Winky Pop Pty Ltd v Hobsons Bay City Council

Case •

[2007] VSC 468

•

16 November 2007
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8829 of 2007

WINKY POP PTY LTD AND
OR AUSTRALIA PTY LTD 		Plaintiffs
V
HOBSONS BAY CITY COUNCIL Defendant

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JUDGE:

KAYE J

WHERE HELD:

Melbourne

DATE OF HEARING:

9 November 2007

DATE OF JUDGMENT:

16 November 2007

CASE MAY BE CITED AS:

Winky Pop Pty Ltd & Anor v Hobsons Bay City Council

MEDIUM NEUTRAL CITATION:

[2007] VSC 468

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ADMINISTRATIVE LAW – Decision by resolution of council under s 27 of Planning & Environment Act 1987 in respect of report of panel – Councillor who had made submission and appeared before panel voting on resolutions – Whether conflict of interest contrary to Local Government Act 1989 (Vic) s 77B – Natural justice – Whether councillor biased – Availability of certiorari.

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APPEARANCES:

 Counsel Solicitors
For the Plaintiffs Mr A.J. Finanzio and
Mr M.A. Belmar Salas 		Best Hooper
For the Defendant Mr R Appudurai Russell Kennedy

HIS HONOUR:

  1. The plaintiffs are the registered proprietors of a parcel of land comprising 7.64 hectares within the City of Hobsons Bay.  As such the plaintiffs’ land is subject to the City of Hobsons Bay Planning Scheme.  In these proceedings the plaintiffs claim declarations that resolutions of the defendant council made on 14 August 2007 as to an amendment to the planning scheme are invalid, and they claim prerogative relief in the form of certiorari, prohibition and mandamus in respect of those resolutions. 

  1. Under the existing planning scheme the plaintiffs’ land is zoned industrial 3.  The plaintiffs purchased the land in April 1998 intending to develop it for industrial use.  On 23 February 2006 the defendant council, in its capacity as the planning authority under the Planning & Environment Act 1987 (“the Act”), gave notice of its preparation of Amendment C 33 to the planning scheme pursuant to s 19 of the Act.  That amendment proposes, inter alia, to introduce into the planning scheme a strategic plan, which identifies appropriate land for residential development which is currently zoned for industrial purposes.  The intended effect of Amendment C 33 and the strategy is to identify land appropriate for rezoning from industrial to residential.  In the strategy that land is designated as being within a “strategic redevelopment area”.  Following the publication of the defendant’s notice, 58 submissions were lodged with the council concerning the proposed amendment.  Subsequently Councillor Hemphill also lodged a submission with the council.  On 10 October 2006 the council met to “consider” all the submissions made in relation to Amendment C 33 and to consider a motion to refer the various submissions to a panel for consideration in accordance with s 23 of the Act.  Councillor Hemphill declared that he had a conflict of interest, but did not disclose the nature of that conflict.  The council resolved to refer all submissions, including Councillor Hemphill’s submission, to a panel for consideration.

  1. Subsequently, in March 2007, Councillor Hemphill appeared as a submittor before the panel.  He made a series of submissions contending for particular outcomes, including the exclusion of the plaintiffs’ land from the strategic redevelopment area.  On 2 July 2007 the panel provided its report to the defendant council. 

  1. On 14 August 2007 the council met to consider the panel report.  The first motion before the council was a motion to prepare a revised version of the strategy which effectively included, within the strategic redevelopment area, the land owned by the plaintiffs.  That motion was defeated by a vote of four to three.  Councillor Hemphill voted with the majority to defeat the motion.  The second motion before the council was a motion to prepare a revised version of the strategy, which effectively excluded from the strategic redevelopment area the land owned by the plaintiffs.  That motion succeeded by a vote of four to three.  Councillor Hemphill voted with the majority in support of the motion. 

