Tavitian v Public and Environmental Health Council and City of Playford No. Dcaat-02-278
[2003] SADC 178
•24 December 2003
TAVITIAN V PUBLIC AND ENVIRONMENTAL HEALTH COUNCIL
AND CITY OF PLAYFORD
[2003] SADC 178CIVIL - ADMINISTRATIVE AND DISCPLINARY DIVISION
JUDGE DAVID SMITH
This is an appeal instituted pursuant to s29 of the Public and Environmental Health Act 1987 (“the 1987 Act”), against a decision of the Public and Environmental Health Council (“the Council”), upholding certain requirements imposed upon the appellant by the City of Playford (“the local Council”). The appeal comes before this Court sitting in its Administrative and Disciplinary Division.
Background circumstances
The appellant resides at 14 Shaftesbury Road, Elizabeth Vale, which is within the boundaries of the City of Playford. On 6th November 2001 the City of Playford issued a Notice of Insanitary Condition (“Notice”), to the appellant pursuant to s15(1) of the 1987 Act. The Notice was in the following terms:
“WHEREAS:
A.You are the owner of premises situated at 14 Shaftesbury Road, Elizabeth Vale being the land described in Certificate of Title Register Book Volume 5318 Folio 46.
B.The premises has [sic] been allowed to accumulate numerous items and objects including garden waste, iron, timber, plastic, tyres, dilapidated motor vehicle bodies containing refuse and rubbish, motor parts, mattresses and a variety of metal frames, tubing, fencing materials and general refuse and rubbish. Images evidencing the insanitary condition of the premises are annexed hereto.
C.The premises are in an insanitary condition by reason of the fact that:
(1) the premises are so neglected that there is a risk of infestation by rodents or other pests; and
(2) the condition of the premises is such to cause justified offence to the owner of land in the vicinity of the premises.
NOW TAKE NOTICE that you are required to take the following action to improve the condition of the premises:
1.Remove from the premises all refuse and rubbish in the form of garden waste, plastic, mattresses, motor vehicle bodies containing refuse and rubbish and general refuse and rubbish;
2.Sort, store and stack all other items and objects retained on the land in an orderly manner which is able to be maintained such as not to present a risk of infestation by rodents or other pests.”
Strictly speaking the word “insanitary” is not defined. However, s3(2) of the Public and Environmental Health Act 1987 provides:
“Premises are in an insanitary condition if -
(a) the condition of the premises gives rise to a risk to health; or
(b)the premises are so filthy or neglected that there is a risk of infestation by rodents or other pests; or
(c)the condition of the premises are such as to cause justified offence to the owner of any land in the vicinity; or
(d)offensive material or odours are emitted from the premises; or
(e)the premises are for some other reason justifiably declared by the authority to be in an insanitary condition.”
(the italics are mine and are the reasons or grounds upon which the Notice was given)
The Notice demanded that the appellant take certain action to improve the condition of the premises. The appellant appealed against the Notice and its requirements (see s25 of the said Act). The appeal was heard and determined by a Review Committee of the Public and Environmental Health Council (see s26 of the said Act). The Review Committee conducted a hearing in rooms at the offices of the City of Playford on 21st February 2002 and on the same day conducted a site inspection of the appellant’s premises. On 11th March 2003 the Committee in a written decision dismissed the appeal. It extended time for the appellant to comply with the requirements of the City of Playford and made some ancillary orders of its own.
In particular, the Committee upheld the City of Playford’s conclusion that the yard of the premises at 14 Shaftesbury Road, Elizabeth Vale was insanitary in the two respects set out in the Notice.
On 24th May 2002 the appellant appealed to this Court pursuant to s29 of the said Act. In his Notice of Appeal he set out the following grounds:
“1.The premises are not in an insanitary condition and the risk of infestation is an unsubstantiated theory
2.I repeatedly requested oraly (sic) & in writing that the City of Playford provide me a list of offensive items, materials, who has been offended and define the radius of the “vicinity” so far they have failed to provide me with these details.
3.Some of the items the City of Playford requires to be disposed of are not a health concern neither caused any hypothetical risk(s).
4.The requests of the City of Playford are individual(s) preferences which are imposed as law disregarding the rights of the ratepayer (occupier) as a result are harsh, unreasonable, unfair, unjust memorabilia they want me to dispose of the premises.
