DATES:	25/02/2004
SUBMISSIONS CLOSED:	03/19/2004
DATE OF DECISION:	04/08/2004
BEFORE:	Hennessy N - Magistrate (Deputy President); Wren G - Non Judicial Member
APPLICATION:	Bias - Costs - Jurisdiction
MATTER FOR DECISION:	Preliminary mattters
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Veterinary Surgeons Act 1986
CASES CITED:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 Gelderman -v- Veterinary Surgeons Investigating Committee (VSIC) (GD) [2001] NSWADTAP 27 Burton v Anderson, unreported (Court of Appeal, CA 40030/92, 28 October 1994) Vakauta v Kelly (1988) 13 NSWLR 502 R v Lilydale Deputy Presidents' Court, ex party Ciccone [1073] VR 122 Mangoplah Pastoral Company Pty Ltd -v- Great Southern Energy (No. 2) [2000] NSWADT 4 Bank of NSW v Commonwealth (1948) 76 CLR 1 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 36 Mills v Meeking (1990) 91 ALR 16 Murray v Legal Services Commissioner [1999] 46 NSWLR 224
REPRESENTATION:	APPLICANT M Leeming, barrister RESPONDENT P McEwen SC with J Whyte, barristers
ORDERS:	1. Application for disqualification on ground of apprehended bias is dismissed; 2. Application for costs by Minister for Infrastructure and Planning is dismissed; 3. Both Mr Conway's applications in relation to restrictions on the Tribunal's jurisdiction are dismissed.

REASONS FOR DECISION

Introduction

1 This is an application by Bradley Conway, the respondent in the substantive proceedings, for me to disqualify the presiding member, Deputy President Nancy Hennessy, from hearing this case on the ground of apprehended bias. As Mr Conway’s legal representatives also raised two jurisdictional issues, the parties agreed that if the bias application was dismissed the Tribunal should go on to determine the jurisdictional issues “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

2 Under s 109Z(3) of the Environmental Planning and Assessment Act 1979 (the EP & A Act) the Minster for Infrastructure and Planning (the Minister) has instituted proceedings against Mr Conway with respect to a complaint made against him in his capacity as an accredited certifier. If the Tribunal finds that Mr Conway is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make one or more disciplinary orders against him. The terms “unsatisfactory professional conduct” and “professional misconduct” are defined in 109R. Professional misconduct is unsatisfactory professional conduct, which is serious enough to justify suspension or withdrawal of the accredited certifier’s accreditation.

Evidence of apprehended bias

3 Mr Conway gave evidence that in September or October 2003, he attended a Directions Hearing with his then solicitor, Mr Kim Lovegrove. Mr Conway said that he recalled that Mr Lovegrove was addressing the Bench about a case involving the Immigration Department on the issue of procedural fairness. He then recalls that I said words to the effect of:

We want to run the case. It…