  1. In these proceedings the plaintiffs challenge the validity of the two resolutions of the council, on the basis that Councillor Hemphill was not entitled to participate in the vote at all on the motions, and if he had not participated the result would have been different.  The plaintiffs’ claim is made on two principal bases, namely:

(a)That Councillor Hemphill was disqualified from voting on the two resolutions because he had a conflict of interest pursuant to s 77B(b) of the Local Government Act 1989.

(b)That Councillor Hemphill had prejudged the issues for consideration in relation to Amendment C 33 and, for that reason, the proceedings before the Council on 14 August 2007 failed to comply with the requirements of natural justice.

Planning & Environment Act 1987

  1. It is necessary first to summarise the statutory framework in which the matters came before the Council.  The Act provides for the approval and implementation of planning schemes which are to govern the use and development of land in the State.  Each scheme must seek to further the objectives of planning in Victoria within the area covered by the scheme, and must contain a municipal strategic statement[1].  The scheme may also set out policies and specific objectives[2].  In accordance with the Act, the Hobsons Bay Planning Scheme contains (inter alia) the State Planning Policy Framework and also the Local Planning Policy Framework. 

    [1]Section 6(1)(a)(aa).

    [2]Section 6(2)(a).

  1. Part 3 of the Act provides for the amendment of planning schemes.  Section 19 provides for the giving of notice by a planning authority of its preparation of an amendment to a planning scheme.  Section 20 enables the Minister to exempt a planning authority from that requirement.  Under s 21 any person may make a submission to the planning authority about an amendment of which notice has been given under s 19.  Section 22 requires the planning authority to consider all such submissions.  Section 23(1) provides that, after considering a submission which requests a change to the proposed amendment to the planning scheme, the planning authority must either change the amendment in the manner requested, or refer the submission to a panel appointed under Part A to the Act, or abandon the amendment or part of the amendment.  Section 23(2) provides that a planning authority may refer to the panel submissions which do not require a change to the proposed amendment. 

  1. Section 24 of the Act provides that the panel must consider all submissions referred to it and give a reasonable opportunity to be heard to any person who has made a submission referred to it.  Section 25 provides that the panel must report its findings to the planning authority.  Under s 26, the planning authority is required to make the panel’s report available to the public.  Section 27(1) is of central importance to these proceedings, and provides:

“The planning authority must consider the panel’s report before deciding whether or not to adopt the amendment.”

  1. Section 29 provides that a planning authority may adopt the amendment, with or without changes.  In such an event, s 31(1) provides that the planning authority must submit an adopted amendment to the Minister together with prescribed information.  Section 34(1) provides that the Minister may allow any person affected by a change to an amendment to make a submission to the Minister on the change.  Under s 35(1) the Minister may approve an amendment with or without changes, and subject to any conditions the Minister wishes to impose, or refuse to approve the amendment or part of the amendment.  If the Minister approves of an amendment, the Minister must, within 10 days, cause notice of every such amendment to be laid before each House of Parliament[3].  Such an amendment may be revoked, either wholly or in part, by a resolution passed by either House of Parliament within 10 days after the notice of approval of the amendment is laid before that House[4].

    [3]Section 38(1).

    [4]Section 38(2).

  1. Section 39(1) provides that a person, who is substantially or materially affected by a failure of the Minister, a planning authority, or a panel, to comply with Divisions 1 or 2 of Part 3 of the Act or Part 8 in relation to an amendment which has not been approved, may refer the matter to the Victorian Civil and Administrative Tribunal (“the Tribunal”) for its determination. 

