Vidovich v Mildura Rural City Council
[1999] VSCA 49
•15 April 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted No. 7221 of 1997
A. VIDOVICH Appellant v MILDURA RURAL CITY COUNCIL First Respondent - AND - CHAIN REACTION PTY. LTD. Second Respondent (ACN 005 690 237) - AND - P.L. & D.D. STIZZA Third Respondents - AND - G.N. & L.E. SHOLL Fourth Respondents
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JUDGES: BROOKING, PHILLIPS and BUCHANAN, JJ.A. WHERE HELD: MELBOURNE DATES OF HEARING: 12, 13 April 1999 DATE OF JUDGMENT: 15 April 1999 MEDIA NEUTRAL CITATION: [1999] VSCA 49
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NATURAL JUSTICE - Apprehended bias - Flexible principles depending on circumstances - Tribunal directions hearing held without notice to all parties - No reasonable apprehension.
ADMINISTRATIVE APPEALS TRIBUNAL - Appeal on question of law only - Notice of
appeal - Proper drafting - Whether natural justice point question of law.
TOWN PLANNING - Construction of planning permit - Pedestrian access to mall through
shop on drawing - Hours of availability.
Administrative Appeals Act 1984, s.52
Planning and Environment Act 1987, s.149A
Planning Appeals Act 1980, s.30A
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A. VIDOVICH v. MILDURA CITY COUNCIL & ORS
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APPEARANCES: Counsel Solicitors For the Appellant Mr A.G. Southall, Q.C. Hall & Wilcox with Mr S. Jones For the First Respondent Mr M. Dreyfus Maddock Lonie &
ChisholmFor the Second Mr D.J. Batt Lander & Rogers Respondent No appearance for the
Third RespondentsFor the Fourth Mr D.J. Bracken Gallagher Holcroft Respondents BROOKING, J.A.:
This appeal is brought in reliance upon s.52 of the Administrative Appeals Tribunal Act 1984 against a determination of the Administrative Appeals Tribunal, Planning Division, given on 29 August 1997. By its determination the Tribunal made a declaration pursuant to s.149A(3)(a) of the Planning and Environment Act 1987 concerning the interpretation of a planning permit issued on 30 October 1986 by the City of Mildura ("the former Council") as responsible authority administering the City of Mildura Planning Scheme. The declaration was in these terms:
"The reference to a 'notional link' in revised plans endorsed on 30 September 1987 pursuant to Planning Permit A113/86 issued by the former City of Mildura on 30 October 1986 necessitates that accessway between Langtree Mall and Eighth Avenue through Shop 1 (being Unit 1 on Plan of Strata Subdivision SP29430) must remain open for pedestrian traffic during the trading hours of such shop."
The appellant is the owner of the shop mentioned in the declaration ("Shop 1"). She was named as a respondent to the application for a declaration made to the Tribunal ("the declaration proceeding"). The first respondent is the statutory successor to the former Council, which sought and obtained the declaratory relief from the Tribunal. The second respondent is the lessee of Shop 1 and the tenant of the appellant. It was named as a respondent to the declaration proceeding. The two pairs of persons shown as the third and fourth respondents are the owners of Shops 11 and 12 respectively, the shops adjoining Shop 1, and were without objection added by the Tribunal as parties to the declaration proceeding pursuant to s.30A of the Planning Appeals Act 1980.
Shop 1 forms part of the land known as 47-51 Langtree Avenue, situate at the south-west corner of Langtree Avenue and Eighth Street, Mildura. I adopt the same convention as the Tribunal and treat Eighth Street as running north and south. Langtree Avenue is also called Langtree Mall and I shall give it the latter name. The planning permit originally authorised the redevelopment of an existing shopping
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complex into sixteen shops, in accordance with plans lodged with the application for
it. Condition 1 of the permit provided:"The layout of the site and the size of the proposed buildings and works shall be in accordance with the plan submitted with the application which when endorsed by the Responsible Authority, shall form part of this permit. The endorsed plan shall not be altered or modified (whether or not to comply with any Statute, Statutory Rule or By-Law or for any other reason) without the consent of the Responsible Authority."
