Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council - [2008] NSWLEC 318

Pending Appeal:

Land and Environment Court

of New South Wales

CITATION: Murlan Consulting Pty Limited v Ku-Ring-Gai Municipal Council and Anor [2008] NSWLEC 318

PARTIES:
APPLICANT
Murlan Consulting Pty Limited
FIRST RESPONDENT
Ku-Ring-Gai Municipal Council
SECOND RESPONDENT
John Williams Neighbourhood Group Inc

FILE NUMBER(S): 11193 of 2006

CORAM: Pain J

KEY ISSUES:
Bias :- whether reasonable apprehension of bias by acting commissioner - whether apprehension of bias because of financial interest and/or association
Practice and Procedure :- whether Court has jurisdiction to hear motion to set aside perfected orders based on reasonable apprehension of bias under Uniform Civil Procedure Rules 2005 r 36.15

LEGISLATION CITED: Land and Environment Court Act 1979
Migration Act 1958 (Cth)
Threatened Species Conservation Act 1995
Uniform Civil Procedure Rules 2005 r 36.15

CASES CITED: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215
Bienstein v Bienstein (2003) 195 ALR 225
British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109
Cameron v Cole (1944) 68 CLR 571
Eaton v Overland (2001) 67 ALD 671; [2001] FCA 1834
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fleet v Royal Society for the Prevention of Cruelty to Animals NSW & Ors [2008] NSWCA 227
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45
Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438
Re JRL; Ex parte CJL (1986) 161 CLR 342
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
McGovern v Ku-ring-gai Council [2008] NSWCA 209
Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Murlan Consulting Pty Limited v Ku-Ring-Gai Council [2007] NSWLEC 374
Najjar v Haines (1991) 25 NSWLR 224
Re Polites; Ex parte the Hoyts Corporation Pty Limited (1991) 173 CLR 78
Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260
R v Cavit; ex parte Rosenfield (1985) 73 FLR 385
R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Angliss Group (1968) 122 CLR 546
S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Taylor v Lawrence [2003] QB 528
Thellusson v Lord Rendlesham (1859) 7 HL Cas 429; 11 ER 172
Webb v The Queen (1993) 181 CLR 41
Willoughby City Council v Transport Infrastructure Development Corporation [2008] NSWLEC 231

DATES OF HEARING: 17 November 2008 and 18 November 2008

DATE OF JUDGMENT:
4 December 2008

LEGAL REPRESENTATIVES: APPLICANT
Mr M Pembroke SC with Mr A Bouris
SOLICITORS
Mallesons Stephen Jaques

FIRST RESPONDENT
Dr J Griffiths SC with Ms M Allars
SOLICITORS
Deacons
SECOND RESPONDENT
Mr P Ibbotson (solicitor, submitting appearance)
SOLICITORS
Blake Dawson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

4 December 2008

11193 of 2006 Murlan Consulting Pty Limited v Ku-Ring-Gai Municipal Council and Anor
JUDGMENT

1 Her Honour: In Murlan Consulting Pty Limited v Ku-Ring-Gai Council [2007] NSWLEC 374 Watts C and Taylor AC dismissed the Applicant’s Class 1 appeal on 26 June 2007. A subsequent s 56A appeal was dismissed by me on 29 October 2007. Final orders for both proceedings have been made and perfected. The Applicant has filed a Notice of Motion dated 28 August 2008 seeking various orders including that the orders be set aside. The Second Respondent has filed a submitting appearance save as to costs.

2 The Applicant filed in Court a Re-Amended Notice of Motion dated 18 November 2008 in the course of the hearing which seeks:

1. That the Orders made by Commissioner Watts and (Acting) Commissioner Taylor on 26 June 2007, and the Orders made by Pain J on 29 October 2007, be set aside pursuant to:

(a) this Court’s incidental or implied power to do so; and
(b) Uniform Civil Procedure Rule 36.15(1)

2. To the extent necessary, if at all, leave be granted to the applicant to re-open this proceeding.

…

7. That the costs of the hearing before Commissioner Watts and (Acting) Commissioner Taylor be costs in the cause.

…

Orders 4-6 were not pressed.

Applicant’s Third Further Amended Grounds of Appeal

3 Ground 11 of the Applicant’s Third Further Amended Grounds of Appeal filed in Court during the hearing on 18 November 2008 identifies the substance of the matters relied on in support of the orders sought in the Notice of Motion.

The decision of the Commissioners is vitiated in law and is a “nullity” (in the sense used in

(1944) 68 CLR 571) in that the Applicant was denied procedural fairness by reason of a reasonable apprehension of bias in relation to Acting Commissioner Taylor:

(a) having a financial interest in the outcome of the proceedings by reason that:

(b) Having an association with the First Respondent and officers of the First Respondent as follows:

(i) the Applicant repeats ground 11(a);
(ii) Dr. Taylor was a member of the First Respondent’s Bushland Catchments and Natural Areas Reference Committee from about June 2004 until on or about 2 April, 2007. That Committee’s charter required it to provide expert advice and feedback to the First Respondent on matters relevant to Bushland, Catchment Management and Natural Areas. The protection of the Blue Gum High Forest formed part of the subject matter of that process and was an issue which was directly involved in the Applicant’s development proposal;
(iii) Dr. Taylor was a member of the First Respondent’s Small Community Grants Committee from on or about 18 October, 2005 until on or about 5 August, 2008. This Committee dealt with applications for funding and made recommendation to the First Respondent concerning those applications;
(iv) In the period 2005-2006, Dr. Taylor co-authored four papers with Council officers, including two papers with Mr. Peter Davies, who was at all relevant times, Manager, Corporate Planning & Sustainability with the First Respondent, and with Mr. David Wilks, Manager, Biodiversity, who reported to Mr. Davies and who was involved in the assessment of the subject development proposal on behalf of the First Respondent;
(v) Dr. Taylor gave support and assistance to the First Respondent in preparation of the First Respondent’s riparian policy in or about December 2004;
(vi) Dr. Taylor assisted the First Respondent in 2005-2006 to develop a measure for biodiversity in the First Respondent’s municipal area (involving both Macquarie and Monash Universities);
(vii) The First Respondent provided Dr. Taylor with general support, including logistical support and assistance, for the preparation of papers by Dr. Taylor;
(viii) In or about March 2007, Dr. Taylor and Ms. Findlay received the First Respondent’s Mayoral Award for Outstanding Service to the Ku-ring-gai Community;
(ix) Mr. Wilks was involved in co-supervising students at Macquarie University the University of New South Wales and the TAFE system with Dr Taylor (letter at annexure A affidavit of D Townsend dated 12 November 2008)
(x) While the hearing was adjourned after the first 3 days of hearing, Dr Taylor attended a conference in Albury over the period 21-25 May 2007 at which he presented a paper co-authored (amongst others) by Mr Peter Davies. In addition, another paper, co-authored by Mr Christopher Ives, Dr Taylor and Mr Davies was presented at that conference.

