Pancho Properties Pty Ltd v Wingecarribee Shire Council

[1999] NSWLEC 49

Land and Environment Court

of New South Wales

CITATION:

Pancho Properties Pty Ltd -V- Wingecarribee Shire Council [1999] NSWLEC 49

PARTIES

Appellant:
Pancho Properties Pty Ltd

Respondent:
Wingecarribee Shire Council

NUMBER:

10071 of 1998

CORAM:

Talbot J

KEY ISSUES:

:- procedural fairness - apprehended bias - deferral of judgment to allow similar matter to proceed

LEGISLATION CITED:

procedural fairness - apprehended bias - deferral of judgment to allow similar matter to proceed

DATES OF HEARING:

03/08/1999

EX TEMPORE JUDGMENT DATE:

03/09/1999

LEGAL REPRESENTATIVES:

Appellant:
Mr I Hemmings (Barrister)

Solicitors:
Solomon Garland Partners

Respondent:
Mr P McEwen SC

Solicitors:
B. Bilinsky & Co.

JUDGMENT:
IN THE LAND AND MATTER No. 10071 of 1998
ENVIRONMENT COURT CORAM: Talbot J
OF NEW SOUTH WALES DECISION DATE: 8 March 1999

PANCHO PROPERTIES PTY LTD
Appellant


v

WINGECARRIBEE SHIRE COUNCIL
Respondent

REASONS FOR JUDGMENT


The appeal

1. This is an appeal against the refusal of a development application by Assessor Roseth, as he then was, on 20 November 1998.

2. The appellant relies on six formal grounds of appeal set out in a statement pursuant to Pt 13 r 37 attached to a Notice of Motion filed on 17 December 1998.

3. The parties agreed that the determination of the sixth ground of appeal in favour of the appellant would render a determination of the remaining grounds of appeal unnecessary and that accordingly the Court should deal with that single ground of appeal in the first instance as a matter of efficiency and expediency.

4. The sixth ground of appeal formally states that the applicant was denied procedural fairness when the Assessor deferred giving his judgment until after he heard the evidence and submissions in similar proceedings.

5. Although the appellant maintained this ground of appeal before me, it was nevertheless argued by both parties on the additional basis that the actions of the Assessor also gave rise to apprehended bias.

The hearing

6. The Assessor heard evidence and submissions over the two days 9 and 10 November 1998 at Bowral.

7. At the conclusion of submissions he informed the parties that he would deliver judgment at 9.45am Thursday 12 November 1998.

8. On 12 November 1998 at 9.45am the solicitor for the respondent, Mr Bohdan Bilinsky and Mr Solomon, a director of the applicant company, who coincidentally is a solicitor but not the solicitor on the record, attended the Bowral courthouse in anticipation that the Assessor would deliver judgment at that time. They were requested by the Sheriff’s Officer to meet with the Assessor in chambers.

9. The director of the applicant company, Mr Solomon, has given evidence that the Assessor and he said words to the following effect:-

Assessor: “Mr Solomon, I will be unable to deliver judgment on your case this morning as I have only just discovered that I have another case starting today which has identical facts and circumstances to your case. It would be unfair to both cases if I were to deliver my judgment in your case before the commencement of the hearing in the other case. Could you perhaps contact Mr Bilinksi (sic) at lunchtime today, at which time he will be able to indicate to you whether judgment may be given down later this afternoon? Today’s hearing should be quite brief.” (emphasis added)

I said: “As the other case has similar facts and circumstances, I will stay and listen.”

Assessor: “In that case I will indicate to you around lunchtime as to what I will do with my decision in your case.”

10. Mr Bilinsky takes issue with Mr Solomon’s version of what the Assessor said by relating his words as being to the effect:-

“I have another case starting today with virtually identical issues to your case, and it would not be fair to parties in that case to be aware of my decision in your case as it could make it difficult for their case to be argued knowing the decision in this case in which I had delivered judgment.” (emphasis added)

11. At the luncheon break on 12 November, Mr Bilinsky and Mr Solomon were informed by the Assessor that if the second case finished on that day, he might be able to give his decision late that afternoon.

12. Finally at 4.45pm on the same day the Assessor informed Mr Bilinsky and Mr Solomon in chambers that as the closing submissions in the other case would not be heard until the next week, in Sydney, he had no choice but to defer the handing down of the decision until he heard the closing submissions.

13. The Assessor then indicated that he intended to deliver a written judgment, most probably in Sydney.

14. Although the versions of the first statement made by the Assessor differ, it is not necessary in my opinion to determine which recollection should be preferred, for reasons that will become apparent.