There were in fact two endorsed plans. One of these, drawing SK2, included a floor plan showing an L-shaped mall or arcade within the development, with an entrance in Langtree Mall and an entrance in Eighth Avenue. This internal mall broadened out at the junction of the two arms of the L so as to form a large octagon. The sixteen shops had floor areas ranging from 50 square metres to 115 square metres.
Only about a month after it was notified of the issue of the planning permit the owner of the land sought an amendment to it. In correspondence with the former Council its architects claimed that the revised scheme remained relatively unchanged in concept. This was, I think, an optimistic claim. In the revised scheme most of the internal mall had disappeared. Both the large octagon at the junction of its two branches and the branch leading to Langtree Mall had gone. The space thus saved had been absorbed into shops. The five shops shown on the original endorsed plan (drawing SK2) as lying to the west of the internal mall had been consolidated and combined with most of the octagon to form a new shop of 762 square metres - the shop I have been calling Shop 1. The gross lettable area appears to have been increased by about one third as a result of the amendments. The responsible authority could have been forgiven for wondering whether the owner had not set out to obtain a permit by putting forward spacious plans and then to obtain a modification which, if proposed initially, might not have gained acceptance. The correspondence between the former Council and the architects was spread over about nine months. In it the Council was contending that it was important to
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preserve the concept that the internal mall or arcade was a continuation of the
existing mall in Langtree Street.
The amended plans ultimately endorsed by the former Council showed an internal mall running from Eighth Avenue about halfway into the building, in much the same position as one of the branches of the L-shaped mall in the originally endorsed plan, although the splayed entrance had been much reduced in size by increasing the floor area of the adjoining shops. The octagon and what might be called the lower or southern branch of the mall as originally proposed had gone. In their place was shown, on drawing A06, a walkway running through Shop 1 from the western or internal end of the mall to the entrance to Shop 1 in Langtree Mall.
Although it changes direction several times, this walkway first runs in a westerly direction into Shop 1 from the end of the mall and then runs substantially in a southerly direction down to Langtree Mall. The second of the amended drawings ultimately endorsed by the former Council describes it, by a notation near its southern end, as "Notional link between Mall and Eighth Street". I have no doubt that the Mall there referred to is Langtree Mall, that is, the same mall as that mentioned in the notation on the same drawing "Paved Entries (sic) to match Mall paving". This is accepted by counsel arguing in support of the appeal. The notation concerning the walkway through Shop 1 would not make sense if "Mall" meant the internal mall or arcade, for that mall itself runs directly out of Eighth Street.
The first respondent informed the Tribunal without objection, and so it may be taken to have been accepted, that, in each of the sets of drawings submitted to it by the architect in attempting to obtain the endorsement of amended drawings, the walkway through Shop 1 bore the notation "Tiled walkway providing notional link between Langtree Mall and Eighth Street".
| 9 | I forbear from quoting passages from the correspondence, and say only that it is manifest that the architect was trying to persuade the Council that the walkway or "notional link" in Shop 1 was just as satisfactory as the originally proposed southern |
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branch of the mall or arcade in serving a means of access to the proposed development and in constituting, together with the internal mall or arcade, an extension of the existing Langtree Mall. The owner and the tenant of Shop 1 now wish to depart from the position taken up by the applicant for the planning permit.
It was on 30 September 1997 that the former Council endorsed the amended plans for the proposed development on the land. By planning permit dated 2 June 1988, it gave planning permission to strata subdivide the land into twelve shops in accordance with the amended endorsed plans attached to the permit. The internal mall is shown on the plan of subdivision as part of the common property.
After the construction of the shopping complex, the second respondent commenced occupation of Shop 1 as lessee of the appellant. In about March 1997 the second respondent began periodically closing, during trading hours, a steel roller door located on the north-east side of Shop 1, at the western end of the mall leading to Eighth Street. This was objected to by the owners of Shops 11 and 12, being (as I have said) the four persons who have been described as the third and fourth respondents. In these circumstances the first respondent, being statutory successor to the former Council, commenced the declaration proceeding on 9 July 1997. This asked the Tribunal to declare that the obstruction of the "notional link" between Shop 1 and the mall by the erection and closing of a roller door which prevented access to it, or egress from the mall by the general public, amounted to a breach of the planning permit, or to make some other appropriate declaration. Two other proceedings were before the Tribunal, an application for a declaration pursuant to s.14 of the Planning Appeals Act 1980, filed on behalf the present appellant and a request to amend the planning permit pursuant to s.87 of the Planning and Environment Act, filed on behalf of the present third and fourth respondents, as I shall continue to call those four persons.