4 At issue in the merit hearing before the Commissioners was whether the Applicant’s proposed development at 35 Water Street, Wahroonga and 64 Billyard Avenue, Wahroonga (the site) was acceptable. The Commissioners held it was not because of the heritage significance of a building proposed to be partially restored (Rippon Grange), the presence of Blue Gum High Forest (BGHF) on the site which was a threatened species under the Threatened Species Conservation Act 1995 (the TSC Act) and the fact the proposed buildings would be too large and too close to a heritage item. They dismissed the appeal.

Evidence

5 Ms Debra Townsend, solicitor for the Applicant, swore affidavits dated 18 August, 8 October and 12 November 2008, read in part and over objection. In her first affidavit she described her discovery on 11 August 2008 of Dr Taylor’s affiliations with the Council following his appointment as a full-time commissioner. Annexed to that affidavit were results of internet searches, which identified various papers authored by Dr Taylor in association with Council staff members. Ms Townsend stated Dr Taylor had not, to her knowledge, disclosed his relationship with the Council prior to or during the original hearing, both on site and in Court, nor in the judgment of 26 June 2007. The Council likewise had made no disclosure to Ms Townsend.

6 Ms Townsend annexed to her affidavit of 8 October 2008 two folders of documents retrieved from further internet searches. The documents include, inter alia, documents disclosing Dr Taylor’s past affiliations with the Council as member of the Ku-Ring-Gai Council Bushland, Catchments and Natural Areas Reference Group (BCNARG, 2004-2007) and the Ku-Ring-Gai Council Small Community Grants Committee (SCGC 2006-2008). Minutes of various meetings of the BCNARG, some of which were attended by Dr Taylor, and references to presentations made to Council by committee members were included. The documents referred to Dr Taylor’s academic position at Macquarie University, the obtaining of funding from the Council and his assistance to Council staff preparing papers on riparian policy. Dr Taylor also received funding from the Council for reports prepared in relation to riparian matters in Ku-Ring-Gai and was awarded the Ku-Ring-Gai Council Mayoral Award for “Outstanding Service to the Ku-Ring-Gai Community” for his work in river systems.

7 Ms Townsend’s affidavit dated 12 November 2008, read in part, annexed a letter from David Wilks, ecologist and former employee of the Council, to a solicitor of the Applicant dated 12 September 2008. The letter summarised Mr Wilks’ past dealings with Dr Taylor including collaboration on projects, supervising post-graduate university students in ecological research projects, co-authoring papers along with students and other Council staff that focused on environmental solutions helping Council manage its natural resources, and occasional mutual attendance of steering committee meetings concerning various issues. Dr Taylor occasionally provided advice to the Council in relation to studies carried out in collaboration with Council. Mr Wilks also stated that he was present at the Class 1 hearing but nothing was discussed with Dr Taylor at that time.

8 Further documents found in an internet search were attached to an affidavit of Steven Dejong, solicitor, dated 13 November 2008. Amongst these were references to two presentations and papers co-authored by Dr Taylor along with Christopher Ives (from Macquarie University), Peter Davies, Sophia Findlay and David Wilks (from the Council) and Ian Wright (from the University of Western Sydney) in relation to riparian zones in Ku-Ring-Gai.

9 A voluminous bundle of documents was also tendered by the Applicant which included, inter alia: various correspondence between Dr Taylor and members of the Council, including Peter Davies, dating from 2005 to 2007; an application form for funding in 2008 from the Australian Research Council from Dr Taylor of Macquarie University and others from the University of Technology; Dr Taylor’s application form to become a member of BCNARG, dated 28 July 2004; Dr Taylor’s fifth round application for the Council small grants scheme, closing date in December 2007; minutes of various BCNARG and meetings and reports to Council from BCNARG dating from 2004 to 2005 and minutes of ordinary Council meetings from 2006 to 2007.

10 A Council memorandum from Mr Wilks (dated 20 November 2006) in relation to the proposed development and the Final Draft Ku-Ring-Gai Bushland Reserves Plan of Management & Final Draft Biodiversity Strategy (dated May 2006) were also tendered separately by the Applicant.

Chronology

11 The Second Further Amended Chronology identifies the following events relevant to the Applicant’s arguments and is based on the extensive bundles of documents tendered by the Applicant (which I do not therefore intend to further summarise particularly as there is no factual dispute about the evidence):

June 2004 Mark Taylor appointed as a member of Ku-ring-gai Council’s Bushland, Catchments and Natural Areas Reference Group (“BCNARG”)

18 October 2004 Inaugural meeting of BCNARG. Mark Taylor in attendance. General discussion at the meeting regarding the potential for Blue Gum High Forest to be rezoned (7C) conservation

29 November 2004 Meeting of BCNARG. Mark Taylor in attendance

December 2004 Council’s Riparian Policy published; the involvement of Mark Taylor acknowledged

2004-2005 Papers co-authored by Mark Taylor and Council officers (Davies and Wilks)

21 February 2005 Meeting of BCNARG. Mark Taylor in attendance;
Discussion by BCNARG of the proposed Bushland Plan of Management (refer to p 81 of exhibit B)

9 May 2005 Meeting of BCNARG. Mark Taylor in attendance

20 June 2005 Meeting of BCNARG. Mark Taylor not in attendance;
Discussion by BCNARG of the Council’s Biodiversity Strategy, including the question of “Development - where, to what extent” (refer to pp 94, 95, 98 of the exhibit B);
Discussion by BCNARG of the proposed Bushland Plan of Management (refer to pp 95, 98 of the exhibit B)

15 August 2005 Meeting of BCNARG. Mark Taylor in attendance;
Discussion by BCNARG of the proposed Bushland Plan of Management, including discussion of the following issues:
· “the need for a (sic) introductory statement in the Plan that clearly emphasises enhancement of biodiversity and retention of vegetation communities as core objectives”;
· “recognising the value of bushland areas that are connected and fragmented”; and
· “how to manage the cumulative and site impacts of development … on bushland” (refer to p 101 of the exhibit B)

18 October 2005 Mark Taylor appointed as a member of Ku-ring-gai Council’s Small Community Grants Committee (“SCGC”)

21 November 2005 Meeting of BCNARG. Mark Taylor in attendance;
Discussion by BCNARG of the Bushland Plan of Management;
Discussion by BCNARG of the Biodiversity Strategy (refer to pp 115, 116 of the exhibit B)

late 2005 - early 2006 Mark Taylor, in his capacity as academic employee of Macquarie University, receives funding in the amount of $23,000 from the Council

2005-2006 Ku-ring-gai Council project to develop a measure for biodiversity involving Mark Taylor

8 February 2006 Meeting of SCGC. Mark Taylor in attendance

20 February 2006 Meeting of BCNARG. Mark Taylor in attendance;
Discussion by BCNARG of the Bushland Plan of Management;
Discussion by BCNARG of the Biodiversity Strategy (refer to pgs. 68, 79 of DJT2)

3 April 2006 Meeting of BCNARG. Mark Taylor not in attendance;
Discussion by BCNARG of the Bushland Plan of Management;
Discussion by BCNARG of the Biodiversity Strategy (refer to pp 82, 101 of exhibit A, vol 1)

May 2006 Macquarie University receives $3,500 under Ku-ring-gai Council’s Small Community Grants Scheme for a project coordinated by Mark Taylor