The proposed amendment

  1. It is necessary to return to the facts in a little more detail.  The notice of the proposed amendment C 33, given by the defendant council on 23 February 2006, proposed implementing key strategic documents regarding the use and development of industrial land within the municipality.  The key strategic documents referred to in the amendment are the Hobsons Bay Industrial Land Management Strategy 2006 (“the 2006 Strategy”) and the Hobsons Bay Industrial Development Design Guidelines February 2006 (“the 2006 Guidelines”).  The 2006 Strategy contained a section in relation to “precinct 13”, in which the plaintiffs’ land is located.  In April 2006 the plaintiffs, through their solicitors, made a submission to the council requesting a change to the exhibited amendment, so that the recommendations in the February 2006 strategy should more expressly articulate the objective that the part of precinct 13, which contained the plaintiffs’ land, be largely rezoned to facilitate future residential development.  Subsequently a council meeting was scheduled for 10 October 2006.  On 8 October, Councillor Hemphill lodged a written submission with the council concerning the exhibited amendment to the planning scheme.  The submission related principally to precinct 13.  Councillor Hemphill stated that he supported the proposal to keep the northern end of that precinct (which contained the plaintiffs’ land) as industrial 3 zoning, and the southern section as being left available as a strategic redevelopment area. 

  1. The agenda for the council meeting for 10 October 2006 identified, as a major issue for discussion, whether the area, which included the plaintiffs’ land (and which was referred to as “the Akuna Drive precinct”), should be redeveloped for residential or industrial purposes.  When the matter came before the council on 10 October, Councillor Hemphill declared a conflict of interest, and left the council meeting when the council came to consider whether the Akuna Drive section of precinct 13 should be included in the strategic development area with the preferred land use being residential.  In an affidavit filed in these proceedings, Councillor Hemphill stated that, before the October meeting, he had obtained independent legal advice concerning his participation in the meeting from his lawyer.  The advice was to the effect that he should declare a conflict of interest in the decision to be made by the council with respect to precinct 13, and should excuse himself from participating in the vote to be taken by the council on that issue.  Councillor Hemphill stated that he was advised to excuse himself out of an abundance of caution, given that he was going to make a submission and appear before the panel to be appointed to consider Amendment C 33.

  1. After Councillor Hemphill had excused himself, the council voted on, and adopted, motions to amend the industrial land management strategy, to be contained within Amendment C 33, to include the plaintiffs’ land.  The council also voted to refer the submissions received by it to a panel to be appointed under Part 8 to the Act.

  1. On 13 November 2006 a panel was appointed.  In March 2007 the panel conducted a hearing of submissions.  Councillor Hemphill appeared to make oral submissions in support of his written submission.  Councillor Hemphill submitted that he was appearing as a councillor, but the panel disagreed, and identified Councillor Hemphill as appearing in his individual capacity.  Ultimately the panel delivered its report on 24 July 2007.  That report effectively agreed with the submissions of Councillor Hemphill in relation to precinct 13.  The panel’s recommendation was that the part of precinct 13, which included the plaintiffs’ land, not be included within the strategic redevelopment area for potential rezoning as residential land. 

  1. The matter then came before council on 14 August 2007.  The plaintiffs’ submission in this case is that, in respect of the issues relating to precinct 13, the matter which came before the council on 14 August 2007 was exactly the same matter which was before the council on 10 October 2006, namely, how much of precinct 13 should be included within the strategic redevelopment area as being appropriate for residential development.  The agenda for the meeting identified three options for the council’s consideration, namely, the February 2006 position, the October 2006 position, or the position recommended by the panel in June 2007.  The central submission of the plaintiffs in this case is that Councillor Hemphill should not have voted on those matters, as they were matters in respect of which he had declared a conflict of interest in October 2006, and were matters in which, in his individual capacity, he had made a submission to the panel in March 2007. 

  1. Two alternative motions were put before the council on 14 August 2007.  Councillor Maryanne Lindsay assumed the chair for the consideration of those two proposals.  The first proposal was that the council adopt a position for precinct 13 as adopted by the council in October 2006.  I interpolate that, if that motion had succeeded, the plaintiffs’ land would have been included within the strategic redevelopment area for rezoning as residential land.  That motion was lost by four votes to three.  Councillor Hemphill voted against the motion, and Councillor Lindsay voted in favour of it.  The second alternative motion was that the council should adopt a position for precinct 13 in accordance with the panel’s recommendations of June 2007.  In other words, the second alternative motion was for the adoption of a position for precinct 13 which did not include the plaintiffs’ land within the strategic redevelopment area.  That proposal was carried by four votes to three.  Councillor Hemphill voted in favour of the proposal, and Councillor Lindsay voted against it. 

