Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council

Murlan Consulting Pty Ltd (Murlan) appealed to the Court of Appeal of New South Wales against a decision of Pain J in the Land and Environment Court. The dispute concerned an application by Murlan to set aside an earlier decision of the Land and Environment Court on the grounds of apprehended bias. The alleged bias arose from the professional and research-related collaboration between the Acting Commissioner of the Land and Environment Court, who had made the original decision, and the respondent, Ku-Ring-Gai Municipal Council.

The primary legal issues before the Court of Appeal were whether the Acting Commissioner’s association with the Council was such as to give rise to a reasonable apprehension of bias, and consequently, whether the original decision was vitiated by such bias and could be set aside. The Court was also required to consider whether the appeal involved an erroneous decision on a question of law by the Court below, and if so, whether the matter should be remitted for redetermination.

The Court of Appeal found that while the Acting Commissioner had no direct pecuniary interest, the extent of his professional and research collaboration with the Council was significant enough to create a reasonable apprehension of bias in the mind of a fair-minded lay observer. The Court applied the established legal principle that a decision affected by apprehended bias is invalid. Consequently, the Court determined that Pain J had erred in law by failing to make an evaluative judgment on the correct legal principle regarding apprehended bias. As more than one conclusion was reasonably open on the facts, the Court ordered that the orders made by Pain J be set aside and the matter be remitted for determination by the Land and Environment Court.