| 12 | The three proceedings came on for hearing before the Tribunal on 22 August 1997. The third and fourth respondents were thereupon made parties to the declaration proceeding by the Tribunal, pursuant to s.30A of the Planning Appeals Act |
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1980. The Tribunal then informed the parties that following receipt by it of the application for review filed by Maddock Lonie & Chisholm, solicitors for the first respondent, on 14 July 1997, Mr Finanzio (who was then a solicitor employed by that firm) had been summoned by the Tribunal to appear before it on 18 July 1997. In view of the importance of the matter, I shall quote at length from the account given in the reasons for decision of the Tribunal:
"The Tribunal informed the parties that following receipt of the appeal lodged by Maddock Lonie & Chisholm, Solicitors, on 14 July 1997, that (sic) Mr Finanzio of that firm was summoned to appear before the Tribunal to explain and clarify the two plans endorsed to Permit No P113/86 by the City of Mildura. It appears that on 30 October 1986 plans were endorsed to the permit indicating sixteen shops in a development at the corner of Eighth Avenue and Langtree Streets, Mildura, linked by an "L" shaped mall linking these two streets. On 30 September 1987 amended plans were endorsed showing a configuration with twelve shops with a truncated area shown as a mall off Eighth Street with what appeared to be a connecting passageway through an area shown on the plan as Shop 1. The later plan did not show any north point nor any abuttal to named streets.
The Tribunal explained that the purpose of requiring Mr Finanzio's attendance at the Tribunal was to explain the street layout and the configuration of the second of the endorsed plans and how it related to the earlier plan so that it could be established who might be affected by the application for the declaration.
After Mr Finanzio explained the correlation between the two plans the Tribunal indicated that it was satisfied with his explanation and the following are notes made by the Presiding Member at that time:-
'The Tribunal is of the view that copies of the Application should be served on all of the 'smaller' tenants whose interests are or may be affected and that they should be informed of the time and place of the hearing.
Directions
1. Responsible Authority is to advise the Tribunal the names and address of all tenants so affected.
2. The Responsible Authority is to serve a copy of the application on all such persons and advise them that they will each be notified in due course by the Tribunal of the time and place of the hearing.
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3. When the list of names and addresses is supplied by the
Responsible Authority notice of the hearing for Friday
22 August 1997 is to be sent to all addressees.'"
Again, in view of the importance of the matter, I quote at length from the affidavit of Mr Finanzio in so far as it deals with the point:
"4. ... on or about 16 July 1997 I was contacted by the Assistant Registrar of the Tribunal, Ms Jenny Phillips, who advised me that I was required by Deputy President Ball to attend a directions hearing in relation to procedural matters arising from the material which accompanied the Application. I was advised that the other parties to the Application would not be present. I expressed concern that such a directions hearing was proposed to be conducted in the absence of the other parties. I was advised that Deputy President Ball had only minor concerns or queries relating to the two plans accompanying the Application and that such a matter would be better resolved in person, rather than by written correspondence. I was advised that Deputy President Ball was of the opinion that it would be unnecessary to require the presence of the other parties.
5. In accordance with its request, I appeared before the Tribunal on 18 July 1997. I took brief notes at this hearing. My attendance before the Tribunal was for a duration of not more than 15 minutes. Now produced and shown to me marked "AJF1" is a copy of my notes of that hearing.
6. The hearing was conducted before Deputy President Ball and Mr Barr (Member). At the commencement of the hearing I expressed concern about conducting a directions hearing in the absence of all the parties. Deputy President Ball assured me that the purpose of the hearing was to clarify some of the material accompanying the Application. In particular, both Tribunal members queried the relationship between the two floor plans which were annexed to the Application. I explained that the plan marked "SK2" dated August '86 ("the First Plan") accompanying the Application was a plan endorsed by the City of Mildura on 30 October 1986 in accordance with Planning Permit No.P113/86 ("the Planning Permit"). I further explained that the plan marked "AO6" dated September '87 ("the Second Plan") was a plan endorsed by the City of Mildura on 30 September 1987, amending the layout of the development permitted to be constructed by the Planning Permit.