15 May 2006 Report to Council dated 15 May 2006 with the following recommendation:
“that Council adopt the Bushland Plan of Management in accordance with Section 36 of the Local Government Act 1993 and Biodiversity Strategy” (refer to p 1 of exhibit D)

23 May 2006 Council resolves to adopt the Bushland Plan of Management Strategy;
Council resolves to adopt the Biodiversity Strategy (refer to p 84 of the Minutes of Council, behind tab 35 in exhibit B)

4 August 2006 Development Application no. 855/06 lodged with Ku-ring-gai Council

14 August 2006 Meeting of BCNARG. Mark Taylor in attendance;
Mark Taylor gives presentation to BCNARG entitled, “An evaluation of the ecological condition and biodiversity value of urban riparian environments in Ku-ring-gai, Sydney”;
Nancy Pallin gives presentation to BCNARG entitled, “Blue Gum High Forest Ecological Community: Core Precincts and Connectivity in Ku-ring-gai”. Ms. Pallin’s presentation expressly identifies the land the subject of the Murlan DA (refer to pp 192, 193 of exhibit A vol 1);
Presentation to BCNARG by Ku-ring-gai Council staff, introduced by Peter Davies. Presentation refers to projects undertaken in collaboration with Mark Taylor (refer pp 217, 218 of exhibit A vol 1)

16 October 2006 Meeting of BCNARG. Mark Taylor in attendance;
Discussion by BCNARG of the Council’s draft Bushland Encroachment Policy (refer to pp 226, 227 of exhibit A vol 1);
Mark Taylor supported by Council as a nominee to the Hawkesbury Nepean CMA/LGMA meeting (refer to p 227 of exhibit A vol 1)

12 December 2006 Council refuses DA no. 855/06

12 December 2006 Appeal filed in Class 1 jurisdiction of the Land and Environment Court

7 February 2007 Mark Taylor commences a 12 month tenure as an Acting Commissioner of the Land and Environment Court

19 February 2007 Meeting of BCNARG. Mark Taylor in attendance;
Discussion by BCNARG of the Biodiversity Strategy; minutes note Mark Taylor’s contributions to the discussion (refer to pp 227, 293 of exhibit A vol 1)

13 March 2007 Council resolves to adopt Bushland Encroachment Policy (refer to p 5 of Minutes of Council behind tab 37 in exhibit B)

19 March 2007 Macquarie University Science News publication congratulates Mark Taylor for receipt of the ‘Ku-ring-gai Council Mayoral Award for Outstanding Service to the Ku-ring-gai Community’

2 April 2007 Meeting of BCNARG at which Mark Taylor resigns as member of the BCNARG

2 May 2007 The Council contributes, or agrees to contribute, the amount of $18,000 over 3 years, together with in kind support of $48,500 over the same period, towards an ARC Linkage research grant for which Mark Taylor was an applicant

30 April 2007,
1 May 2007,
2 May 2007,
28 May 2007, and
30 May 2007
Class 1 Appeal heard by Commissioner Watts and Acting Commissioner Taylor

21-25 May 2007 Mark Taylor attends the 5th Australian Stream Management Conference, at which he presented a paper co-authored (amongst others) by Peter Davies of the Council;
An additional paper co-authored (amongst others) by Mark Taylor and Peter Davies was presented at the Conference

26 June 2007 Decision of Commissioner Watts and Acting Commissioner Taylor in Class 1 Appeal delivered

26 June 2007 Appeal filed with the Court by the Applicant under section 56A of the Land and Environment Court Act 1979

25 July 2007 Orders of Commissioners entered

18 October 2007 Section 56A Appeal heard by Pain J

29 October 2007 Decision in section 56A Appeal delivered. Orders on appeal entered

Applicant’s submissions
(i) jurisdiction

12 The proceedings have been commenced by Notice of Motion in the original Class 1 proceedings seeking an order that the Commissioners’ orders be set aside as they have been made irregularly, as provided for by Uniform Civil Procedure Rules 2005 (UCPR) r 36.15(1). This is the procedure identified by Sheller JA in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28 – 30 and is available as part of the Court’s original jurisdiction to set aside orders made irregularly. A failure to comply with the rules of procedural fairness can give rise to irregularity within the ambit of r 36.15: Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38 per Spigelman at [85]:

It is axiomatic that when a statutory power like s 601AH(2) is conferred on a court, the legislature intends that procedural fairness will be accorded to all who may be affected by the order, unless there is a clear statement to the contrary. The denial of procedural fairness by a court is a “fundamental irregularity” which would entitle a person aggrieved to set aside an order as a matter of unconditional right. (See

supra at 591;

(1979) 143 CLR 1 at 16.) The exercise of the discretion under r 36.15 must be similarly clear cut.

13 There is no case considering the operation of r 36.15 in these circumstances but Spigelman CJ’s finding must apply equally to the second limb of the requirement of procedural fairness that the decision-maker will be free of bias (and have the appearance of being free of bias). This proposition was accepted by the Council.

(ii) whether apprehension of bias

14 The Applicant does not assert actual bias by Dr Taylor. It argues there was a reasonable apprehension of bias on the part of Dr Taylor in favour of the Council. Decisions of commissioners are decisions of the Court, s 30, s 33(1), s 36 and s 56A of the Land and Environment CourtAct 1979 (the Court Act). The principles applying to judicial officers apply equally to commissioners. The principle is articulated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344. According to Brereton J in British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [94] the “might/might” test is relatively undemanding.

15 The matter is objectively determined without regard to how the judicial officer will approach the matter, requires no conclusion about what factors influenced the outcome of the case, nor need there be any inquiry into the actual thought processes of the judge; see Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 77 per Gummow, Hayne and Crennan JJ.

16 The Applicant relies on four matters arising between the Council and Dr Taylor to suggest there is a pecuniary interest which could give rise to an apprehension of bias. (These are set out in some detail in par 3, grounds 11(a)(i), (iii), (iv) and (v) of the Third Further Amended Grounds of Appeal and all but one are referred to in the extensive chronology. The details are confirmed by the extensive documentation filed in the proceedings). It is accepted that Dr Taylor did not directly receive any money personally from the Council. The Council through the funding of collaborative research projects acted as his patron and these projects were used by him to further his career as an academic at Macquarie University.

17 In relation to association, in addition to the pecuniary interest already referred to, the following matters are relied on:

18 It is the totality of all these interactions as well as the individual interactions which are relied on to satisfy the relevant test of apprehension of bias. As summarised by the Applicant, as at 26 June 2007, the date of the orders dismissing the Class 1 appeal made by Watts C and Taylor AC, Dr Taylor:

(a) had ceased, as at April 2007, to be a member of BCNARG, of which he had been a member since about July 2004;

(b) remained a member of SCGC until August 2008;

(c) had received a benefit of funding to Macquarie University (together with Robert Stokes of that university) by reason of a decision of the SCGC (in which he took no part);

(d) had co-authored one paper with a Council employee presented at Launceston as early as 2004 and subsequently three other papers had been co-authored as at June 2007. Council provided financial assistance and general support, as acknowledged in a number of papers. In 2004 at the time of the Launceston paper, Mr Davies was apparently not an employee of the Council but part of the Department of Physical Geography at Macquarie University, of which Dr Taylor was also a member. This makes both Mr Davies and Mr Wilks former academic colleagues of Dr Taylor who both went on to join the Council;

(e) in addition, had done the research and project work to which reference is made in the statement of grounds of appeal.