15. At the conclusion of the submissions made in regard to this ground of appeal, with the consent of the parties I delivered an ex tempore decision and gave a brief summary of my reasons on the basis that I was expected to publish full written reasons in due course.

16. I confirm that the appeal should be upheld for the reason that there was a denial of procedural fairness. Further, the reasons given for the deferral of the final decision where only one of the parties was involved in the second case with virtually identical issues or identical facts and circumstances gave rise to a reasonable apprehension there may be an influence on the mind of the Assessor, thereby affecting the perception of confidence in the decision.

Procedural fairness

17. There is no argument that both parties had the expectation that the Assessor would deliver judgment at 9.45am on 12 November 1998.

18. At that time the parties in chambers were presented with a decision about which the Assessor had already made up his mind. Neither party was given the opportunity to make submissions as to why judgment should not be deferred.

19. The parties, in particular the appellant, had an obvious interest and indeed both had a legitimate expectation that the judgment would be delivered at the foreshadowed time. The Assessor, in the interests of procedural fairness, should have given the parties an opportunity to consider their respective positions and, if required, to be heard before the matter was adjourned to another date.

20. Whether or not that conclusion is correct does not matter in the circumstances of this case because the Assessor went on to give a reason for the delay. It is immaterial whether the Assessor expressed a concern about unfairness to the parties in both cases or only in one of the cases. Having decided that he should not deliver judgment until the other case had been heard, it was in my view essential to give the parties a proper opportunity to argue to the contrary or at least to ask that any alleged prejudice to their interests be taken into account and given due weight.

21. The requirements of procedural fairness must depend upon the nature and circumstances of each case. These include the subject matter and the consequences of the decision.

22. A duty to act judicially extends to the manner in which and the steps by which a decision is made involving a concern with substance as well as form.

23. The announcement made by the Assessor in chambers was a dictation made without taking account of any potential prejudice to either party’s rights, interests or legitimate expectations which might be contravened by the decision. It is particularly important to note that the legal representative of the appellant was not present when the announcement was made.

24. The Court is satisfied that the appeal should be allowed on the ground that the principles of procedural fairness demand that the Assessor should have given the opportunity for the parties to be heard before he made his decision. This is particularly so because the basis for his decision was dependent upon evidence of facts which were not previously known to the appellant and which had not been raised during the hearing. Accordingly there was no opportunity to test their veracity or relevance.

Apprehended bias

25. It is not suggested by either party that the Assessor approached the issues except with an impartial and unprejudiced mind or that his decision provided a basis for a reasonable apprehension that he actually approached the task of decision making by relying on extraneous material that came to his attention during the second hearing.

26. It is important to bear in mind that the Assessor was presiding in a Court where the members are often widely understood to have some prior knowledge of the circumstances which could give rise to the issues for determination. This knowledge is based on their wide experience gained from professional practice and the hearing of other cases. It is therefore inevitable that the Commissioners, formerly known as Assessors, in this Court will have some familiarity and understanding of issues raised in many of the cases which they adjudicate. They are appointed as Commissioners in the first place primarily because they have that professional expertise and experience. This is not a case where the Assessor should have disqualified himself from sitting on account of his participation in the other proceedings.

27. The alleged ground for disqualification in the present case is whether there was a reasonable apprehension in the circumstances that the judicial officer might not decide the case without prejudice to the extent that the parties or the public might have a substantial distrust of the result or at least because the circumstances in which it was made could affect the confidence of reasonable persons in it ( Reg v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100 at 116).

28. In Re JRL; Ex parte CJL (1986) 161 CLR 342 Mason J said at 356-357:-

It would be idle for this Court to say that it is confident that the judge will act impartially. We have to ask ourselves how the matter would appear, viewed reasonably, to the public and the parties.

29. It is a reasonable apprehension in a fair-minded observer with which the Court is concerned ( Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294).

30. When he was cross examined, Mr Solomon protested on a number of occasions that although he was a solicitor, he was not aware of the procedure and practices in the Land and Environment Court and was therefore not able to judge whether the Assessor’s decision was unusual.

31. Mr Solomon appeared in chambers as a director of the appellant corporation. He was not the solicitor on the record who had appeared to instruct counsel at the hearing two days previously. In this context the observations by Toohey J in Vakauta v Kelly (1989) 167 CLR 568 at 585 (after referring to the apprehension identified in Livesey ) are apposite:-

But, in this regard, the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case.