...
10. Deputy President Ball explained that its difficulty arose because the Second Plan was deficient in two respects:
(a) the absence of a "north" orientation; and
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(b) the absence of street names which might have assisted in orientation.
11. The members of the Tribunal asked whether I could inform the Tribunal as to the way the Second Plan should be read with the First Plan. I advised that this was something which, in preparing the Application, I myself had had difficulty with. I advised the Tribunal that my instructions were that if the Second Plan was held in the upside down position, then both plans would be comparable in terms of the floor layout and orientation. Upon examination Mr Barr agreed and concluded the matter by marking "north" on the Second Plan. The Tribunal then advised that it intended to conduct an inspection of the site prior to the full hearing, as Mr Barr would be in Mildura prior to the hearing and it would be convenient for him to do so. I made no notes in relation to these matters.
12. Following my explanation of the relationship between the two plans, Deputy President Ball explained that the purpose of the directions hearing was to clarify this matter in order that the Tribunal could make an assessment as to which of the shop tenancies would be affected by the Application, and therefore which persons should receive notice of the Application.
13. Deputy President Ball stated that, in the circumstances an ex parte hearing was appropriate given that the issues at the directions hearing were very minor (related only to the Tribunal clarifying a matter arising out of the material accompanying the Application)."
The deponent then deals with the directions given. These are summarized in his contemporaneous note, Exhibit "AJF1". The newspaper Law List for 18 July 1997 listed for hearing at 9.30 a.m. "A. Vidovich & Ors v. Mildura City Council".
The Tribunal's refusal to disqualify itself has been challenged by way of appeal, not by way of judicial review. Where judicial review is sought on the ground of denial of natural justice, additional material may be placed before the court: Craig v. South Australia (1995) 184 C.L.R.163 at 176. We have before us, as mentioned, an affidavit by Mr Finanzio, dealing with what happened shortly before and at the hearing of 18 July 1997. We drew the attention of the parties to the fact that they were all inviting us to the consider the correctness of the decision of the Tribunal in the light of material which included an affidavit which was not before the Tribunal and which dealt with events which the Tribunal had been called upon to consider in
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ruling upon the application that its members disqualify themselves. All counsel
were content that we should proceed upon this basis.
I return to what took place on 22 August 1997. After the Tribunal had disclosed what had taken place on 14 and 18 July 1997, it informed the parties that the two other proceedings before it would be adjourned to a date to be fixed. Mr Gobbo, counsel for the second respondent to the present appeal, thereupon told the Tribunal that his client was most concerned that it had convened an ex parte hearing without notice to the other parties. He submitted that the Tribunal should disqualify itself from further hearing the proceedings, since in circumstances where it had heard from Mr Finanzio in the absence of the other parties there was a reasonable apprehension of bias. He referred to The City of St Kilda v. Evindon Pty Ltd & Ors [1990] V.R.771. Mr Jones, counsel for the present appellant, supported Mr Gobbo's application. It was opposed by the other parties. After a short adjournment the Tribunal dismissed the application, giving the following ruling:
"We have been asked by Mr Gobbo on behalf of his client Chain Reaction Pty Ltd to disqualify ourselves and arrange for another Division of the Tribunal to hear and determine this appeal on the basis of apprehended bias arising from our meeting with Mr Finanzio who acts for the Applicant/Responsible Authority, in the absence of any other parties.
We have decided that in the circumstances of this case that we will not accede to this request:
We do so on the following basis:-
1. We have explained clearly to all parties before the commencement of the hearing why we asked Mr Finanzio to attend before the Tribunal to clarify the orientation and correlation of the two amending sets of plans endorsed to the relevant permit.
2. We have said that at no time did any discussion take place with Mr Finanzio as to the meaning or effect of any aspect or detail of the plans.
3. We, at the time when Mr Finanzio was called before the Tribunal were not aware of the identity of any of the owners and occupiers of any of the other shops in the overall development and sought this information from Mr Finanzio in order to arrange for service of copies of the application on all relevant parties.