19 While Dr Taylor’s membership of BCNARG had ceased at the time of the hearing given the role of that Group in assisting in the Council’s policy development processes an apprehension of bias might arise. It did not make decisions which directed action by the Council as the process was more complex. The role of BCNARG was to:

(i) receive advance copies of Council policy documents and draft plans

(ii) receive briefs from Council staff in relation to biodiversity strategy updates

(iii) send comments of members of the committee to the Council

(iv) discuss issues regarding the bushland on the same day as the presentation by Nancy Palin on Blue Gum High Forest (BGHF)

(v) discuss issues with the Council staff such as the bushland plan of management

(vi) receive submissions from the public

20 The role meant the BCNARG influenced Council decision-making in relation to the development of the Biodiversity Strategy and the Bushland Plan of Management. Both policies were potentially relevant to the consideration of BGHF.

21 As the judicial officer in the Class 1 proceedings, Dr Taylor had to consider the issue of protection of BGHF on the development site yet he was part of the process of policy formulation on the protection of BGHF as a member of BCNARG. A reasonable bystander would be inclined to consider that Dr Taylor was more likely to decide in favour of protection of BGHF because of his association with the Council. Dr Taylor was acting as a consultant to the Council whereby he was retained in an honorary position to assist in formulating its policy. There are similarities to the facts in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 at 222 where Merkel J held:

There must be something in the nature or the extent of the association which leads that bystander to conclude, whether for friendship, love, money, fear, favour or otherwise, that the adjudicator might be influenced by it. Where the association in question is trivial, remote or indirect, the courts might conclude that it is not a disqualifying one.

22 In relation to his membership of the SCGC, the hope or expectation of further grants by Dr Taylor should be seen as a real and not remote possibility. The circumstances in R v Cavit; ex parte Rosenfield (1985) 73 FLR 385 and Najjar v Haines (1991) 25 NSWLR 224 support these arguments.

23 All the facts of an association between the judicial officer and the relevant party are to be considered as part of the examination of the proximity, duration, intensity, nature and likely incidence of the connection between the judicial officer and that party; S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 372-373 per Kirby P. The numerous interactions giving rise to association suggest that there was a real and not remote possibility of the questions before Dr Taylor not being decided on their merits so far as his judgment was concerned. Dr Taylor can be reasonably apprehended as predisposed to support and uphold the interests of the Council.

24 The principles of natural justice and procedural fairness were considered in Taylor v Lawrence [2003] QB 528 where the test applied was would the circumstances lead a fair-minded and informed observer to conclude there was a real possibility of bias. The trial judge had informed the parties he had obtained legal advice from the solicitors of one party. There was no objection taken to his hearing the matter. Subsequently the defendants leaned that the judge did not pay for the legal services and they applied to re-open the appeal on the ground that an apprehension of bias arose. The application was dismissed.

25 Cases which consider apprehension of bias emphasise that the professional experience of the judge and his or her oath of judicial office mean that a reasonable bystander who is presumed to have some awareness of the judicial role will be aware of the professional and ethical obligations of a judge and can weigh that in considering whether there is an apprehension of bias. This is lacking in Dr Taylor’s case.

Council’s submissions
(i) jurisdiction

26 There is no jurisdiction in the Court to entertain this application under r 36.15 of the UCPR. As orders in the s 56A appeal have been perfected there is no basis for the Court to consider this motion because the Applicant’s appeal rights have been exhausted and the relevant order dismissing the appeal perfected; see Fleet v Royal Society for the Prevention of Cruelty to Animals NSW & Ors [2008] NSWCA 227 at [59] where the Court of Appeal held that the power under r 36.15(1) is invoked as a stand alone source of power to set aside a judgment in an application to a first instance judge. That appeal right has been exhausted by virtue of the s 56A appeal. Further there is no inherent jurisdiction in the Court to set aside perfected orders.

(ii) whether apprehension of bias

27 The common law test of apprehended bias turns in this case on whether there was an appearance of prejudgment on the part of Taylor AC (McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [25] – [30] per Spigelman CJ). Proper consideration of the question whether acquaintance with, or preconceived views about, a matter might give rise to an apprehension of bias on the part of a fair-minded observer, requires consideration of the different standards applying to administrative decision-makers compared with judicial officers; Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 at [50] and [70]; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 90 per Deane J; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [63] and [176].

28 An administrative decision-maker does not have to be free from prior involvement in a decision; see also Eaton v Overland (2001) 67 ALD 671; [2001] FCA 1834, where Allsop J at [232] held that an officer in disciplinary proceedings was not required to lack preconceived views entirely and did not have to come to the matter entirely neutral. In Laws v Australian Broadcasting Tribunal Deane J said at 90:

… acquaintanceship with or preconceived views about a party of a kind which would create the appearance of disqualifying bias in a judge exercising the judicial power of a court of law may be permissible and unobjectionable in a statutory body which, while required to accord procedural fairness in the discharge of a particular function, is entrusted with other functions which necessitate a continuing relationship with those engaged in a particular industry.

29 A similar approach was taken to the role of members of the Refugee Review Tribunal in Jia Legeng at [99] – [100] and [187]. See also Eaton v Overland. In Jia Legeng Gleeson CJ and Gummow J (with whom Hayne J concurred) said at [72]:

Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

and at [71]:

Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.

30 Contrary to the Applicant’s Amended Submissions, a commissioner of the Court is not a judicial officer. The Court is composed of the Chief Judge and other judges, appointed by the Governor (s 7 of the Court Act). The provisions governing the qualifications and appointment of a judge of the Court (s 9 – s 11 of the Court Act) differ markedly from the provisions governing the qualifications and appointment of a commissioner of the Court (s 12 – s 14 and Sch 1 of the Court Act). While an acting commissioner is an officer of the Court (s 6(2), s 13 of the Court Act), it is important to bear in mind the distinction between Class 1 proceedings in the Court and the Court’s judicial review jurisdiction in Class 4 proceedings. Class 4 of the Court’s jurisdiction is to be exercised by a judge of the Court (s 33(2) of the Court Act), while Class 1 of the Court’s jurisdiction is to be exercised by a Judge or by one or more commissioners (s 33(1) of the Court Act). A commissioner is intended to bring to the resolution of Class 1 proceedings an existing expertise in matters of the kind which are raised in such proceedings. This is demonstrated by the commissioners’ qualifications for appointment (s 12(2)), and allocation of the business of Court having regard to the knowledge, experience and qualifications of the commissioners and the nature of the matters involved in the proceedings (s 30(2)). A commissioner is not expected to be a tabula rasa with regard to issues concerning planning and the environment.

31 The category of “interest” involves:

some direct or indirect interest in the proceedings, whether pecuniary or otherwise, which gives rise to a reasonable apprehension of prejudice, partiality or prejudgment.