  1. It is in light of those background circumstances that I now turn to the two principal submissions made by the plaintiffs. 

Conflict of interest – Local Government Act 1989 ss 77A, 77B, 79

  1. The plaintiffs’ first submission is that Councillor Hemphill was disqualified from voting on either of the resolutions before the council on 14 August 2007, because he had a conflict of interest pursuant to s 77B of the Local Government Act 1989. 

  1. Section 79(1) provides that, if a councillor has a conflict of interest in any matter in which the council is concerned, the councillor must disclose that conflict of interest, and must, while any vote is taken on a question relating to that matter, leave the council chamber, and remain outside during the vote. Section 77A(1) provides that a councillor has an “interest” in a matter in which the council is concerned if sub-section 2 applies. Section 77A(2) provides that a councillor has an interest in a matter where, if the matter were to be decided in a particular manner, the councillor, or a person with whom the councillor is closely associated:

(a)would receive or have a reasonable expectation of receiving a direct or indirect pecuniary or non-pecuniary benefit;  or

(b)would suffer or have a reasonable expectation of suffering a direct or indirect pecuniary or non-pecuniary detriment;  or

(c)would be reasonably perceived as receiving a direct or indirect pecuniary or non-pecuniary benefit, or suffering a direct or indirect pecuniary or non-pecuniary detriment.

  1. Section 77B is entitled “conflict of interest” and provides:

“For the purposes of section 79, a councillor or a member of a special committee has a conflict of interest in respect of a contract, proposed contract or other matter if the councillor or member –

(a)has a direct or indirect pecuniary interest in the matter;  or

(b)is of the opinion that the nature of his or her interest in the contract, proposed contract or other matter is such that it may conflict with the proper performance of his or her public duties in respect of the contract, proposed contract or other matter.”

  1. Mr Finanzio, who appeared with Mr Belmar Salas for the plaintiffs, submitted that Councillor Hemphill had been correct to declare, in October 2006, that he had a conflict of interest in the matter which was then before the council, because he had become involved in the process which was to be considered by the council, not as a councillor, but as a protagonist before the panel.  On 14 August 2007 the council was obliged, under s 27 of the Act, to consider the panel report.  Nothing had changed in respect of the position of Councillor Hemphill since he made his declaration of conflict of interest in October 2006.  Accordingly, he still had a conflict of interest in August 2007, and was thus disqualified from voting on the two resolutions, affecting precinct 13, which were then before the council. 

  1. Mr Finanzio further submitted that, if Councillor Hemphill’s vote was to be disregarded, the vote on each resolution would have been tied.  In those circumstances Councillor Lindsay, as the chair, would have had the casting vote, and she had voted in favour of the first resolution and against the second resolution.  Accordingly, Mr Finanzio submitted that the effect of Councillor Hemphill voting on the two resolutions was to invalidate those resolutions.  He relied on the decision of McInerney J in Attorney-General for Victoria v City of Knox[5].  That case was concerned with the earlier provisions, relating to conflict of interest, in the Local Government Act 1958.  McInerney J held that where a councillor had voted, notwithstanding having a conflict of interest as prescribed by the Act, the vote of that councillor was to be disregarded.  In those circumstances, the resolution voted for by council remained valid, unless the offending councillor’s vote was determinative of the fate of the resolution.

    [5][1979] VR 513.

  1. In my view, the difficulty with the plaintiffs’ submission lies in the need to identify a relevant conflict of interest in the terms described by s 77B of the Local Government Act. That section provides that a conflict of interest may arise for a councillor in one of two circumstances. First, under s 77B(a), a councillor may have a conflict of interest if he or she has a direct or indirect pecuniary interest in the matter to be determined by the council. No such interest is alleged against Councillor Hemphill. Secondly, under s 77B(b), a councillor has a conflict of interest if that councillor “is of the opinion” that the nature of his or her interest in the matter is such that it may conflict with the proper performance of his or her public duties in relation to the matter.