5.The Public & Environmental Health Council Committee should have imposed a compliance date for the City of Playford and not only to the appellant.
6.Although I have made many attempts to come to a reasonable resolution to this matter all have been fruitless.”
History of the Litigation
This matter has a considerable history. The appeal was out of time. The appellant applied for an extension of time to appeal pursuant to s42C of the District Court Act 1991. On the 14th June 2002 Master Rice refused the application. The appellant successfully appealed against that decision (Tavitian v Public and Environmental Health Council and City of Playford [2002] SADC 127 Burley DCJ 26th September 2002) (“Tavitian No. 1”). As a prelude to the appeal the appellant then issued subpoenas against both respondents. On the 10th October 2003 I set aside both subpoenas on the basis that they were an abuse of process of the Court (see Tavitian v Public and Environmental Health Council and City of Playford [2003] SADC 149) (“Tavitian No. 2”). Prior to the hearing of this appeal the appellant, by an interlocutory application, sought leave, inter alia, to have the appeal conducted by way of rehearing. That interlocutory application came on before me on the 28th November 2003 and was adjourned by me to the day on which the appeal was to be heard.
In the light of my ultimate decision in this matter, it is unnecessary to decide whether s42E of the District Court Act would enable this Court to embark upon a full rehearing in the sense of taking all the evidence again.
This appeal was argued on Monday 1st December 2003. There was some documented further evidence received by me. I reserved my decision.
Appeal Grounds
In the course of the argument as to the subpoenas and also on the appeal, the appellant contended that the Review Committee and the City of Playford were “too cosy”. He raised a number of matters which amounted to a plea that the Review Committee did not conduct the proceedings in accordance with the requirements of natural justice and in particular its conduct gave rise to an apprehension of bias.
I am prepared to treat this as part of the appeal grounds. Ground 4 would arguably embrace such a contention. In any event, subject to the respondents having adequate notice of such contentions, and not otherwise suffering any irremedial prejudice, s42E of the District Court Act would enable me to effectively treat that argument as a ground of appeal, particularly in a case such as this, where the appellant represents himself. Further, it is clear from his arguments that the appellant assumed that the nature of the appeal to this Court was a rehearing in the full sense.
So I will accept that one of the grounds of appeal was effectively as follows:
“That the decision of the Review Committee is invalid and should be set aside on the basis that the Committee failed to comply with the requirements of natural justice in that in the conduct of the hearing there arose an apprehension of bias.”
I turn immediately to the matter of apprehended bias which is the most compelling of the appellant’s arguments.
Bias
On the 19th November 2001 the appellant appealed against the Notice. The Secretary of the Council, on the 17th January 2002 emailed the local Council in the following terms:
“Jalast, Arved (DHS)
From: Jalast, Arved (DHS)
Sent: Thursday, 17 January 2002 5:48 PM
To: ‘[email protected]’Subject: appeal confirmation
Hi David
I confirm the appeal will be heard at the City of Playford on Thursday 21 February commencing at 10am. We will probably arrive at about 9.45 to set up. It should be over by 2 pm. We will bring along a transcriber to record all discussions and she will need a small table to rest her machine.
There will be 3 panel members, myself, the transcriber, Jim Dadds, Manager of our unit – making our party 6. The members will probably do an inspection of the premises and I suspect some of your council staff will come along as well after the hearing. Can you please order lunch (just sandwiches are fine) for all attending the hearing. Probably eaten after inspection.
Can you please also advice me the address and room/building where the hearing will be heard so I can let the members know as they will get their by themselves.
Thanks for your help.
Arved Jalast
Liaison Officer
Statewide Secretariat”Mr David Surrell replied in the following terms:
“Jalast, Arved (DHS)
From: [email protected]
Sent: Friday, 18 January 2002 9:12 AM
To: Jalast, Arved (DHS)Subject: Re: appeal confirmation
Arved
Thanks for that advice.
The hearing will be held in the “Gapper” training room which is situated in the Gapper building (Customer Service Centre) located on the north eastern corner of the Morialta Drive/Warooka Drive junction, Smithfield.
Travel north along the main North Road, turn left at Anderson Walk (by the Smithfield Hotel). Turn left at the traffic island into Morialta Drive and left at the next traffic island into Warooka Drive.
The entrance to the Customer Service Centre is the first driveway on the left.
Regards.
David Surrell.”