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Those steps could have been taken by a staff member by correspondence with the parties or by telephone without any suggestion of perceived bias.
4. We agree with Mr Pitt that this is not a situation as in the Evindon case that the appeal was heard and determined before the parties became aware of the contact between one of the parties and a Tribunal member.
In this case all parties will have the opportunity to make submissions to the Tribunal as to the meaning and effect of the endorsed plans.
5. To delay the hearing of these proceedings might prejudice Mr Pitt's clients and we believe his clients' interests are best served by proceeding today with this hearing.
On the other hand we do not believe Mr Gobbo's or Mr Jones' respective clients will be prejudiced in any way by us proceeding to hear the merits of this appeal.
In the circumstances the application is dismissed."
Mr Jones then submitted that there was no power to grant the declaratory relief sought. In the course of his argument against this submission, Mr Finanzio sought an amendment so as to seek a declaration as follows:
"The reference to a 'notional link' in revised plans endorsed on 30 September 1987 pursuant to Planning Permit A113/86 necessitates that accessway between Langtree Mall and Eighth Street remain open for through pedestrian traffic."
The Tribunal ruled against the submission made by Mr Jones and granted the amendment. The hearing then proceeded. I do not summarize the further points taken and argument advanced. Much of the debate concerned the meaning to be assigned to the notation on the drawing, "Notional link between Mall and Eighth Street". The Tribunal reserved its decision on 22 August and published its written determination on 29 August 1997. Its formal determination was to grant the declaration set out near the beginning of these reasons, which I shall for convenience set out again:
"The reference to a 'notional link' in revised plans endorsed on 30 September 1987 to Planning Permit A113/86 issued by the former City of Mildura on 30 October 1986 necessitates that accessway between Langtree Mall and Eighth Avenue through Shop 1 (being
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Unit 1 on Plan of Strata Subdivision SP29430) must remain open for pedestrian traffic during the trading hours of such shop."
The right of appeal invoked in this case is on a question of law. The drafting of the present Notice of Appeal can be criticized. I refer to what was said by Phillips, J.A. in State of Victoria v. Bacon & Ors [1998] 4 V.R. 269 at 285-6. Quite apart from drafting, I am by no means clear that all the questions which the appellant wishes to agitate are questions of law, but I shall assume in her favour that they are, doing no more than make one or two brief remarks and note, as regards the natural justice point, the following cases: Escobar v. Spindaleri (1986) 7 N.S.W.L.R. 51; Roads Corporation of Victoria v. Costa, unreported, Court of Appeal, 27 November 1996; Barton v. Estate Agents Licensing Authority [1998] 1 V.R.164 at 170-1; Field v. Secretary to the Department of Human Services, unreported, Court of Appeal, 1 June 1998, at pp.6-8 in the judgment of Batt, J.A. A possible view is that whether a natural justice point raises a question of law within the meaning of s.52 depends upon the nature of the point. One matter discussed with Mr Southall, senior counsel for the appellant, was whether in a case like the present the question of reasonable apprehension of bias should be viewed as one of law. It has been said that this question can be a difficult one involving matters of degree and that the particular circumstances may strike different minds in different ways: Re Shaw; Ex parte Shaw (1980) 55 A.L.J.R. 12 at 16 per Aickin, J.; Livesey v. New South Wales Bar Association (1983) 151 C.L.R. 288 at 294; Re J.R.L.; Ex parte C.J.L. (1986) 161 C.L.R. 342 at 359 per Wilson, J. One would not ordinarily say of a question of law that its resolution may involve matters of degree or that particular circumstances may strike different minds in different ways. But I shall assume for the purposes of this case that the question is one of law. I say nothing about the requirement that the question be "involved" in the decision.
