Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal
[1990] FCA 642
•12 Nov 1990
JUDGMENT No. 6?.2./.%?-.,.
CATCHWORDS
ADMINISTRATIVE LAW - whether member of the Australian Broadcast~ng Tribunal who made
original decision should conduct a rehearing - principles of apprehended bias discussed.
PRACTICE AND PROCEDURE - costs - discretion
. 3 . . . 1977 (Cth)
NSW PM PTY L- v. m A U S T R A V T I N G TRlBUNAI, RIV-
Davies, Burchett & Foster JJ.
12 November 1990
Sydney
No. G421 of 1990
m THE E U R T Q u u I M u )
) No. G421 of 1990
- )
from a judgment of
a single judge of the Federal Court
BETWEEN:
Appellant
m:
TRIBUNAL
First Respondent
S FM BBPLQ
LIMITED
Second Respondent
ALSO
N R IV-
LIMITED
Cross Appellant
IW AUSTRAUAN TRIBUNAL
First Cross Respondent
Second Cross Respondent
G?lUl: Davies, Burchett & Foster JJ. &&C: 12 November 1990 uiiss: Sydney
The appeal be dism~ssed.
The cross-appeal be dismissed.
Each party abide its own costs.
m: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
)
) No. G421 of 1990
v
) )
- )
Qn from a judgment of a single judge of the Federal Court
lslzw3u: NSW PM PTY LI- Appellant
m:
TRIBUNAL
First Respondent
LIMITED
Second Respondent
ALSO
FM RAPLQ
LIMITED
Cross Appellant
First Cross Respondent Second Cross Respondent
G!UUl: Davies, Burchett & Foster JJ. M: 12 November 1990 &LCG: Sydney
7: This is an appeal from a judgment of a single judge of the Court.
, . . .
Proceedings had been brought in the Court under t - h
1977 ( C t h ) ( " t h e A D J R ) . Northern Rivers PM Radio Limited was the applicant and the Auatralmn Broadcasting Tribunal was the respondent. The learned trial Judge by consent ordered that a report of an inquiry by the Australian Broadcasting Tribunal into the grant of an FM radio licence to serve the Lismore area be set aside and that the matter be referred back to the Tribunal
to be dealt with in accordance with law. The trial Judge was also asked to add the present appellant, Northern NSW PM Pty Limited, as a second respondent in the proceedings. All parties then joined in seeking an order that leave be granted to the applicant, Northern Rivers FM Radio Limited, to amend its application to seek an order that Mr Bruce Allen, the member const~tuting
the Australian Broadcasting Tribunal for the purpose of the report, not sit to hear and determtne the matter again. On that amendment being made, the trial Judge heard counsel for the partles on the question whether or not a direction to that effect should be given. After hearing counsel, the trial Judge directed that Mr Allen not conduct the rehearing.
Tbe trial Judge expressed the issue as fol lows
"Prior to the hearing the parties agreed to the order of review, but the applicant sought an additional order that the member of the Tribunal who had made the original decision to be reviewed should not conduct the review on the ground of
apprehended bias. Tbe argument was that he had made a decision of fact that has been quashed, and that in the context and circumstances, natural justice requ~res that another member sit on the review on the ground that there had been a pre- determination of all or some of the issues which the review would have to consider. There was no dispute that under section 16(l)(d) of the ADJR Act the Court has jurisdiction to grant the order sought. Nor was there any suggestion that the Tribunal member is in fact now unable to glve a fair or just decision, merely that a reasonable person may entertain a suspiclon that he may not bring an unbiased mind to his task such that his determ~nation might lack public and legal integrity."
It must be kept in mind that there was not a substantive applicat~on before his Honour
to prohibit Mr Allen from sitting on the rehearing, to which application the established principles
of law with respect to bias would have been applicable. Rather, the trial Judge was asked to give a direction in the exercise of the discretion conferred by S 16(l)(b) of the ADJR which reads:.