  1. In this case, whether correctly or otherwise, Councillor Hemphill was of the opinion, in October 2006, that he was affected by such a conflict of interest.  However, he was not of such an opinion in relation to his position in respect of the resolutions which were to come before the council on 14 August 2007.  Councillor Hemphill, in his affidavit, said that after the July 2007 meeting of the council, he again sought independent legal advice from his lawyer.  He was advised that, because the panel hearing had concluded, and the panel had reported its recommendations, this was a separate matter and there was no longer any need for him to declare any interest in the matter.  Councillor Hemphill was cross-examined before me and I am satisfied that that statement, contained in his affidavit, reflected his state of mind when he voted on the two resolutions on 14 August 2007. 

  1. It is not for me to determine whether Councillor Hemphill’s view of the matter on 14 August 2007 was “right” or “wrong”. I am satisfied that he was of the opinion, for the reasons stated by him, that the nature of his interest in the matter was not such as would conflict with the proper performance of his duties in relation to the matter. Mr Finanzio submitted that, nonetheless, there was an implied requirement in s 77B(b) that the opinion held by the council must be “reasonable”. However, no such requirement is specified by the section. Rather, s 77B(b) leaves the matter to the subjective “opinion” of the councillor. No doubt the opinion must be one which is honestly held, and one which has been formed by the councillor after giving the matter proper consideration. There is no basis to re-write s 77B(b) to contain the qualification contended for by Mr Finanzio. However, and in any event, even if it could be shown that the opinion must not be “unreasonable” in the Wednesbury Corporation sense[6], the plaintiffs’ submission fails on this point, in my view, because the plaintiffs have failed to identify a particular “interest” in the matter, held by Councillor Hemphill, which must have come into conflict with the proper performance by him of his public duties in relation to the matter.

    [6]Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.

  1. In this context, I agree with the submission by Mr Appudurai, who appeared for the defendant, that the word “interest” in s 77B(b) bears the same meaning as that defined in s 77A(2). When I asked Mr Finanzio what non-pecuniary benefit would accrue to Councillor Hemphill if the council decided the two resolutions in favour of the position contended for by Councillor Hemphill, Mr Finanzio responded that Councillor Hemphill had the benefit of voting before the council in the manner in which he put the case before the panel. However, that response begs the question which needs to be answered, in order to determine whether Councillor Hemphill had an “interest” for the purposes of s 77A(2). Under that section, the interest derives from a benefit accruing (or a detriment being suffered) as a consequence of a determination by the council of a matter in a particular manner. It is true that, by voting for the outcome for which he had argued before the panel, Councillor Hemphill achieved the result that his view prevailed in the council. However, to say that does nothing more than to describe the result of Councillor Hemphill participating in the vote. It does not identify, for the purposes of s 77A(2), any relevant “interest” of Councillor Hemphill in the vote, in the sense of a benefit received by him, or a detriment avoided by him, as a consequence of the result of the vote. For those reasons, even if it were permissible to “go behind” the subjective opinion of Councillor Hemphill in August 2007, I am not persuaded that he had any relevant “interest” in the vote which was before the council on 14 August 2007, and thus that he must have been, or should have been, of the opinion that he had a conflict of interest in relation to that matter. For those reasons, I reject the submissions of the plaintiffs that Councillor Hemphill should have been disqualified from voting on 14 August 2007 by reason of s 77B of the Local Government Act 1989.

