Roads Corporation v Love - [2010] VSC 153

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

No. 6693 of 2004

BETWEEN

ROADS CORPORATION	Applicant
v
THOMAS JAMES LOVE	Respondent

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATES OF HEARING:	14, 16 April 2010
DATE OF ORDER:	16 April 2010
DATE OF PUBLICATION OF REASONS:	22 April 2010
CASE MAY BE CITED AS:	Roads Corporation v Love
MEDIUM NEUTRAL CITATION:	[2010] VSC 153

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Courts and judges – Apprehension of bias principle – Compulsory land acquisition case fixed for trial – Expert planning evidence of central importance – Nominated trial judge having 9 years earlier personally engaged expert planning witness now relied upon as one party’s sole expert planning witness – Judge recuses himself.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Delany SC Mr D Batt (on 14 April 2010)	Garland Hawthorn Brahe
Mr S Goubran (on 16 April 2010)
For the Respondent	Mr Love in person	Not applicable

HIS HONOUR:

On Friday 16 April 2010 I decided that I should recuse myself as the trial judge for this proceeding, and made orders vacating the ten week trial period scheduled to commence on Monday 19 April 2010 accordingly. These are my reasons for that decision.

This proceeding was begun in 2004 by way of a referral by the Roads Corporation under s 80 of the Land Acquisition and Compensation Act 1986 of a disputed claim for compensation made by the respondent, Mr Love, with respect to the compulsory acquisition of part of his land in Epping in connection with plans for the building of a freeway. The proceeding has a long and tortuous interlocutory history.[1] I became the nominated trial judge in late December 2009.
[1]See my ruling of 16 December 2009: Roads Corporation v Love [2009] VSC 628, especially at [6]-[7].

Mr Love’s solicitors withdrew from this proceeding, by leave, on 29 January 2010 and he has not had solicitors or counsel acting for him on the record in the proceeding since that time.

On 7 April 2010 the Roads Corporation’s solicitors sent an email to my Associate (with a copy to Mr Love) as follows:

“It has come to our attention that one of the witnesses upon whose evidence our client proposes to rely at the trial of this proceeding, Mr Robert Milner, may have previously appeared as a witness on behalf of a group of residents, including his Honour Justice Cavanough, in 2000.
We understand that Mr Milner appeared at VCAT on behalf of a group of 16 residents who were objecting to an application to demolish an existing house and to develop land for two dwellings.
We enclose for your information a copy of an email which we forwarded to Mr Love on Thursday 1 April 2010 advising him of this information.”

The email to Mr Love of 1 April 2010 of which a copy was attached to the solicitor’s email to my associate read as follows (omitting formal parts):

“As you…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSC 153
Decision Date: 22 April 2010

CaseChat Overview and Summary

The Roads Corporation contested the compulsory acquisition of land by Love in the Federal Court of Australia. The primary issue before the court was whether the nominated trial judge should recuse himself due to a prior personal engagement with an expert planning witness who was now acting as Love's sole expert witness. The case turned on the principle of apprehended bias, specifically whether the prior engagement created an appearance that the judge might not approach the trial with an impartial mind.

The court had to determine if the prior relationship between the judge and the expert witness was such that a reasonable observer, knowing all the facts, might apprehend that the judge would not deal with the case impartially. This required an assessment of the nature and extent of the prior engagement and its potential impact on the judge's impartiality. The court noted that while there was no evidence of any actual bias, the appearance of bias could be as detrimental as actual bias.

The court held that the prior personal engagement between the judge and the expert witness warranted the judge's recusal. The relationship was deemed close and intimate enough to create a real likelihood of bias. The court concluded that a reasonable observer might apprehend that the judge could not bring an impartial mind to the trial. Consequently, the judge recused himself to avoid any perception of partiality.

The court did not make any further orders regarding the case, as the primary issue resolved by the recusal sufficed for the immediate matter at hand.

Orders