"16(1) On an application for an order of review in respect of a decision, the
Court may, in its discretion, make all or any of the foilow~ng orders:-
(b) an order referring the matter to which the decision relates to the person who made the declsion for further consideration, subject to such directions as the Court thinks fit;"
On the hearing of the appeal, counsel for the Australian Broadcasting Tribunal submitted that the power to constitute the Tribunal for the purposes of a particular proceeding was vested in the Chairman of the Tribunal and that the Court ought not to make an order which might
interfere with the exercise of his discretion. This submission is not consistent with the manner
in which the Issue was put to the trial Judge. Before the trial Judge, Northern Rivers FM Radio
Limited put one view and Northern NSW FM Pty L~mited put the contrary view. The trial Judge
recorded the approach of the Australian Broadcasting Tribunal as follows:-
"The Tribunal appeared before me to put some general submissions on the law relating to the way to approach such cases, but did not put a substantive submission. It said that it would not be embarrassing or problematic for the
Tribunal whichever way this decision went."
Thus, all parties including the Austral~an Broadcasung Tr~bunal appeared before the t r ~ a l Judge
for his decision on the issue, in accordance w ~ t h his discretion under s.16 of the ADJR.
The general p r~nc~ples applicable when a substantive application IS made for an order of
review on the ground of bias or apprehended b ~ a s were d~scussed in
(1986) 161 C.L.R. 342. At pp.351-2, Mason J. said:- "The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and
unprejudiced mind to the resolution of the issues: Reg. v. Watson; Ex parte Armstrong (1976) 136 C.L.R. 248, at pp.258-263; Lrvesey v. N.S.H! Bar
Assocratron (1983) 151 C.L.R. 288, at pp.293-294. This principle, which has evolved from the fundamental rule of natural justice that a judic~al officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.
There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he n likely to decide isaues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg v. Commonwealth Concrlratron and Arbitration
Comrnrssron; Ex parte Angliss Group (1969) 122 C.L.R. 546, at pp.553-554;
Watson (1976) 136 C.L.R., at p.262; Re Lusmk; Ex parte Shaw (1980) 55 A.L.J.R.
12, at p.14; 32 A.L.R. 47, at pp.50-51. Although it is impoitant that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias. encourage parties to believe that by seeking the disqualification of a judge. they will have their case tried by someone thought to be more likely to decide the case in their favour."
See also Liw v. (1990) 64 A L.J.R 412.
Those are the general principles; but it has also been said that bias may appear "where a
deciding party has, in another capacity, already formed a view of the matter.", per Poulkes'
. .
, - 6th Ed., p.259, or "committed himself to an opinion on the case in advance
of the inquiry", per Wade on , 6th Ed., p.478. Thus, in B. v KentPolicc
Authorrtv: [l9711 2 Q.B. 662 at p.670, Lord Denning MR said:-
"Dr Crosbie Brown was disqualified from acting. He had already expressed an opinion adverse to Chief Inspector Godden. As early as July 23, 1970, Dr Crosbie Brown had said that the chief inspector was suffering from a mental disorder. Dr Crosbie Brown acted on that opinion by putting him on sack leave. He has put his opinion on affidavit. He has committed himself to a vlew in advance of the inquiry. I think it would be impossible for Dr Crosbie Brown - who is just a
general medical practitioner and not a consultant - to bring a completely impartial mind to bear upon the matter. In any event, to the person affected by it, Chief Inspector Godden, it must inevitably appear that Dr Crosbie Brown cannot bring an impartial judgment to bear upon the matter. If he was to decide the matter justice would not be seen to be done."