Pre-determination

  1. The second submission made by the plaintiff is based on the principles of natural justice.  It is submitted that the decision by the council on 14 August 2007 in respect of the two resolutions was a decision to which the principles of natural justice apply.  In particular, it was submitted that the resolutions passed by the council affected the rights and legitimate expectations of the plaintiffs, and that accordingly the council had an obligation to act in a manner which was fair in all the circumstances[7].  Mr Finanzio submitted that the authorities recognise that, in the context of local government law, the whole of the circumstances must be taken into account in determining whether a decision by a council has offended against a principle of procedural fairness.  He relied on the decision of Sopinka J in Old St BonifaceResidents Association Inc v City of Winnepeg et al[8], which has been adopted by Australian Courts, including by Vincent J of this Court in Bycon Pty Ltd & Ors v Moira Shire Council & Ors[9].  In Old St Boniface Residents Association case, Sopinka J, recognising that some element of prejudgment is inherent in the role of a councillor, identified the appropriate test as whether, notwithstanding that element of prejudgment, the councillor, in determining the question before him or her, was nonetheless capable of being persuaded, or in other words, remained open to persuasion.  In this case, Mr Finanzio submitted that, by 14 August 2007, Councillor Hemphill, to the perception of the properly informed bystander, was fixed in his views.  He had declared a conflict of interest in October 2006 because he was determined to participate in the process before the panel as a protagonist.  In that role, Councillor Hemphill had made a written submission to the council, and then had made an oral submission to the panel.  Accordingly, it was submitted that a fair minded lay observer, with the knowledge of the material objective facts, might entertain a reasonable apprehension that Councillor Hemphill would not bring an unprejudiced mind to the resolution of the matter, in the sense qualified by Sopinka J in Old St Boniface Residents Association case.  Accordingly, it was submitted that, under common law principles, Councillor Hemphill should have been disqualified from participating in the proceedings before the council on 14 August 2007, and thus the proceedings of that day should be quashed. 

    [7]Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ).

    [8](1999) 75 DLR (4th) 385, 408-9.

    [9][1998] VSC 25.

  1. In response, Mr Appudurai submitted that the principles of natural justice did not apply to the decision by the council, on 14 August 2007, in respect of the panel report.  He relied on two principal arguments to support that submission.  First, he submitted that the scheme of the Act is such that it precludes the application of the principles of natural justice to a decision by a council under s 27(1) of the Act.  Mr Appudurai referred to the provisions in the Act which apply to the proceedings before the panel.  In particular, s 24 specifically requires the panel to consider all submissions and to give a reasonable opportunity to be heard to any person who has made a submission referred to it.  Sections 159 to 161 contain specific provisions concerning the conduct by the panel of its hearing.  Section 161(1)(a) provides that a panel is bound by the rules of natural justice.  By contrast, the Act makes no specific provision requiring the council to conform with the principles of natural justice when considering a panel report under s 27(1).  He therefore submitted that the legislative intention was to exclude the principles of natural justice from that stage of the process in which an amendment to a planning scheme is considered.

  1. Further, Mr Appudurai pointed out that the decision made by the council on 14 August 2007 was but one step in the process relating to the proposed amendment to the planning scheme.  After the council approved the amendment, it was a matter for the Minister, under ss 31 to 35 of the Act, to approve the amendment with or without changes, or to refuse to approve the amendment.  Thus the plaintiffs had the opportunity to lobby the Minister, notwithstanding that the decision of 14 August 2007 went against their interests.  In addition, Mr Appudurai pointed out that, even if the council had adopted an amendment to the planning scheme which included the plaintiffs’ land within the proposed strategic redevelopment area, there was no guarantee that, in the future, the plaintiffs’ land would be rezoned as residential land.  For those reasons, he submitted that the decision made by the council on 14 August 2007 was not amenable to the principles of natural justice. 

  1. Mr Appudurai further submitted that, if the principles of natural justice applied to the decision of the council of 14 August 2007, there was, in fact, no prejudgment of the matter by Councillor Hemphill.  Mr Appudurai distinguished the circumstances of the decision of Zeeman J in R v West Coast Council;  ex parte the Strachan Motor Inn[10], which was relied on by the plaintiffs.  That case concerned the decision by a council not to grant to the plaintiffs a planning permit.  In this case, the decision of the council on 14 August 2007 did not have such an immediate impact on the plaintiffs’ rights.  Further, Mr Appudurai submitted that Councillor Hemphill had taken appropriate advice as to whether he ought to disqualify himself from participating in the decision of 14 August 2007.  His evidence was to the effect that he approached the matter with an open mind.  The issue before the council on 14 August was different to that on October 2006, because the panel process had been completed.  For those reasons, it was submitted that there was no prejudgment by Councillor Hemphill of the issue before the council on 14 August 2007. 