The hearing commenced at 10am on Thursday 21st February 2001. The transcript discloses that the Committee heard from three witnesses, namely:
·Mr David Surrell, who is the Environmental Health Officer of the City of Playford;
·Mr Anthony Vonderwall, who is the Planning Officer; and
·the appellant.
At 11.25 am the Committee adjourned and viewed the appellant’s premises at 14 Shaftesbury Avenue. Then it appears that the Committee returned to the premises of the City of Playford and was there provided with lunch. The appellant said he was not invited to the lunch and moreover he queried whether any officers of the City of Playford lunched with the Committee members. In the course of argument on the appeal, I asked counsel for the City of Playford, Ms Dohnt, to seek instructions as to whether the City of Playford at its expense had provided a meal to the Review Committee. Ms Dohnt said it was common practice and that in this case the City of Playford, at its expense, provided lunch for the Committee. She said in particular:
“Your Honour, I spent (sic) with the council at lunchtime and I can confirm that it’s standard practice within the council to provide lunch to any committee members that come to the council for whatever reason, and so back when the actual appeal was heard, back then, they would have provided lunch to the council. I can’t confirm whether they all sat down to lunch together but I can confirm that the council did provide lunch to their (sic) committee members.”
(see transcript p78)
I treated this as an agreed fact (113), for the purposes of the appeal and like the emails it was therefore an item of further evidence.
The Review Committee considered the evidence, including what they saw on the view, and on the 11th March 2002 published its “Decision and Reasons for Decision”. As previously indicated, it upheld the Notice of the City of Playford and so dismissed the appeal. It extended time for the appellant to comply with the requirements in the Notice and made some ancillary orders of its own.
The above factual history gives rise to questions about the regularity of the proceedings of the Review Committee of the Council, quite apart from the rightness of its decision to dismiss the appellant’s appeal.
Is Council, by its Review Committee, bound by rules of natural justice?
I pause here to examine the statutory powers of the Council in order to decide whether it is subject to the rules of natural justice.
The Public and Environmental Health Act 1987 in a comprehensive way deals with public and environmental health. It repealed the Health Act 1935, the Noxious Trade Act 1943 and the Venereal Diseases Act 1947. By the provisions in Division 2 it established the Public and Environmental Health Council (“the Council”) whose functions and responsibilities include overseeing the policing the exercise by local councils of their powers and responsibilities in the areas of:
·sanitation;
·offensive activities;
·discharge of waste; and
·pollution of water.
Part 3 of the 1987 Act sets out a range of provisions which empower local councils to take action, inter alia, to protect public health in relation to the above areas. The provisions empower the local councils, by notice in writing, to require the owners of premises or any other responsible persons to address any such perceived problems.
Division 5 of Part 3 provides the following regime for appealing against, inter alia, the requirements in such notices:
“Grounds for, and manner of, appeal
25. (1) A person may appeal against a requirement imposed under this Part.
(2)An appeal under this section lies to the Council and must be instituted by a written notice of appeal setting out, in detail, the grounds of appeal.
(3)An appeal must be instituted within 14 days of the requirement being imposed under this Part unless the Council, in its discretion, allows an extension of time for instituting the appeal.
(4) Subject to a determination by the Council to the contrary in relation to a particular appeal, where an appeal has been instituted, the requirement appealed against is suspended until the appeal has been determined or withdrawn.
(5) An appeal under this section is to be conducted as a full review of the matter to which the appeal relates.
(6) An appeal under this section must be dealt with as expeditiously as possible.
Constitution of special committee
26.(1) An appeal will be heard and determined by a review committee, constituted by the Council, consisting of -
(a)the member of the staff of the Department appointed to the Council (who will preside); and
(b)one of the members of the Council who were appointed on the nomination of the Local Government Association of South Australia; and
(c)either one of the members of the Council who were appointed on the nomination of the Minister on account of their qualifications and experience in public and environmental health or the member of the Council appointed on the nomination of the Australian Institute of Health Surveyors (South Australian Division).
(2) A decision in which two members of a review committee concur is a decision of the Council and takes effect without further action by the Council.
Proceedings of review committee
27. (1) For the purposes of dealing with an appeal, a review committee may adopt such procedures as it thinks appropriate.
(2) A party is entitled to appear personally or, with leave of the committee, by representative, in proceedings before a review committee.