At p.673, Karminski L.J. said:-
"I also agree, and desire to say only this: Dr Crosbie Brown has been put, through no fault of his own, in a difficult and delicate position. About a year ago he inquired into the position so far as Chief Inspector Godden's health was concerned, and the opinion he formed was adverse as to the inspector's health. He is now holding, or has been asked to hold, another inquiry a year later, and an inquiry which, as Lord Denning M.R. and Salmon L.J. have pointed out, requires the exercise of at any rate judicial functions. In other words, he has to inquire and to reach a decision. In those circumstances it would be almost impwible for Dr Crosbie Brown to be wholly impartial. I do not use those words in an unkind or critical senae. He formed a view a year ago, and it would require perhaps superhuman qualities if he were able to expunge altogether from his mind what he heard last time and the reasons for which he came to the conclusion that he reached."
Counsel for the appellant subm~tted that a reading of the reasons for decis~on of the
Tribunal did not disclose that Mr Allen had expressed any extravagant or strong personal views
w ~ t h respect to any witness who had appeared before him or that he did other than impartially carry out his duty to make a decision. Counsel submitted that there was no ground for alleging that, if there was a rehearing, Mr Allen would not again approach his task entirely impart~ally
and deal with the matter afresh in accordance with the material before him. The trial Judge "Indeed, the trenchancy of the Tribunal's conclusions on the applicant's statutory qualifications make doubtful how it could have found the appl~cant o be suitable for a licence at all. It is difficult to see how a reasonably perceptive outsider would fall to doubt that the writer of those words could be fully objective in a reconsideration of the same matters."
However, counsel submitted that Mr Allen's remarks were moderately expressed findings which
were well based on the evidence before the Tribunal.
if a decision ban been set aside for error and remitted for rehearing, it will generally seem
fairer to the parties that the matter be heard and decided again by a differently constituted
tribunal. This is b e c a u ~ the member constituting the tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may thisk that a rehearing before the Tribunal as orig~nally constituted
could be worthless, for the members's views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearlug, the
President of that Tribunal ordinarily allocates to the rehearing a different member of the
Tribunal. There are, of course, cases where it ia convenient for the Tribunal as previously
constituted to +a1 with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the Tribunal as previously constituted to consider the matter again. See e.g. Versatile v. Ltd (Sweeney, Woodward and Davies JJ. delivered 21 February 1985, unreported) in whlch the Court remarked,
"... subject to questions of availability of members. ~t would be helpful if the matter were heard
by the Tribunal as it has so far been constituted."
In the present case, Mr Allen's views with respect to the merits of the case put on behalf of Northern Rivers PM Radio Lim~ted were fully and firmly expressed and they were adverse
to that company. As the matter is to be heard and decided again, because there was error in the
first decision, it will seem fairer to Northern Rivers FM Radio Limited that the matter be heard by a differently constituted Tribunal. The trial Judge was not lnformed what was the error which brought about the remittal of the matter and he was unable to determine from that information that it would be fair to the parties to have the matter reheard by the Tr~bunal as
originally constituted. Moreover, there was no evidence before his Honour that there would be substantially greater costs or delay incurred should the Tribunal be reconstituted. The trial Judge would have assumed that use could be made of the transcript of the first proceedings and of the
documents tendered in those proceedings. The Australian Broadcasting Tribunal did not express a view that a rehearing by a differently constituted Tribunal would be inconvenient or unsuitable. In these circumstances, there was nothing before his Honour to show that the ordinary practice should not apply.
The trial Judge cited a number of authorities on the subject of bias including the remarks of Dixon C.J., Williams, Webb and Fullagar JJ. in&. v
v
-
Boar-
(1953) 88 C.L.R. 100 at p.116 where their Honours
said:-
"Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his dut~es,
with the result that a substantial drstrust of the result must exist in the m ~ n d s of reasonable persons."
Remarks such as those are not apposite in the present case for there is no suggestion that Mr
Allen conducted himself otherwise than wrth due propriety and impartiality However, it was
not on that basis that the trial Judge made the order. His Honour concluded that as "the Tribunal's consideration of the matter was extensive, far-reaching and lengthyhnd as "strong
views on the applicant's compliance with the requisite cr i ter ia9ad been expressed, it would better achieve the object of having the matter heard and decided agarn that the Tr~bunal should
be differently constituted. Such a finding imports no critic~sm whatever of the member who
orrginally constituted the Tribunal but simply recognises that, when decisions in judicial and administrative proceedings are set asrde in toto and the matter remitted to be heard and decided again, justice is in general better seen to be done if the court or the tribunal is reconstituted for the purposes of the rehearing.