32. It is relevant to understand the status of the representative of the appellant in chambers in order to meet the suggestion by the Court of Appeal in Wentworth v Rogers [No. 12] (1987) 9 NSWLR 400 that the proper time of objection for bias to be made is during or at the end of the course of proceedings. Only where the alleged bias appears for the first time in the decision at the conclusion of the proceedings should the point be taken on appeal de novo. This is to give the Judge an opportunity to consider and, if thought fit, to comment on the allegations. It must be appreciated that, at least so far as the evidence goes, in the present case the Assessor did present the parties with a fait accompli on 12 November.

33. The words used by the Assessor are not sufficiently succinct to give the Court confidence that the judgment had been drafted into a final form and that it was merely to be placed aside pending a formal delivery irrespective of what occurred in the other matter. I appreciate that views could differ on that perception but nevertheless I am satisfied a reasonable observer may have been left with an impression that what occurred in the next case might have had some bearing on the decision in the present case. Although Mr McEwen’s submission on behalf of the council does not go so far as to acknowledge that prospect, he nevertheless made a reasonable concession when he accepted there is no indication of the form of any judgment the Assessor intended to deliver on 12 November and how in any respect it may have differed from the formal written reserved judgment delivered on 20 November 1998.

34. However, ultimately, that is not to the point. It is a question of apprehension and, in that context, it is important for there to be a reasonable prospect of appreciation that the proceedings have been conducted and concluded in such a way that those relying on the judgment may accept it with confidence.

35. I am satisfied in the circumstances of this case after having regard to the facts, and in particular the observations made by the Assessor, there was a reasonable apprehension the matter might be decided on extraneous material over which the parties had no control and no opportunity to address. The importance of the point is demonstrated by the observations by Kirby P in GIO of NSW v Bailey (1992) 27 NSWLR 304 at 311:-

If material is used to determine a case which is outside the legal evidence, beyond the permissible exceptions and is not disclosed to the parties, an irregularity will have occurred which may amount to a breach of the requirement of procedural fairness and necessitate the setting aside of the judgment challenged.

36. It is a matter of fair play that parties have an opportunity of answering or dealing with all matters the Court takes into account before making a decision.

37. It is not a question of the Assessor acting partially or impartially, it is a question of whether or not there can be confidence in the way he reached his decision. It is for that additional reason I am prepared to uphold the appeal.

38. The Court is satisfied that a fair-minded observer would have a reasonable apprehension that by deferring his decision, the Assessor could be influenced or take into account matters which arose during the course of the later hearing. The parties had no opportunity to address him in regard to these matters.

39. The fair-minded observer would also be assisted to reach that apprehensive state by the accepted fact that the respondent was represented in the second case by the same solicitor. Evidence was given by the same experts who gave evidence on behalf of the council in this matter.

40. Even if this is not strictly a case of apprehended bias, it is nevertheless apparent that the decision of the Assessor is liable to be set aside because a fair-minded third party member of the public would not be satisfied that the parties had been given a reasonable opportunity to deal with all of the issues that may have been raised in the Assessor’s mind to the extent that they would not be confident of the result and trust it.

41. Although I am in no doubt the Assessor acted with the best of motives, the case illustrates the way in which departure from accepted practice can give rise to unintended consequences. The Assessor, by attempting to be fair to the parties in at least one of the cases, and maybe both, ended up creating a concern which could have been avoided by either delivering his decision in the first case at the appointed time or allowing argument before he decided to do otherwise.

Conclusion

42. The decision of the Assessor cannot be allowed to remain.

43. In my view it is not appropriate, in the circumstances, for the matter to be referred back to Commissioner Roseth for determination as that would have further potential to exacerbate what is already an unsatisfactory position and would be wrong in principle having regard to the reasons for upholding the appeal.

44. The appeal will be upheld and the Court will make an order pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979 that the proceedings be heard and disposed of by a Judge of the Court or by one or more Commissioners in accordance with any direction made by the Chief Judge pursuant to s 36(1)(a).

Costs

45. The respondent acknowledges that the appellant is entitled to the exercise of the Court’s discretion to make an order for costs in its favour. However, I reserved leave for the respondent to make further submissions in relation to the application of the Suitors Fund Act in the circumstances. Accordingly the question of costs will be reserved.

Orders

46. The Court makes the following orders:-

1. Appeal upheld.

2. The matter is remitted for rehearing by a Judge of the Court or to be heard and disposed of by one or more Commissioners, other than Commissioner Roseth, as directed by the Chief Judge.

3. Costs reserved.

4. The exhibits may be returned.

I hereby certify that this and the preceding 10 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot.

Associate