I turn first to the complaint of reasonably apprehended bias, which the appellant put at the forefront of her case. I can well understand the difficulty experienced by the Tribunal in understanding how the amended drawings differed from those which had been originally endorsed and so in determining which persons should be given notice. I have adopted the convention that Eighth Street runs north
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and south. In fact it runs approximately north-west and south-east. Drawing SK2 - the drawing originally endorsed, showing the L-shaped mall with its large octagonal area at the junction of the two branches - shows Eighth Street (misnamed Eighth Avenue) as running east and west and shows Langtree Mall at the top of the drawing, ignoring the convention that the top of a plan lies to the north. The amended drawing SK23 correctly shows the points of the compass in relation to the building but does not show by name either Eighth Street or Langtree Mall. The amended drawing AO6 does not show the points of the compass or identify as such the two streets (Eighth Street and Langtree Mall) and the lane or "right of way" which bound the land on three sides. Both drawing SK23 and drawing AO6 show what is in fact Langtree Mall at the bottom of the drawing, so that they are both upside down when compared with the original drawing, SK2. To all these possible sources of confusion is to be added the contrast between the L-shaped mall shown in the earlier drawing, with its spacious octagon and large splayed entrances, and the single rectangular mall, with its much reduced splayed entrance and its narrow, angular snake-like continuation within the new Shop 1. It is entirely understandable, in view of the way in which the owner's architect had prepared the drawings, that the Tribunal should have had great difficulty in understanding what the question was and who might be affected by its resolution.
Heavy reliance was placed on The City of St Kilda v Evindon Pty Ltd [1990] V.R. 771 in support of the appeal. The principles of law are not in dispute so far as the matter of reasonable apprehension of bias is concerned, the question being the effect of their application.
In the present case the circumstances were unusual. The Tribunal was, in July 1997, trying to make head or tail of the drawings in order to decide who should be given notice of the responsible authority's application for a declaration. It was not even clear which way up one drawing should be held in relation to another. Of course the state of the papers cannot excuse what is truly a failure to accord natural
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justice, but one must not misapply the principles of natural justice so as to bring
about a result the very opposite of what they seek to achieve.
In the field of planning responsible authorities perform a number of roles. They administer. They adjudicate. They litigate. Of course their unusual position does not relieve them, or a tribunal before which they are a litigant, from scrutiny when it is said that some communication between tribunal and authority would provoke a reasonable apprehension of bias on the tribunal's part. The uncontradicted evidence is that it is standard practice for the Tribunal to obtain information in relation to proceedings before it from the responsible authority, especially as to the names and addresses of persons likely to be affected by the proceedings. In this case the Tribunal was concerned to ensure that notice of the declaration proceeding should be given to persons who, being affected by it, might legitimately wish to be heard. The application lodged by the responsible authority in fact named as respondents the owner and tenant of Shop 1. It asserted that solicitors acting on behalf of shop tenants affected by the closing of the roller door had contacted it, seeking to register their complaint. By s.149A(2) of the Planning and Environment Act as then in force:
"(2) In addition to any other party to the proceeding under the Planning Appeals Act 1980, if a matter is referred to the Administrative Appeals Tribunal under this section, the parties to the proceeding before the Tribunal are -
(a) the person who referred the matter; and
(b) any person who made or failed to make a decision in relation to the matter; and
(c) the responsible authority."
In the present case the person who referred the matter and the responsible authority were one and the same, and (as is accepted) the case was not one in which paragraph (b) of s.149A(2) had any application. Although the application for a declaration named the owner and tenant of Shop 1 as respondents, they were not,
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strictly speaking, at that stage parties to the proceeding. It was for the Tribunal to
determine who should be parties to the application in addition to the applicant.
The fact that the owner and tenant of Shop 1, although named as respondents to the application, were not, strictly speaking, parties in July 1997 does not mean that their position is to be ignored in considering whether the principles of natural justice have been infringed. (No doubt because they were named as respondents to the application, those two persons were during the hearing of the application treated by all concerned as parties to it, although it would seem that, strictly speaking, an order should have been made under s.30A of the Planning Appeals Act). It was clear from the title to the application and from the body of the application that the owner and tenant of Shop 1 had a substantial interest in opposing the application and could be expected to oppose it. They say, as they said before the Tribunal, that it was wrong for the Tribunal to convene on 18 July 1997 and hear from the responsible authority without giving them notice of its intention to do so. It has not been and could not be suggested that the notification in the Law List in the newspapers amounted to notice to them of the hearing.