    [10](1994) 4 Tas R 411.

Procedural fairness – principles

  1. The question, then, is whether the council was obliged to comply with the relevant requirements of procedural fairness, or natural justice, in considering, and resolving upon, the panel report on 14 August 2007. 

  1. In Annetts & Anor v McCann & Ors[11], Mason CJ, Deane and McHugh JJ identified the circumstances in which the rules of natural justice apply in the following terms:

“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 … .”

[11](1990) 170 CLR 596, 598.

  1. Formerly, the rules of natural justice were only applicable in respect of statutory bodies which exercise judicial or quasi judicial functions.[12]  However, the distinction between, on the one hand, judicial and quasi judicial bodies, and, on the other hand, administrative bodies, has been long abandoned in this area of the law.  In determining whether the principles of natural justice apply, the Courts do not look to the type of proceeding undertaken by the statutory body, or the constitution of that body;  rather, the Courts look to the nature of the power exercised by the body, and the nature and status of the issue which is determined by that exercise of power[13].  The rules of natural justice may apply to a particular decision or proceeding, notwithstanding that that decision or proceeding is but one step, but not the ultimate step, in the decision making process.

    [12]R v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171, 205 (Atkin LJ).

    [13]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 576 (Mason CJ, Dawson, Toohey and Gaudron JJ); O’Reilly & Ors v Mackman & Ors [1983] 2 AC 237, 279 (Lord Diplock); Masters v McCubbery & Ors [1996] 1 VR 635, 645 (Winneke P).

  1. In this connection the Courts have distinguished between, on the one hand, the question whether the rules of natural justice apply to a particular decision or proceeding, and, on the other hand, whether the prerogative writ of certiorari (or its modern equivalent) applies to those proceedings[14].  In Ainsworth v Criminal Justice Commission[15], the High Court held that the Criminal Justice Commission of Queensland was bound by the rules of natural justice.  However, the Court held that relief by way of certiorari was not available in respect of the report of the Commission, since that report did not have any relevant legal effect on the rights of the applicants.  Nevertheless, the Court granted the applicants a declaration that, in reporting adversely in relation to the applicants in its report to Parliament, the Commission had failed to observe the requirements of procedural fairness.

    [14]Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159 (Brennan CJ, Gaudron and Gummow JJ).

    [15](1992) 175 CLR 564

  1. It follows from the decision in Ainsworth that the principles of natural justice may apply to a statutory body, notwithstanding that the decision of the body is not of such immediate effect on the rights of a plaintiff as to entitle the plaintiff to relief by way of certiorari in respect of any failure to comply with the principles of natural justice.  That is, the threshold for application of the principles of natural justice – involving the exercise of a power which may adversely affect the rights, interests or legitimate expectations of a party – is lower than the threshold required for prerogative relief in respect of any such failure.  Further, as noted in Ainsworth[16], where a decision making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if, when viewed in its entirety, the decision making process entails procedure fairness. 

    [16]578-9.

  1. On this aspect of the argument, Mr Appudurai submitted that it could not be expected that the council was required to provide a hearing to the plaintiffs, before embarking on its decision on 14 August 2007.  I agree with that proposition.  However, that point does not resolve the question whether, nonetheless, relevant requirements of the principles of natural justice applied to the decision made by the council on that day.  The principles of natural justice do not comprise an inflexible body of rules, which must be applied in their totality, or not at all.  In an often cited passage, Tucker LJ, in Russell v Duke of Norfolk[17], stated:

“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.”[18]

[17][1949] 1 All ER 109 at 118.

[18]See University of Ceylon v Fernando [1960] 1 WLR 223, 231; Salemi v Mackellar(No 2) (1977) 137 CLR 396, 444 (Stephen J); Natural Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296, 320 (Mason, Wilson, Dawson JJ); Vidovich v Mildura Rural City Council [1999] 2 VR 399, 408 (Brooking JA).

