JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE REYNOLDS & ORS; EX PARTE PIERCE & ORS [2001] WASC 276
CORAM: TEMPLEMAN J
HEARD: 5 & 14 SEPTEMBER 2001
DELIVERED : 14 SEPTEMBER 2001
PUBLISHED : 8 OCTOBER 2001
FILE NO/S: CIV 2014 of 2001
MATTER :An application for a Writ of Prohibition against Lynton Reynolds, Anna Liscia and Marion Blair as members of the Inquiry Panel conducting an inquiry into the City of South Perth constituted under s 8.16 of the Local Government Act 1995
EX PARTE
SUZANNE PIERCE
SALLY COOK
GRAHAM DAVID ROWE
CHERYL ANN DIBB
IAN JAMES RIOU
WILLIAM EDWARD MCGHIE
PHILLIPA TROWBRIDGE
CLARE LOUISE ALLISON
PETER FRANCIS KIRWAN
Applicants
FILE NO/S :CIV 2194 of 2001
BETWEEN :SUZANNE PIERCE
SALLY COOK
GRAHAM DAVID ROWE
CHERYL ANN DIBB
IAN JAMES RIOU
WILLIAM EDWARD MCGHIE
PHILLIPA TROWBRIDGE
CLARE LOUISE ALLISON
PETER FRANCIS KIRWAN
ApplicantsAND
THE MINISTER FOR LOCAL GOVERNMENT
Respondent
Catchwords:
Practice and procedure - Rules of the Supreme Court 1971 (WA), O 56 r 3
Administrative law - Prerogative writs - Application for a writ of certiorari - Whether Minister of Local Government acted lawfully in suspending local Council - Whether the Minister for Local Government is required to afford procedural fairness to the applicant councillors before suspension under Part 8 of the Local Government Act 1995 (WA)
Administrative law - Prerogative writs - Application for a writ of prohibition to prohibit Inquiry Panel established by Minister of Local Government, pursuant to s 8.20 of Local Government Act 1995 (WA), from proceeding to hear Inquiry - Whether conduct of members of Inquiry Panel gave rise to a reasonable apprehension of bias - Turns on own facts
Legislation:
Local Government Act 1995 (WA), Part 8
Result:
Order nisi granted
Application for writ of certiorari dismissed
Order nisi granted
Order made absolute
Category: B
Representation:
CIV 2014 of 2001
Counsel:
Applicants: Mr R M Utting
First-named Applicant : Mr J C Hammond
Second-named Applicant : Mr J C Hammond
Solicitors:
Applicants: Chan Galic
First-named Applicant : Hammond Worthington
Second-named Applicant : Hammond Worthington
CIV 2194 of 2001
Counsel:
Applicants: Mr R M Utting
First-named Applicant : Mr J C Hammond
Second-named Applicant : Mr J C Hammond
Respondent: Ms C J Thatcher
Solicitors:
Applicants: Chan Galic
First-named Applicant : Hammond Worthington
Second-named Applicant : Hammond Worthington
Respondent: State Crown Solicitor
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Kioa v West (1985) 159 CLR 550
Livesey v New South Wales Bar Association (1983) 151 CLR 288
R v Commonwealth Conciliation and Arbitration Commission & Ors; Ex parte the Angliss Group (1969) 122 CLR 546
Case(s) also cited:
B Surinder Singh Kanda v Government of the Federation of Malaya (1962) 2 WLR 1153
Bradshaw v Kyle & Anor (1996) 15 WAR 327
Eastman v Somes & Anor (No 2) (1992) 107 FLR 86
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- AGLC
- Re Reynolds & Ors [2001] WASC 276
- Case
- [2001] WASC 276
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the panel members had demonstrated an appropriate level of impartiality, particularly in light of certain statements made by one of the panel members. The applicants argued that these statements indicated a preconceived opinion on the matters to be investigated, thus compromising the panel's ability to act fairly. The court was required to determine whether the remarks were sufficient to raise a reasonable apprehension of bias, potentially necessitating the disqualification of the entire panel.
In delivering the judgment, the court considered the principles of natural justice and the requirement for an unprejudiced mind. It noted that while a panel member may have thought about the subject matter, this does not necessarily mean they have formed an irrevocable opinion. However, the court found that the statements in question did create a reasonable apprehension of bias. It was held that the perception of bias, even if not actual, was sufficient to warrant the disqualification of the entire panel to ensure fairness and uphold the integrity of the proceedings. Consequently, the court granted the application for prohibition, ordering that the panel should not proceed with its inquiries.
As a result of the court's decision, the panel was prohibited from continuing with its investigation, and a fresh panel was to be appointed. This outcome was intended to ensure that the inquiry could proceed without any shadow of doubt regarding the impartiality of the decision-makers.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
Those remarks do not in my view go as far as to give rise to a reasonable apprehension of bias. Although they may be thought to express a view, they do not lead to the conclusion that it was a concluded view. As was pointed out by the High Court in R v Commonwealth Conciliation and Arbitration Commission & Ors; Ex parte the Angliss Group (1969) 122 CLR 546 at p 553 - 4,"Those requirements of natural justice are not infringed by a mere lack of nicety and only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the Tribunal or in the minds of the public that the Tribunal or a member or members of it may not bring to the resolution of the questions arising before the Tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it." An unprejudiced mind"is not necessarily a mind which has not given thought to the subject matter but is one which has not formed any views or inclination in respect to it." In other words, there is no requirement that a mind should be entirely blank or without any preconceived view. The requirement is that the mind be open or open to persuasion. That, I think, probably represents Ms Blair's position. Having said that, it seems to me in all the circumstances of the case that because Ms Blair is a member of the Inquiry Panel and because it seems to me that I should grant the writ of prohibition against two members, it would be inappropriate to leave Ms Blair. It seems to me to be far more appropriate to prohibit the panel as a whole from sitting so that a fresh start can be made. In making these conclusions, I have accepted the submission of counsel for the Minister that I should approach the matters with a reasonable degree of robustness. However, it does seem to me, even on that approach, that what has been said by Mr Reynolds in this case does give rise to that apprehension of bias. I emphasise that I do not say that Mr Reynolds is or would be biased, nor that Ms Liscia or Ms Blair would be. But it is the perception: and in my view of this case it is a reasonable perception. In those circumstances I am persuaded that I should grant the order nisi and make the order absolute.