The province of natural justice is very large and within it the region belonging to bias is itself extensive. Cases of suggested apprehended bias may vary widely in their circumstances. The principles of natural justice are not to be found in a fixed body of rules to be applied inflexibly at all times and in all circumstances. What natural justice requires depends upon the particular circumstances of the case: Livesey v. New South Wales Bar Association (1983) 151 C.L.R. 288 at 299-300. Where reasonable apprehension of bias is relied upon it must be firmly established: R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R. 546 at 553; R. v. Watson; Ex parte Armstrong (1976) 136 C.L.R. 248 at 262; Re Shaw; Ex parte Shaw (1980) 55 A.L.J.R. 12 at 14 per Gibbs, A.C.J.; Re J.R.L.; Ex parte C.J.L. (1986) 161 C.L.R. 342 at 352 per Mason, J., 359-60 per Wilson, J. and 371-2 per Dawson, J. A tribunal asked to disqualify itself on this ground should not accede too readily to the application, and should carefully consider whether the grounds
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advanced are sufficiently strong to make out a case: Re Polites; Ex parte Hoyts
Corporation Pty Ltd (1991) 173 C.L.R. 78 at 86.
This is not a case of a telephone call most injudiciously made by counsel on a Sunday morning to a deputy president at his home. The Tribunal, through its assistant registrar, requested the applicant, which was at that stage the only party (although the application identified and treated as parties two other persons interested) to attend a formal public hearing to enable it better to understand confusing drawings forming part of the application, so that it could take steps to ensure that all persons interested were notified of the application. Mr Finanzio, displaying a commendably prudent and proper attitude, raised, both with the assistant registrar and with the Tribunal, the question whether the matter should be dealt with in the absence of the persons named as respondents. The additional safeguard afforded by Mr Finanzio's alertness to a possible problem and his communication of his concern to the Tribunal bears on the view which should be taken of what a fair-minded and informed observer might reasonably apprehend.
Moreover, the present case is somewhat unusual, in that there was an early disclosure by the Tribunal to persons affected of what had taken place in their absence. Two passages from Re J.R.L.; Ex parte C.J.L. (1986) 161 C.L.R. 342 may be cited. Of the majority, Mason, J. said, at 351:
"As McInerney, J. pointed out, the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge."
Of the minority Dawson, J. observed, at 372:
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"Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures. It is clear that an initial failure to hear a party or to allow him to put his case may be cured by giving him an appropriate opportunity to be heard at a later stage: See Ridge v. Baldwin. It seems to me to follow that it must also be possible to remove an apprehension of bias on the part of a judge which might otherwise arise out of the failure to hear a party. After all, that kind of bias is not bias through interest or preconceptions existing independently of the case. Suspicion of bias of the latter kind, where there are grounds for it, may well be ineradicable: See Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd. Here the suggested bias is an inability to act impartially which is said to have been demonstrated by the fact that representations were made to, or evidence was heard before, the judge in the absence of the parties. Remembering that both parties were absent at the time, it does not seem to me to have been a situation which was necessarily incapable of correction either as regards fairness or as regards the appearance as well as the fact of impartiality." (Footnotes omitted.)
Having considered all the arguments advanced, and the ruling of the Tribunal, I am not persuaded that it erred in concluding that it should not disqualify itself on the ground of reasonable apprehension of bias.
The next question is that of the proper construction of the permit. I have no doubt that on a proper understanding of the amended drawings, considered by themselves, they show a pedestrian walkway running through Shop 1, as the Tribunal concluded. If recourse may be had to the correspondence, the matter is clear beyond argument, but the authorities show that in a case like the present one should proceed, as the Tribunal did, without recourse to the correspondence. The cross-hatching on drawing AO6 shows that the serpentine walkway through Shop 1 is to be paved in the same way as the internal mall, the entrance to the walkway from Langtree Mall and the entrances to other shops from Langtree Mall and Eighth Street. The cross-hatching on drawing SK23, together with the notation requiring paved entries to match the paving in Langtree Mall, shows that there is to be uniform paving of the external entrances to shops, of the walkway through Shop 1 and of the internal mall and that this paving is to be the same as the paving in
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Langtree Mall itself. A broken line marks the point where the internal mall begins and the walkway in Shop 1 ends. While dimensions are not given, the location of the walkway, with its several changes of direction, can be ascertained by scaling off.