( Webb v The Queen (1993) 181 CLR 41 at 74)

32 The category of “association” arises where:

the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.
( Webb at 74)

33 Neither category of apprehended bias is established on the evidence.

Financial interest

34 In relation to the pecuniary interests alleged firstly (par 3 ground 11(a)(i)), the recipient of the 2005 grant was Macquarie University. The researchers were Dr Taylor and Mr Robert Stokes. The topic was riparian assessment and the amount was $3,500. The application was made by Dr Taylor and Mr Stokes as representatives of Macquarie University. The cheque for the project funds was made out to Macquarie University. The project was required to be completed in 12 months. The grant funds were to be expended upon a vacation scholarship of $2,500 for Ms Elizabeth Lamaro, who was later a co-author of the journal article produced by the research and as to $1,000 on the costs of presenting the paper at a conference. Any equipment purchased was to be retained by the Council. Dr Taylor provided project supervision without payment, as part of his University duties. There was no financial benefit to him personally. The grant funds facilitated the participation by a research student in work of academic interest to her and to Dr Taylor and Mr Stokes.

35 The 2005 project benefited the University by providing opportunities for its research students. Dr Taylor’s involvement occurred in his capacity as an academic member of staff of the University responsible for supporting and supervising the work of research students. That was an activity he legitimately engaged in whilst also an acting commissioner of the Court. It did not give him an interest in the outcome of the Commissioners’ decision. The subject matter of the Commissioners’ decision was not related to the subject matter of the 2005 grant. The outcome of the proceedings could not affect the success or otherwise of the 2005 grant or the published article. There was no pending grant application before the SCGC at the time the Commissioners’ decision was made. A fair minded observer could not reasonably apprehend that by reason of the 2005 project Dr Taylor might not bring a fair and unprejudiced mind to the Commissioners’ decision.

36 In relation to the other projects referred to in grounds 11(a)(iii) and (iv) Dr Taylor did not derive any direct financial benefit from any of these projects. The money was for research projects conducted by the University not for him personally.

37 In relation to the application for Australian Research Council funding (par 3 ground 11(a)(v)) the application was by the University of Technology and was for a project devoted to urban streams/catchment modelling. Dr Taylor participated in the grant application on behalf of Macquarie University.

38 This case is not like Najjar v Haines where a court appointed referee determining a factual issue was a director of a company negotiating at that time for a large contract with a department which was a party to the proceedings. The referee stood in a position to enjoy through the company future contracts from the department, from which he would gain a personal financial benefit. The evidence indicates that Dr Taylor neither received nor could expect any direct or indirect financial benefit from the Council.

Association

39 The association relied on by the Applicant in relation to non-disclosure of membership of certain Council committees erroneously equates a conflict of interest with apprehended bias. The claim of association is based on various matters which individually or collectively could not give rise to an apprehension of bias. The Applicant has not established any logical relationship between Dr Taylor’s former membership of BCNARG, the membership of the SCGC at the time of the hearing, the supervision of the research projects in collaboration with Council staff and the matters in issue in the proceedings.

40 Dr Taylor’s membership of BCNARG (ground 11(b)(ii)) is relied on. This did not make him an officer of the Council. In any event, he ceased to be a member of BCNARG on 2 April 2007 before the hearings before the Commissioners in the present proceedings commenced on 30 April 2007.

41 Contrary to the Applicant’s Amended Submissions, this is not a case like R v Cavil; ex parte Rosenfield. In that case a Crown Prosecutor heard a case as an acting magistrate while he was on leave without pay from his position as Crown Prosecutor. He held two positions at the same time, one as prosecutor and the other as judicial officer. That is not the present case. Dr Taylor has never been a councillor or an officer of the Council.

42 Whether Dr Taylor’s prior membership of the BCNARG or his prior supervision of a research project with the Council gave rise to an appearance of bias may be considered by analogy with cases where a judicial officer was formerly a legal adviser to a party to proceedings before that judicial officer. A judge should not sit if he or she has previously been briefed as counsel in the matter (Thellusson v Lord Rendlesham (1859) 7 HL Cas 429; 11 ER 172; Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260 at 264) or if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal or court (Re Polites; Ex parte the Hoyts Corporation Pty Limited (1991) 173 CLR 78 at 88). The apprehension of bias is stronger where the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests. The former legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate (Re Polites at 88). If a tribunal member or judge sits in a proceeding in which the quality of his or her advice is in issue, there may be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue (Re Polites at 88).

43 There is no basis for a finding of apprehension of bias could possibly arise in relation to the other areas of association identified in the amended grounds.

44 Contrary to the Applicant’s Amended Submissions, Ebner does not support the proposition that a decision-maker’s failure to disclose an interest is a basis for the Court to draw an inference that the decision-maker was partial. In Ebner Gleeson CJ, McHugh, Gummow and Hayne JJ described the judicial practice of disclosing an interest as a convention, rather than a matter of rights or duties. A failure to disclose gives no additional right to the party which later complains of an appearance of bias.

45 Caution should be exercised relying on to English authorities such as Taylor v Lawrence as the test in the UK is different to that in Australian courts. The test is in the UK is “would”.

Finding

46 The parties’ arguments have dealt with two issues, whether the Court has jurisdiction to deal with this Notice of Motion and whether there was an apprehension of bias on the part of Dr Taylor. I will determine the substantive issue of whether there is an apprehension of bias first.

47 The parties agree that the principles articulated in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ of the High Court in Ebner in relation to apprehension of bias are to be applied in this matter. These principles are (at [6]-[8]):

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 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.

48 The test has been described as a “might/might” test (the need for disqualification arises if a fair minded lay observer might reasonably apprehend that the commissioner might not bring an impartial mind to the resolution of the issue) with two steps to be considered. Firstly, identification of what might lead the commissioner to decide a case other than on its merits and, secondly, the identification of a connection between the “interest” and the potential deviation from deciding the case on its merits. The test requires that there be a finding that a possibility (as opposed to a probability or certainty) of bias arises.

49 While the test was described as “undemanding” by Brereton J in British American Tobacco, a case relied on by the Applicant, as pointed out by the Council, too ready a willingness by a judicial officer or tribunal member to find there is an apprehension of bias and recuse himself or herself on that basis is discouraged, as confirmed by the decision of the High Court in Re Polites. The High Court made similar statements in Re JRL; Ex parte CJL per Mason J at 352, and in Bienstein v Bienstein (2003) 195 ALR 225 per McHugh, Kirby and Callinan JJ at 233. In Bienstein the High Court held disqualification because of a reasonable apprehension of bias required substantial grounds to be established. The parties disagree whether there was an apprehension of bias in the circumstances of this case.

50 I have set out the Council’s submissions in some detail as I found them useful and will largely adopt them in the course of this finding. The role of a commissioner of the Court as identified in the Court Act is set out comprehensively in the Council’s submissions at par 30. The different role and expectations of commissioners compared to judges of the Court is correctly identified in terms of the different nature of proceedings in Class 1 proceedings.