(3) A review committee may proceed to determine an appeal in the absence of a party if the party has had notice of the time and place of the proceedings and fails to appear.
(4) In any proceedings before a review committee, the review committee is not bound by the rules of evidence but may inform itself upon any matter relating to the proceedings in such manner as it thinks fit.
Determination of an appeal
28.Upon hearing an appeal, a review committee may -
(a) revoke the requirement appealed against and, where appropriate, discharge any notice given to the appellant;
(b) substitute any requirement or notice that could have been made or given in the first instance;
(c) dismiss the appeal;
(d) refer the matter back to the authority for re‑consideration;
(e) make an order for costs;
(f) make any ancillary order that the committee thinks fit.”
It is clear that the rules of natural justice or procedural fairness apply to the exercise of the power conferred by the 1987 Act on the Council particularly when exercising its appellate power by its Review Committee. Its determinations plainly affect the legal rights and interests of persons appearing before it. In Annetts v McCann (1990) 170 CLR 596 Mason CJ, Deane J and McHugh J said at 598:
“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: Commissioner of Police v Tanos (1958) 98 CLR 383; Twist v Randwick Municipal Council (1976) 136 CLR 106; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; J v Lieschke (1987) 162 CLR 447; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648. In Tanos (1958) 98 CLR Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of New South Wales (1986) 5 NSWLR 338. In Kioa v West (1985) 159 CLR 550, Mason J said that the law in relation to administrative decisions “has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.” In Haoucher (1990) 169 CLR, Deane J said that the law seemed to him “to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making”.”
(see also Ainsworth & Anor v Criminal Justice Commission (1991-2) 175 CLR 564)
The procedural powers of the Council when it is exercising its appellate role through the Review Committee are robust and relaxed as can be seen by s25 to 28. However, there is no intention discernible to exclude the rules of natural justice.
The content of the rules of natural justice or procedural fairness include that the proceedings be free of bias. In particular the proceedings must not only be actually fair, unbiased and impartial, but also be seen to be so (see R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; Stollery v The Greyhound Racing Control Board (1972) 128 CLR 509; Garrihy v Wyatt (1975) 10 SASR 476; The Law of Domestic or Private Tribunals, Forbes 1st Ed 1982 ch 22).
In the case of Stollery at issue was whether an official of a Greyhound Racing Association had been bribed by the appellant Stollery. The Greyhound Racing Control Board enquired into the matter and eventually found Stollery guilty of conduct detrimental to the proper regulation and control of the sport. The official who reported Stollery to the Board remained present in the boardroom throughout not only the hearing but also the Board’s deliberations. Stollery was not present during the Board’s deliberations. The High Court held that the official’s presence during the deliberations of the Board was inconsistent with the principles of natural justice even though he did not participate in the deliberations or decisions. As a result the proceedings were held to be invalid and the decision of the Board bad. At 517‑19 Barwick CJ said:
“We are not concerned with the appellant's guilt or innocence in that connexion. What we are concerned with is the regularity of the proceedings of the Board in which he was found guilty of doing an act as charged. In my opinion, it is of the utmost importance that tribunals such as the Greyhound Racing Control Board should conduct their proceedings with scrupulous adherence to the requirements of natural justice.
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It suffices, in my opinion, for the disposal of this application to refer to and cite from R. v. Sussex Justices; Ex parte McCarthy [1924] 1 KB 256. In that case, a deputy clerk, who was a member of the firm of solicitors acting for a person concerned in the collision of motor vehicles out of which the action arose, acted as clerk to the justices and retired with them, as would be the right of the clerk, when they adjourned to consider the case. He did not take part in the deliberations or offer the justices any advice whatever. However, on an application for certiorari, the resulting conviction by the justices was set aside on the ground that there had been a departure from the requirements of natural justice. Giving judgment, Lord Hewart L.C.J. had this to say at pp. 258-259:
“It is clear that the deputy clerk was a member of the firm of solicitors engaged in the conduct of proceedings for damages against the applicant in respect of the same collision as that which gave rise to the charge that the justices were considering. It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction.”
Lush J. added (at pp. 259-260):
“It must be clearly understood that if justices allow their clerk to be present at their consultation when either he or his firm is professionally engaged in those proceedings or in other proceedings involving the same subject matter, it is irrelevant to inquire whether the clerk did or did not give advice and influence the justices. What is objectionable is his presence at the consultation, when he is in a position which necessarily makes it impossible for him to give absolutely impartial advice. I have no doubt that these justices did not intend to do anything irregular or wrong, but they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their consultation room.”