Much attention was directed, both below and before us, to the notation on drawing SK23, "Notional link between Mall and Eighth Street". The responsible authority's case does not by any means rest solely upon this notation. It is the word "notional" that has provoked argument and reference to dictionary definitions. In my opinion the use of the word is explicable as reflecting the unusual character of the walkway as a defined and available passage within a shop. If what is shown on the two drawings as a hatched and carefully defined passage is not intended to be a walkway available to members of the public, then I do not know what it can be said to be. At one stage Mr Southall even assented to the suggestion that in his submission it was intended to be decorative only, like a mosaic, and that it had nothing to do with the passage of persons.
Then it was said in support of the appeal, that the drawings SK23 and AO6 did not enable one to ascertain during what hours the passage through Shop 1 was to be open to the public. Mr Southall submitted that if, contrary to his contention, the drawings did show a walkway and not a mere decorative mosaic, the correct conclusion was that the hours of availability were entirely at the discretion of the occupier of Shop 1, so that it might raise and lower the portcullis whenever it chose to do so. But this would make the walkway illusory as a facility. I agree with the Tribunal that the correct view is that the walkway must be kept open during the trading hours of Shop 1.
Mr Southall criticised the reasoning of Tribunal as making an impermissible use of the original drawing SK2 in support of the view that the permit always contemplated pedestrian access through the building between Langtree Mall and Eighth Street. But the soundness of this criticism need not be determined, for in my view the amended drawings, without recourse to the original drawings, show that a serpentine walkway through Shop 1 is to be available during its trading hours.
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I reject the remaining grounds of appeal. Since the arguments advanced in support of the appeal are sufficiently recorded in the written outlines of submissions, I will content myself with saying that, having considered each of them, I find them all to be without substance and with saying in particular that I have no doubt that the Tribunal has not declared that an easement exists. The effect of the planning permit was not to create an easement over Shop 1, any more than a planning requirement for the provision of parking spaces does so. I record the fact that the appellant abandoned the contention (not advanced below) that, if the permit did impose the condition derived from it by the Tribunal, that condition was beyond power.
I think we must dismiss the appeal and affirm the decision of the Tribunal.
PHILLIPS J.A.:
I agree. I would, however, add this.
In the course of argument two issues were identified as raised for determination on this appeal. The first, that the Tribunal ought properly to have regarded itself as disqualified from hearing and determining the application because its conduct in summoning the Council to an ex parte hearing gave rise to a reasonable apprehension of bias. The second, that the Tribunal had misconstrued the permit issued on 30 October 1986 when interpreted in conjunction with the revised plans endorsed on 30 September 1987. The second, it was submitted, was a question of law; that is, the construction of the permit. The first was also said to raise a question of law, notwithstanding that it stems from what would seem to be a fact, namely a reasonable apprehension of bias. I mention this not in order to express any opinion on these submissions, but because, though this appeal was subject to the requirements of Order 4 of Chapter II of the Rules, including Rule 4.17(1)(b)(iii) which required that the Notice of Appeal set out the question of law upon which the appeal was brought, neither of the questions which I have just referred to were identified in the Notice of Appeal as the questions of law which the appellant
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claimed were raised on the appeal. Instead, the grounds of appeal alleged that the Tribunal erred in one way or another, and these grounds were simply repeated as indirect questions prefaced by the word "whether". That course is scarcely helpful as a means of identifying the relevant questions of law. Indeed, what was said in the Notice of Appeal tended to cloak them, rather than identify them.
In my opinion, it is particularly important that the questions of law be properly and sufficiently identified by the appellant at a reasonably early point of the proceeding when the only appeal authorised by the statute is an appeal on a question of law.
BUCHANAN, J.A.:
I agree.
BROOKING, J.A.:
Gentlemen, the question of costs. Perhaps I should say that subject to anything that counsel may say, our present view is that we should order the appellant to pay the costs of the appeal of the respondents other than the respondent Chain Reaction Pty Ltd, which should be required to abide its own costs on the basis that it was brought here as a respondent but has unsuccessfully argued in support of the appeal.
(Discussion ensued).
The order of the Court is as follows:
Appeal dismissed. Decision of Tribunal affirmed.
Order that appellant pay costs of appeal of respondents other than respondent Chain Reaction Pty Ltd, which shall abide its own costs.
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