Willoughby City Council v Finlay - [2010] NSWLEC 184

Land and Environment Court

of New South Wales

CITATION: Willoughby City Council v Finlay [2010] NSWLEC 184

PARTIES:
PROSECUTOR:
Willoughby City Council
DEFENDANT:
Catherine Marjorie Finlay

FILE NUMBER(S): 50019 of 2010

CORAM: Biscoe J

KEY ISSUES: BIAS :- application at sentencing hearing that judge disqualify himself on ground of apprehended bias - findings of fact and credibility made by judge in earlier companion case favourable to the principal of defendant in that case to be called as prosecution witness in present case and to be contested by defendant in present case - application granted - desirability of giving notice of recusal application as soon as possible so that, if successful, the case may be heard forthwith by another judge - desirability of companion sentencing hearings being heard together, with evidence in one evidence in the other, where there are likely to be evidentiary contests between defendants.

CASES CITED: Director General Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd [2009] NSWLEC 228
Nicholls v Michael Wilson and Partners Ltd [2010] NSWCA 222
Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163

DATES OF HEARING: 24 September 2010

EX TEMPORE JUDGMENT DATE: 24 September 2010

LEGAL REPRESENTATIVES: PROSECUTOR:
Mr T Howard, barrister
SOLICITORS:
Mallesons Stephen Jacques

DEFENDANT:
Mr M Arch
SOLICITORS:
Concordia Pacific

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

24 September 2010

50019 of 2010

WILLOUGHBY CITY COUNCIL v FINLAY

EX TEMPORE JUDGMENT

1 HIS HONOUR: When this sentencing matter was called on for hearing this morning the defendant applied, without prior notice, for me to disqualify myself on the ground of apprehended bias, due to findings of fact and credibility I made in a companion case favourable to the principal of the defendant in the companion case who is to be called as a prosecution witness in this case. His evidence will be strongly contested by the defendant in the present case who had no opportunity to give evidence in the earlier case, and will bear on the resolution of material issues. I have decided that I should accede to the application.

2 Two observations may be made before I explain my reasons. The first concerns the desirability of giving notice of a recusal application as soon as possible. Although the defendant was unaware that I was assigned to hear this case until late yesterday afternoon when the Court list was published, notice of the application could have been given earlier than it was. The application for disqualification could then have been listed before 10am and, if it had been decided favourably to the defendant, arrangements might have been made for another judge to hear the case today. Because the application was not notified or made until 10am, it has been impracticable to make arrangements for the case to proceed forthwith before another judge.

3 The second observation is that this matter throws up the desirability of companion sentencing hearings on prosecutions of different defendants arising out of…

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] NSWLEC 184
Decision Date: 24 September 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Willoughby City Council prosecuted Catherine Marjorie Finlay for her involvement in the unlawful demolition of a building. Finlay, an architectural designer, was accused of authorizing the demolition. The case was heard by Justice Biscoe. The primary legal issue was whether Justice Biscoe should disqualify himself from the case due to potential bias, arising from his previous findings in a related case that were favourable to one of the prosecution's witnesses, Mr. Mayhew, whose testimony would be contested by Finlay.

Justice Biscoe considered the principles of apprehended bias, as articulated in previous cases such as Ebner v Official Trustee in Bankruptcy and Australian National Industries Ltd v Spedley Securities Limited. The judge noted that Finlay had not had the opportunity to contest Mr. Mayhew’s credibility in the earlier case. Given the relevance of Mayhew's testimony to the issues in the current case and the potential for conflicting evidence, Justice Biscoe concluded that a fair-minded observer might reasonably apprehend bias on his part. Consequently, Justice Biscoe disqualified himself from the case and directed the parties to arrange a new hearing date with another judge.

The reasoning underscores the importance of maintaining public confidence in judicial impartiality, particularly in cases where there are connections between multiple prosecutions and potential evidentiary contests. The decision highlights the necessity for timely notification of recusal applications to facilitate smooth proceedings and avoid unnecessary delays.

Orders