...............
The basic tenet that justice should not only be done but be seen to be done does not, of course, warrant fanciful and extravagant assertions and demands. What justice requires will ever depend on circumstances
...............
But, in my opinion, dissatisfaction engendered in the mind of an observer aware of the facts, by the continued presence of Mr. Smith in this board room, having regard to his personal connexion with the matter in hand, is not extravagant or far-fetched. As I have said, a reasonable man could very properly suspect that the clear opportunity which Mr. Smith had for influencing the decision of the Board might well have been used.”
The case of Garrihy v Wyatt also concerned the issue of apprehended bias. The case concerned a traffic offence, the trial of which took place before two Justices of the Peace. At the conclusion of evidence the Court adjourned for a view of the intersection where the offence was alleged to have been committed. The Justices of the Peace travelled to and from the scene in a police car with the prosecutor and the prosecution witnesses. Because there was no room for the defendant in the police car, he travelled to and from the accident scene in his own motor car. The defendant was eventually convicted and appealed to the Supreme Court. The Supreme Court held that in the circumstances, although there was no reason to believe that the justices had in fact been biased, there was a likelihood that the defendant might feel doubt as to their impartiality, and therefore the conviction was quashed and the complaint remitted for rehearing. At 477 and 478 Walters J said:
“I have considerable sympathy for the Justices in the situation in which they found themselves, through no fault of their own. I do not doubt their good faith, nor do I think there was actual “bias” on their part, as that word is, in law, understood. But since the test is not whether there was actual bias, but whether there was a real likelihood of bias as a matter of reasonable impression, it is unnecessary for me to investigate the state of mind of each Justice at the time when he was about to reach his conclusion on the facts. In deciding whether there was a real likelihood of bias, “the court does not look to the mind of the justice himself, or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity” (Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [1969] 1 QB 577, per Lord Denning M.R. at p.599). His Lordship continued:
“[The court] does not look to see if there was a real likelihood that he [the Justice] would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was impartial as could be, nevertheless if rightminded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.”
To the like effect are the remarks of Hodges J. in Vincent v. Curran [1909] VLR 370, where the learned Judge said:
“The authorities, I think, come quite up to this point ... that when parties reasonably suspect that they are not being fairly treated the proceedings will be upset. It is important in the public administration of justice that there should be absolute confidence in the integrity and impartiality of the Bench and in its freedom from bias.”
Above all, in the words of Lord Hewart C.J. in R. v. Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
It is not for me to inquire whether the Justices did favour the prosecution case unfairly. Even though there be nothing to indicate that they did not do justice to the case, that, of itself, is not sufficient to justify a conclusion that they were right in adjudicating upon the case. Although I am unwilling to hold, as a matter of law, that merely because a magistrate or justice travels to a scene in a court party without the defendant being in the group, the trial will miscarry, yet in the circumstances of this case, I have come to the conclusion, although not without a marked pause, that the appellant had reason to think that he was “not being fairly treated”, and that a suspicion of an inability on the part of the Justices to be impartial might reasonably have been present in his mind.”
The test for apprehended bias is whether the hypothetical fair-minded observer would reasonably apprehend that the body might not bring an impartial and unprejudiced mind to the resolution of the matter (see IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd & Anor (1999) 78 SASR 151 per Doyle CJ at 174). Or as Barwick CJ suggested in Stollery at 519, namely “What ... a reasonable man could very properly suspect ...”
Jurisdiction
The question which arises is whether this Court when exercising its appellate jurisdiction can entertain a ground of appeal which raises bias.
The material jurisdiction provision of the District Court Act 1991, namely s8 provides:
“8.(1) The Court has the same civil jurisdiction (both at law and in equity) as the Supreme Court at first instance subject, however to the following qualifications:
(a)the Court has no jurisdiction in probate or admiralty;
(b)the Court has no supervisory jurisdiction except as expressly conferred by statute with respect to inferior courts or tribunals, or with respect to administrative acts, and has no jurisdiction to grant relief in the nature of a prerogative writ.
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(3)The Court, in its Administrative and Disciplinary Division, has the jurisdiction conferred by statute.
(4)The Court has any other civil jurisdiction conferred by statute.”