For these reasons, in our opinion, the appeal by Northern NSW FM Pty Limited should
be dismnsed.
There is a cross-appeal brought by Northern Rivers FM Radio Limited agalnst the order of the trial Judge that "each party should pay its own costs". It is not entirely clear whether thin order referred to the whole of the proceedings which came before the t r~a l Judge or only the application for the order that I have discussed. His Honour did not give reasons for his decrsion as to costs. It seems that his Honour had in mind that, as the parties all consented to the principal order as sought by Northern Rivers FM Radro Limited, then each party should abide
its own costs of thoee proceedings. Costs would not ordinarily be ordered against the Australian
Broadcasting Tribunal because of error in its proceedings.
His Honour then appears to have considered that, as the question of the constitution of the Tribunal was an issue which could credibly be argued either way, it would be unfair to requlre Northern NSW PM Pty Limited to pay the costs, when all parties bad joined in askrng him, as the trial Judge, to resolve this one issue on wh~ch they could not agree. It appears that
his Honour thought that, as good arguments could be put for each view, it was proper to leave
each party to bear its own costs of the proceedings.
His Honour's order was a discretionary order, though the discretion was to be exercised
judicially. The circumstances which were before the trial Judge did not ~nvolve ordinary
adversar~al itigation but arose out of judicial review of an administrative proceeding. In this circumstance, his Honour's discretion should not be held to have m~scarried. The order which
h ~ s Honour made was an order that was open to him in the crrcumstances of the case.
As the appeal and the cross-appeal have failed, no order as to costs should be made as
between the appellant and the cross-appellant. The Australian Broadcasting Tribunal sought costs
agalnst the unsuccessful parties. However, the Australian Broadcastlug Trrbunal intervened in
the proceedings and, as intervenor, should abide its own costs.
I certify that this and the preceding 8 pages are a true copy of the reasons for judgment of the Honourable Mr Justice Davics and the Honourable Mr Justice Foster.
Associate: &h.Qh
Date: 12 November 1990
ON APPEAL FROM A JUDGMENT OF A JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
BETWEEN r Appellant
AND r TRIBUWAL
First Respondent
LIMITED
Second Respondent
AND BETWEEN: FM RADIQ LIMITED
Cross Appellant
AND r
First Cross Respondent
NSW FM PTY L -
Second Cross Reepondent
CORAMI Davies, Burchett and Foster JJ.
PLACE: Sydney
DATE : 12 November 1990
It is unfortunate that this case was argued below (as it
seems) upon the principles appropriate to an application to a
court or tribunal that the person constituting it, or being
one of its members, should be regarded as disqualified on the ground of a reasonable apprehension of bias. As Davies and Foeter JJ. have made clear, the real point was whether the discretion conferred upon the court by s.16(1) (b) of the
tive Decisiws IJu&icial Review) A c t 1977 should be
exercised so as to give a direction that the rehearing take place before a differently constituted tribunal. However, I am satisfied that the appropriate order under a.l6(l)(b) was the order which was in fact made. On that short ground, I agree that the appeal should be dismissed. I also agree that the costs orders proposed by my brothers should be made, for the reasons given by them.
I certify that this and the preceding page are a
true copy of the Reasons for Judgment herein of his
Honour Mr Justice Burchett.
Dated: 12 November 1990
Counsel for the Appellant: Mr T.J. Hancock Solicitors for the Appellant: Messrs Maxwell Eyers and
MillerCounsel for the First Respondent: Solicitors for the First Respondent: Australian Government
SolicitorCounsel for the Second Respondent: Mr A. Robertson Solicitors for the Second Respondent: Messrs Blake Dawson Waldron Date of hearing: 9 October 1990
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