51 A commissioner of the Court, whether acting or permanently appointed, is expected to have qualifications and experience which enables him or her to carry out the merit functions necessary for the determination of Class 1 proceedings. That is likely to require work experience and study to achieve the necessary expertise. It is also likely to mean a commissioner will have some familiarity broadly with the issues before him or her and that is desirable. That leads to consideration of the Council’s submissions at par 27-29 to the effect that several cases have confirmed that acquaintanceship with issues and even preconceived views are acceptable for decision-makers. The cases cited are referring particularly to tribunal members exercising administrative functions rather than courts, whereas the Commissioners must operate within the Court. Their role, however, requires an application of their expertise in a way which is analogous to the role of tribunal members considered in these cases. I adopt the submissions of the Council at par 27-29 and note particularly the quotation from par 29 in Jia Legeng. I note the Jia Legeng was dealing with ministerial decision-making under the Migration Act 1958 (Cth). Gleeson CJ and Gummow J (Hayne J concurring) noted (at [99]) the principle in Ebner that the differences between court proceedings and other decision-making must sometimes be recognised and accommodated in relation to the application of the principle of apprehended bias. Hayne J held at [187] that, in the case of the Minister, a wide range of factors may be needed to be taken into account in forming a decision. In the case of an “expert” tribunal, it is assumed a decision-maker may be under no constraints to account for opinions or facts discovered in the course of some other decision.

52 To the cases identified at par 27-29 of the Applicant’s submissions I would also add the unanimous decision of the High Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Angliss Group (1968) 122 CLR 546 at 555 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ, which stated that the expression of an attitude of mind (in that case, that the Commonwealth Conciliation and Arbitration Commission was predisposed to a view favouring the adoption of an equal pay principle) would not necessarily justify a reasonable apprehension that a member might not bring an unprejudiced mind to a particular issue.

53 In Re Polites, a case relied on by the Council, the High Court considered whether there was apprehension of bias in relation to the Deputy President of the Industrial Relations Commission who had given legal advice on the issue before him some considerable time before hearing the matter. He recused himself in the course of a lengthy hearing. The High Court granted an order of mandamus requiring him to continue hearing a matter from which he had recused himself, stating at 87 (footnotes omitted):

The prior involvement of a Deputy President with associations or with governments who are frequently parties to proceedings before the Commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case; nor can the prior acquisition of "skills and experience" amount to such a disqualification. Deputy Presidents who are appointed on account of their industrial background are not disqualified merely because persons with that background have a measure of knowledge or are likely to have a particular attitude to the exercise of the Commission's powers. To adopt the words of the Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Ltd, their background will not necessarily lead them "to act otherwise than judicially, so far as that word connotes a standard of conduct", even though the background which carries experience and knowledge acquired extra-judicially "assuredly means that the subject-matter is such as profoundly to distinguish such a tribunal from the courts ... "

54 The circumstances in which an apprehension of bias might be raised are potentially wide given the breadth of personal experience of those sitting in various courts and tribunals. The test in Ebner is applied to those circumstances whether the decision-maker is a judge or commissioner. An example is Willoughby City CouncilvTransport Infrastructure Development Corporation [2008] NSWLEC 231 in which Lloyd J had to determine if there was an apprehension of bias in relation to an acting commissioner and applied the Ebner test (at [8]) in holding there was not. Whether a particular court or tribunal member has taken an oath of office and has a particular professional background does not change the test to be applied. The fact that Dr Taylor is not a judge and does not swear an oath of office is not a circumstance suggesting an apprehension of bias might more readily arise in this case, contrary to the thrust of the Applicant’s submission at par 25.

Financial interest

55 As identified by the Council (par 31) the meaning of “interest” is wide, per Webb at 74. The Applicant has relied particularly on financial interest. As identified in par 3, ground 11(a), the Applicant argues there are four matters of financial interest giving rise to an apprehension of bias. The indirect benefits Dr Taylor is said to derive, described as financial interest by the Applicant, do not amount to such an interest. The Council’s submissions set out in detail at par 34-38 the circumstances why each matter said to be relevant to financial interest is not. I accept the Council’s submissions in those paragraphs to the effect that Dr Taylor received no direct financial payment from the Council, all sums were paid to Macquarie University and used on research projects generally within Dr Taylor’s area of expertise and interest, riparian management. As submitted by the Council, there is simply no case any party has referred to which is close to suggesting that a financial interest giving rise to an apprehension of bias arises in these circumstances.

56 The Applicant also relied on Najjar v Haines in which the NSW Court of Appeal held that there was an apprehension of bias in circumstances where a referee, who provided a report to the court for the parties in a building dispute, had interests in a company which had ongoing, substantial and profitable business relations with the government department for which, in substance, the respondent was nominal defendant. The financial interest was neither trivial nor remote as the referee attended company meetings and drew income from the company and through the company stood to gain a financial benefit for himself (per Kirby P at 230). I agree with the Council’s submissions at par 38 that the circumstances of this case are far removed from those in Najjar.

Association

57 As referred to in the Council’s submissions, “association” as defined in Webb is also wide (see [74]). As submitted by the Council’s counsel, relying on Re Polites, the nature of the relationship with the client, the ambit of advice and the issues falling for determination are all relevant: Re Polites at 88. The passage from Re Polites set out at par 53 is apposite to the role of commissioners in the Court given the requirement that they have knowledge and expertise in the matters before them. The Council has not been a client of Dr Taylor and he has not had an adviser/client relationship with the Council. His participation in two Council committees referred to in evidence has been voluntary.

BCNARG (ground 11(b)(ii))

58 The evidence relied on by the Applicant went into considerable detail about the meetings of the BCNARG during the time of Dr Taylor’s membership from June 2004 until 2 April 2007. The Applicant has sought to emphasise the advisory nature of the group and highlighted its participation in the policy making process of the Council (see par 18). The chronology at par 11 contains numerous references to meeting and agenda items including the meeting in August 2006 which had a presentation on BGHF from a committee member. The BCNARG’s consideration of the draft Bushland Plan of Management and the draft Biodiversity Strategy are particularly relied on by the Applicant as these potentially have some relevance to BGHF.

SCGC (ground 11(b)(iii))

59 Reliance was also placed on Dr Taylor’s membership of the Small Community Grants Committee which continued during and after the hearing.

60 Also as submitted by the Council, Ebner requires that there be a logical connection between the activities and matters before the decision-maker in the proceedings, see Ebner at [8]. There is no connection between the BCNARG’s activities or the activity of SCGC and the matters in issue in the proceedings. While the actual circumstances of the decision and likely outcome are irrelevant to whether there is an apprehension of bias, in this case the Applicant’s case in part rests on the subject matter of the Class 1 proceedings including consideration of BGHF. Particular attention was paid to the BCNARG’s consideration of BGHF. A committee member made a presentation to the group about BGHF. No other specific action by the committee in relation to BGHF is referred to apart from the group commenting on two draft Council policies concerning bushland. The Biodiversity Strategy and the Bushland Plan of Management were not referred to in the Class 1 proceedings. The issue in relation to BGHF in the proceedings was whether it was a threatened species under the TSC Act. No connection between what was before the Court and BCNARG’s activities has been demonstrated.

61 Voluntary participation by Dr Taylor in an advisory group, the BCNARG, as one of 15 members with various backgrounds is not a relationship which gives rise to an “association” as referred to in Webb at 74. The expectation of further grants from the SCGC was raised as a circumstance likely to give rise to an apprehension of bias. No possibility of apprehension of bias can arise from that voluntary committee membership either. These findings largely repeat what is in the Council’s submissions at par 39-42 which I also adopt.