The provisions of the Administrative and Disciplinary Division of Part 6 of the District Court Act provide a comprehensive scheme for hearing Administrative Appeals from the decisions of a wide range of boards, tribunals and other entities. There are numerous enactments, which in a complementary way, confer appeal jurisdiction on the Division (see Civil Procedure SA, Lunn Vol 2, p66,001).
It is inconceivable that the legislature would have intended to exclude from this appellate jurisdiction of the Court the power to intervene where there have been breaches of natural justice. The rules of procedural fairness or natural justice are an integral part of Administrative Law and frequently arise for consideration in Administrative Appeals.
A close look at the provisions making up Division 2 of Part 6 of the District Court Act demonstrates Parliament’s intention to confer generous appellate powers on the Court.
Firstly, the nature of the appeal is described by s42E which provides, inter alia, that the Court “... must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms ...” Secondly, a precondition for any appeal is that there be “a decision”. Decision is defined by s42B as, inter alia, “... a failure or refusal to make a decision or act ...” Compelling a body or tribunal to act or make a decision would ordinarily be done by an application for Judicial Review and the obtaining thereby of an order in the nature of a Prerogative Writ of Mandamus. Thirdly, the powers of the Court on appeal are broad. Section 42F provides as follows:
“42F. The Court may, on an appeal
(a)affirm the decision appealed against;
(b)rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.”
Also I note the cases of Garrihy (supra) and Stead v SGIC (1986) 161 CLR 141 accept the notion of relief for breaches of natural justice being sought in the context of an appeal as opposed to an application for Judicial Review or rather for prerogative orders. Of course I am not here expressing the view that this Court has supervisory jurisdiction. Rather, it is my view that this Court has appellate jurisdiction to grant the relief sought in this case even though the same relief might be available through the supervisory jurisdiction of the Supreme Court
With the above in mind, I turn to this case.
Conclusion – Application to this Case
I agree that the relationship between the Council by its Review Committee and the local Council appeared to be “too cosy”. The members of the Review Committee ought not to have allowed the local Council to purchase and supply them with lunch whilst they were in the throes of adjudicating upon a matter in which the local Council was an adversary. The fact that the appellant was not invited merely exacerbated the situation. The extending of an invitation to him would not have addressed the problem. Accepting a free lunch gives rise to a perception or impression of partiality.
There are other problems in this matter which by themselves might not be decisive but cumulatively they undermine the decision of the Council. The primary witness for the local Council, namely the Environmental and Health Officer, Mr David Surrell, was the person who liaised with the Secretary to the Committee in connection with the setting up the venue and timing of the appeal. The correspondence between the Secretary and Mr Surrell was on an informal first-name basis. Further, at the commencement of the hearing the Deputy Presiding Member, Mr Kevin Bucket, called upon Mr Surrell to commence the proceedings and addressed him then and throughout as “David”. As I indicated in the subpoena ruling, although proceedings need not be conducted with undue formality the use of first names in the course of a hearing is undesirable particularly if the same informality is not extended to all parties. In the subpoena ruling I was also mildly critical of the fact that the appeal was conducted in the premises of the second respondent without any prior consultation with the appellant. By itself that would not be a matter of great moment bearing in mind the obvious convenience of such an arrangement. However, I confirm that doing so should be canvassed with an appellant.
In the subpoena ruling I adverted to the mischief engendered by the above matters. As the arguments on appeal unfolded and the appellant continued to complain about what he saw as an apparently “cosy relationship” I reconsidered the position and in particular the authorities on apprehended bias. I communicated my growing unease to counsel for the respondents, Ms Beazley and Ms Dohnt, and in the midst of argument referred them to Garrihy.
In short, having further considered the evidence about these matters, I am of the view that the combination of all the above matters does undermine the regularity of the proceedings and gives rise to a reasonable apprehension of bias. I do not doubt the integrity of the Committee members and nor do I consider that there is established any actual bias. Rather, the surrounding circumstances give rise to the impression of partiality and bias and so have tainted the proceedings. So I would allow the appeal on the basis of apprehended bias.
Other grounds of appeal – Directions and Recommendations
If I am in error in allowing the appeal on the basis of apprehended bias, I would allow the appeal for a further reason alluded to by Burley DCJ in Tavitian No 1.