Ground 11(b)(iv), (v), (vi), (vii) and (x)

62 Dr Taylor’s area of scientific expertise is riparian management. He has pursued collaborative research projects with Council staff and gave a joint conference paper with a Council staff member at a scientific conference on water management during the time the Class 1 proceedings were part-heard, as identified by the Applicant. That is also said to give rise to a finding that he might be seen by a reasonable bystander to have decided the Class 1 proceedings more favourably for the Council, meaning he was more likely to refuse the proposed development because of its impact on BGHF. I can see no basis for that submission on these facts given that there is no connection with the issues in the Class 1 proceedings.

Ground 11(b)(viii)

63 The fact that Dr Taylor received a mayoral award for outstanding service is irrelevant when viewed as a single event and if all matters relied on by the Applicant are considered collectively.

Ground 11(b)(ix)

64 The Applicant relied on Mr Wilk’s advice in a letter to Ms Townsend that he used to supervise students at the same institution with Dr Taylor. Also in evidence (exhibit C) was an internal memorandum from Mr Wilks to another Council officer stating why the Applicant’s proposed development should be amended to protect the remnant BGHF on the site. Mr Wilks gave no evidence in the Class 1 proceedings. This prior professional contact with a Council officer also does not give rise to an association that in any way suggests to a reasonable bystander the possibility of bias on the part of Dr Taylor when an acting commissioner hearing the Class 1 proceedings.

65 The Applicant relied on R v Cavit; ex parte Rosenfield in which a Crown Prosecutor presided when on leave from that position as an acting magistrate. This was held to give rise to an apprehension of bias. Nader J in the Supreme Court of the Northern Territory held that his continuing attachment to the office of Crown Prosecutor meant that a reasonable and fair person would suspect there was a possibility of bias. I agree with the Council’s submission at par 41 that the circumstances of this case are quite different given that Dr Taylor has never held a paid position with the Council or received payment from it in any employment capacity.

66 The Applicant relied on a passage from the judgment of Merkel J in Aussie Airlines Pty Ltd (see par 21) which emphasised that the association can be for many reasons, including favour, to suggest that influence may be perceived to exist. That case concerned an application for disqualification of the presiding judge on the basis of reasonable apprehension of bias by reason of association. Merkel J and the senior counsel appearing for two respondents had a longstanding personal, professional and financial association. The application was dismissed. His Honour also noted at 226 the requirement for:

… a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case. It is the capacity of the association to influence the decision rather than the association as such that is disqualifying.

67 The Applicant relied on Taylor v Lawrence (par 24), an English Court of Appeal decision. The Council argued caution in applying that case as the UK test is different from that in Australia. The circumstances considered in Taylor, where no apprehension of bias was found in relation to a judge who obtained free legal assistance from a solicitor for one of the parties, suggests a stringent approach. That case would appear to support the Council’s case rather than the Applicant’s even taking into account the different UK test.

Conclusion

68 As submitted by the Applicant relying on S&M Motor Repairs (par 23), all the facts of the association such as proximity, duration, nature and intensity should be considered. In this case the Applicant has marshalled material to seek to establish the association by cataloguing extensively Dr Taylor’s research and other activities in relation to the Council. I consider the various matters relied on by the Applicant simply identify the activities of an academic scientist engaged in expanding his expertise through the usual channels of collaborative and other research, and his entirely proper engagement with the community in his area of academic expertise. Those circumstances had no connection to the responsibilities and role of Taylor AC when he heard and determined the Class 1 proceedings the subject of this motion.

69 Substantial grounds on which to base a finding of apprehension of bias are not established on the evidence (applying Bernstein). Individually and collectively the various matters including financial interest referred to in the Applicant’s grounds of appeal do not suggest that a reasonable bystander might consider there was a possibility that Dr Taylor might not bring an unbiased mind to the issues in the Class 1 proceedings. The link between any interest and/or association and the issues in the Class 1 proceedings has not been established. There has not therefore been any failure to accord procedural fairness to the Applicant based on any failure to disclose these matters by Dr Taylor or the Council before or at the outset of the Class 1 appeal proceedings. The Applicant is unsuccessful on this ground.

Jurisdiction

70 Given my finding on the substantive issue it is unnecessary that I deal with the issue of the Court’s jurisdiction, the existence of which was disputed by the Council. My preliminary view is that the Applicant can apply as it has done by way of Notice of Motion in reliance on r 36.15 and the irregularity said to arise from a breach of procedural fairness. I do not consider the fact there is a perfected order dismissing a s 56A appeal means the Applicant has exhausted all its appeal options.

71 The Applicant’s Re-Amended Notice of Motion should be dismissed.

Costs

72 The Council seeks its costs and has been successful. While this Notice of Motion was determined in Class 1 proceedings and the relevant costs provision is that costs are awarded only if fair and reasonable, the issues in the motion are not part of the merit hearing and it is appropriate that costs follow the event. The Applicant should pay the costs of the Council on this Notice of Motion.

73 I note that the Second Respondent filed a submitting appearance save as to costs. The Second Respondent needs to advise the Court whether it has any submissions on costs that it wishes to make.

Orders

74 The Court makes the following orders:

CITATION:	Murlan Consulting Pty Limited v Ku-Ring-Gai Municipal Council and Anor [2008] NSWLEC 318
PARTIES:	APPLICANT Murlan Consulting Pty Limited FIRST RESPONDENT Ku-Ring-Gai Municipal Council SECOND RESPONDENT John Williams Neighbourhood Group Inc
FILE NUMBER(S):	11193 of 2006
CORAM:	Pain J
KEY ISSUES:	Bias :- whether reasonable apprehension of bias by acting commissioner - whether apprehension of bias because of financial interest and/or association Practice and Procedure :- whether Court has jurisdiction to hear motion to set aside perfected orders based on reasonable apprehension of bias under Uniform Civil Procedure Rules 2005 r 36.15
LEGISLATION CITED:	Land and Environment Court Act 1979 Migration Act 1958 (Cth) Threatened Species Conservation Act 1995 Uniform Civil Procedure Rules 2005 r 36.15
CASES CITED:	Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 Bienstein v Bienstein (2003) 195 ALR 225 British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 Cameron v Cole (1944) 68 CLR 571 Eaton v Overland (2001) 67 ALD 671; [2001] FCA 1834 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Fleet v Royal Society for the Prevention of Cruelty to Animals NSW & Ors [2008] NSWCA 227 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 Re JRL; Ex parte CJL (1986) 161 CLR 342 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 McGovern v Ku-ring-gai Council [2008] NSWCA 209 Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Murlan Consulting Pty Limited v Ku-Ring-Gai Council [2007] NSWLEC 374 Najjar v Haines (1991) 25 NSWLR 224 Re Polites; Ex parte the Hoyts Corporation Pty Limited (1991) 173 CLR 78 Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260 R v Cavit; ex parte Rosenfield (1985) 73 FLR 385 R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Angliss Group (1968) 122 CLR 546 S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 Taylor v Lawrence [2003] QB 528 Thellusson v Lord Rendlesham (1859) 7 HL Cas 429; 11 ER 172 Webb v The Queen (1993) 181 CLR 41 Willoughby City Council v Transport Infrastructure Development Corporation [2008] NSWLEC 231
DATES OF HEARING:	17 November 2008 and 18 November 2008
DATE OF JUDGMENT:	4 December 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr M Pembroke SC with Mr A Bouris SOLICITORS Mallesons Stephen Jaques FIRST RESPONDENT Dr J Griffiths SC with Ms M Allars SOLICITORS Deacons SECOND RESPONDENT Mr P Ibbotson (solicitor, submitting appearance) SOLICITORS Blake Dawson