The first ground upon which the Notice was founded and upon which the committee based its decision, was that there was “a risk of infestation by rodents or other pests ...”. There was no evidence of actual infestation. The appellant in evidence said that the only occasion he had experienced rodents on his property was when some two years earlier he had unruly tenants in his house who left it untidy and littered with food. Clearly the local Council was reliant on the evidence of the Environmental Health Officer, Mr David Surrell, to establish this risk. In his evidence, he assumed that a risk of infestation necessarily resulted from the mere existence of the accumulated clutter. The Committee accepted that assumption. There was no allegation that the premises were filthy, such as might, without more, give rise to an inference of a risk of infestation. In my view, drawing such a conclusion from the mere accumulation of the material as depicted in the photographs is not justified as a matter of ordinary human experience, so requires specific expert evidence.
Given the appellant’s evidence, which was not rejected, the Committee was not entitled to assume the risk of infestation without testimony from a suitably qualified or experienced witness. Mr Surrell’s evidence did not go far enough.
The Committee’s conclusions as to this issue merely accepted an assumption without resolving the problem raised by the appellant’s evidence. In my view, that was an error and notwithstanding that the Committee is an expert tribunal, the error is a “cogent reason” for departing from the Committee’s decision.
The next matter of concern relates to the second ground relied upon by the local Council for giving the Notice, namely that “the condition of the premises is such to cause justified offence to the owner of land in the vicinity of the premises”. It seems that the Committee did not rely upon this ground for upholding the Notice (see Reasons p4 para 7). What is said by the Committee there is nonetheless a little unclear.
Evidence of actual complaint of offence is not a necessary precondition to giving a Notice based on s3(2)(c). It would be sufficient to found a Notice if the giving of offence to a neighbour could reasonably be inferred from evidence of the state of the premises. If there was an actual complaint then that would be evidence on which the local Council could rely. However, what actually causes offence or what is inferred from the state of the premises must be some condition which is harmful to health. As to this, I agree with the following comments of Burley DCJ at pp 6 and 7 of Tavitian No. 1:
“The New Shorter Oxford Dictionary defines “insanitary” as being “harmful to health”. The words “insanitary condition” are not defined in the Act. I turn to the question of whether or not the appellant has any arguable case on appeal. It seems to me that it is at least arguable that, to the extent that the second respondent has relied upon an assertion that “the condition of the premises is such to cause justified offence to the owner of land in the vicinity of the premises”, such reliance is ill-founded because there is no necessary relationship between a condition being harmful to health and a condition which causes justified offence to adjoining owners. This is particularly so when the nature and extent of the “justified offence” is unspecified.”
It seems clear from the Reasons that the Committee rested its decision on the ground relating to “risk of infestation by rodents or other pests”. The ambiguity of its comments at p4 para 7 of the Reasons in part probably fuelled the appellant’s repeated contention that the local Council’s case against him was a planning objection to his use of his yard disguised as a public health objection.
In canvassing this aspect of the Committee’s Reasons, I merely wish to make it clear for the purposes of the rehearing that the offence given to neighbouring land owners as per s3(2)(c) must be health related to support the giving of a Notice under s15(1). Mere unsightliness is plainly not sufficient.
Conclusion and Final Order
I allow the appeal. I rescind the decision of the Review Committee of the Council on the ground of apprehended bias. I would also allow the appeal and rescind the decision on the basis that there was not sufficient evidence of “the risk of infestation”.
I remit the appeal for rehearing before a differently constituted Review Committee of the Council.
In this matter I would add the following comments “by the way”. The photographs show premises cluttered with what can only be described as junk. It is piled high around the house, which is in what I understand to be a residential suburb. I consider that the local Council’s resolve to require the appellant to tidy up these premises as nothing less than reasonable, given its obligations to all its rate payers. I exhort the appellant to attend to what is plainly an eyesore. It is not enough to point to the fact that there is a high fence obscuring the view into the premises. Hiding the clutter does not fully address the problem, but perhaps creates another.
I will hear the parties as to costs of both the subpoena hearing and this appeal.
I warn the parties that s42G(2) makes it clear that costs do not automatically follow the event. Rather, there needs to be some unusual feature present which makes it in the interests of justice to order costs (see Moore v Registrar of the Medical Board(No. 2) (2002) 219 LSJS 448). In this case in respect of both issues, namely the subpoena argument and the appeal there is substantial justification for the position taken by all parties.
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