June 2004	Mark Taylor appointed as a member of Ku-ring-gai Council’s Bushland, Catchments and Natural Areas Reference Group (“BCNARG”)
18 October 2004	Inaugural meeting of BCNARG. Mark Taylor in attendance. General discussion at the meeting regarding the potential for Blue Gum High Forest to be rezoned (7C) conservation
29 November 2004	Meeting of BCNARG. Mark Taylor in attendance
December 2004	Council’s Riparian Policy published; the involvement of Mark Taylor acknowledged
2004-2005	Papers co-authored by Mark Taylor and Council officers (Davies and Wilks)
21 February 2005	Meeting of BCNARG. Mark Taylor in attendance; Discussion by BCNARG of the proposed Bushland Plan of Management (refer to p 81 of exhibit B)
9 May 2005	Meeting of BCNARG. Mark Taylor in attendance
20 June 2005	Meeting of BCNARG. Mark Taylor not in attendance; Discussion by BCNARG of the Council’s Biodiversity Strategy, including the question of “Development - where, to what extent” (refer to pp 94, 95, 98 of the exhibit B); Discussion by BCNARG of the proposed Bushland Plan of Management (refer to pp 95, 98 of the exhibit B)
15 August 2005	Meeting of BCNARG. Mark Taylor in attendance; Discussion by BCNARG of the proposed Bushland Plan of Management, including discussion of the following issues: · “the need for a (sic) introductory statement in the Plan that clearly emphasises enhancement of biodiversity and retention of vegetation communities as core objectives”; · “recognising the value of bushland areas that are connected and fragmented”; and · “how to manage the cumulative and site impacts of development … on bushland” (refer to p 101 of the exhibit B)
18 October 2005	Mark Taylor appointed as a member of Ku-ring-gai Council’s Small Community Grants Committee (“SCGC”)
21 November 2005	Meeting of BCNARG. Mark Taylor in attendance; Discussion by BCNARG of the Bushland Plan of Management; Discussion by BCNARG of the Biodiversity Strategy (refer to pp 115, 116 of the exhibit B)
late 2005 - early 2006	Mark Taylor, in his capacity as academic employee of Macquarie University, receives funding in the amount of $23,000 from the Council
2005-2006	Ku-ring-gai Council project to develop a measure for biodiversity involving Mark Taylor
8 February 2006	Meeting of SCGC. Mark Taylor in attendance
20 February 2006	Meeting of BCNARG. Mark Taylor in attendance; Discussion by BCNARG of the Bushland Plan of Management; Discussion by BCNARG of the Biodiversity Strategy (refer to pgs. 68, 79 of DJT2)
3 April 2006	Meeting of BCNARG. Mark Taylor not in attendance; Discussion by BCNARG of the Bushland Plan of Management; Discussion by BCNARG of the Biodiversity Strategy (refer to pp 82, 101 of exhibit A, vol 1)
May 2006	Macquarie University receives $3,500 under Ku-ring-gai Council’s Small Community Grants Scheme for a project coordinated by Mark Taylor
15 May 2006	Report to Council dated 15 May 2006 with the following recommendation: “that Council adopt the Bushland Plan of Management in accordance with Section 36 of the Local Government Act 1993 and Biodiversity Strategy” (refer to p 1 of exhibit D)
23 May 2006	Council resolves to adopt the Bushland Plan of Management Strategy; Council resolves to adopt the Biodiversity Strategy (refer to p 84 of the Minutes of Council, behind tab 35 in exhibit B)
4 August 2006	Development Application no. 855/06 lodged with Ku-ring-gai Council
14 August 2006	Meeting of BCNARG. Mark Taylor in attendance; Mark Taylor gives presentation to BCNARG entitled, “An evaluation of the ecological condition and biodiversity value of urban riparian environments in Ku-ring-gai, Sydney”; Nancy Pallin gives presentation to BCNARG entitled, “Blue Gum High Forest Ecological Community: Core Precincts and Connectivity in Ku-ring-gai”. Ms. Pallin’s presentation expressly identifies the land the subject of the Murlan DA (refer to pp 192, 193 of exhibit A vol 1); Presentation to BCNARG by Ku-ring-gai Council staff, introduced by Peter Davies. Presentation refers to projects undertaken in collaboration with Mark Taylor (refer pp 217, 218 of exhibit A vol 1)
16 October 2006	Meeting of BCNARG. Mark Taylor in attendance; Discussion by BCNARG of the Council’s draft Bushland Encroachment Policy (refer to pp 226, 227 of exhibit A vol 1); Mark Taylor supported by Council as a nominee to the Hawkesbury Nepean CMA/LGMA meeting (refer to p 227 of exhibit A vol 1)
12 December 2006	Council refuses DA no. 855/06
12 December 2006	Appeal filed in Class 1 jurisdiction of the Land and Environment Court
7 February 2007	Mark Taylor commences a 12 month tenure as an Acting Commissioner of the Land and Environment Court
19 February 2007	Meeting of BCNARG. Mark Taylor in attendance; Discussion by BCNARG of the Biodiversity Strategy; minutes note Mark Taylor’s contributions to the discussion (refer to pp 227, 293 of exhibit A vol 1)
13 March 2007	Council resolves to adopt Bushland Encroachment Policy (refer to p 5 of Minutes of Council behind tab 37 in exhibit B)
19 March 2007	Macquarie University Science News publication congratulates Mark Taylor for receipt of the ‘Ku-ring-gai Council Mayoral Award for Outstanding Service to the Ku-ring-gai Community’
2 April 2007	Meeting of BCNARG at which Mark Taylor resigns as member of the BCNARG
2 May 2007	The Council contributes, or agrees to contribute, the amount of $18,000 over 3 years, together with in kind support of $48,500 over the same period, towards an ARC Linkage research grant for which Mark Taylor was an applicant
30 April 2007, 1 May 2007, 2 May 2007, 28 May 2007, and 30 May 2007	Class 1 Appeal heard by Commissioner Watts and Acting Commissioner Taylor
21-25 May 2007	Mark Taylor attends the 5th Australian Stream Management Conference, at which he presented a paper co-authored (amongst others) by Peter Davies of the Council; An additional paper co-authored (amongst others) by Mark Taylor and Peter Davies was presented at the Conference
26 June 2007	Decision of Commissioner Watts and Acting Commissioner Taylor in Class 1 Appeal delivered
26 June 2007	Appeal filed with the Court by the Applicant under section 56A of the Land and Environment Court Act 1979
25 July 2007	Orders of Commissioners entered
18 October 2007	Section 56A Appeal heard by Pain J
29 October 2007	Decision in section 56A Appeal delivered. Orders on appeal entered