  1. Accordingly, the fact that the council may not have been required to provide an audience to the plaintiffs on 14 August 2007 does not detract from the question whether, nonetheless, the council was required to act fairly, and in particular to act with an open mind.  As I have stated, in determining that question, the essential inquiry determines the nature of the power exercised by the council, and the nature of the question which was then before it.

  1. The history of the debate relating to Amendment C 33, which is relevant to these proceedings, indicates that, by 14 August 2007, the essential question for the council was whether or not, in the proposed amendment to the planning scheme, the land of the plaintiffs was to be included within the proposed strategic redevelopment area as being available for rezoning as residential land.  The effect of the decision of 14 August 2007 was to exclude the plaintiffs’ land from that area, for the purposes of the proposed amendment to be adopted by the council, and to be submitted to the Minister for his approval.  It is true, as pointed out by Mr Appudurai, that the decision of the council did not conclude the question.  Sections 31 to 35 make it clear that the Minister may approve the amendment with or without changes, or refuse to approve the amendment at all.  Nonetheless, it is clear that the decision by the council in this case was an important step, potentially affecting the rights of the plaintiffs, in the process involving the amendment to the planning scheme.  It must be remembered that the council’s decision was made after receipt by it of a panel report.  The compilation of that report itself involved the receipt and consideration by the panel of a large number of submissions.  In the circumstances, while the decision of the council was not finally determinative of the issue, nonetheless it would be artificial, and unrealistic, not to recognise that its decision as to the panel’s report will play an important role in the ultimate question whether the plaintiffs’ land is included within the strategic redevelopment area defined by the proposed amendment to the planning scheme.

  1. It is also correct, as Mr Appudurai points out, that even if the plaintiffs’ land were contained within that area, that is no guarantee that the land will ultimately be rezoned as residential.  However, if the plaintiffs’ land is not included within the strategic redevelopment area in the amendment to the planning scheme as ultimately approved by the Minister, the plaintiffs’ rights will be adversely affected.  In that way, in my view, the decision by the council of 14 August 2007 had sufficient potential to impact on the rights of the plaintiffs as to render the decision of the council of 14 August 2007 one which may be liable to conform with the requirements of natural justice. 

  1. The second question, on this issue, is whether, nevertheless, the provisions of the Act exclude the principles of natural justice from applying to the decision of the council of 14 August 2007.  In the passage in the joint judgment in Annetts v McCann, which I have quoted above, it was stated that the rules of natural justice are only excluded by “plain words of necessary intendment”.[19]  As I have already stated, Mr Appudurai submitted that the scheme of the Act was such as to exclude the application of the principles of natural justice from the decision made by the council under s 27(1).  That submission was made by reference to the express requirement in the statute that the panel conform with the principles of natural justice.  In Ainsworth, a similar submission was made on behalf of the Criminal Justice Commission.  The majority observed in relation to that submission:

“The principles of construction embodied in the maxims expressio unius est exclusio alterius and expressum facit cessare tacitum, if applied to this case, would lead to the conclusion that section 3.21(2)(a) excludes any wider duty of fairness than that there specified.  However those principles are to be applied with caution.  They are not to be applied if they would bring about a result which the legislature is unlikely to have intended.  And, as has already been noted, if it did not say so, it is highly unlikely that the Parliament intended that the Commission should act unfairly.”[20]

[19]See also Twist v Randwick Municipal Council (1976) 136 CLR 106, 109-110 (Barwick CJ); Masters v McCubbery [1996] 1 VR 635, 645 (Winneke P).

[20](1992) 175 CLR 564, 575.

  1. Where a planning authority, considering an amendment to a planning scheme, receives a number of submissions requesting any change to the amendment, it is mandatory for the authority to refer the submission to a panel. After the panel has made its report to the authority, s 27 requires the authority to “consider” the  report before deciding whether or not to adopt the amendment.  As I have already concluded, in my view the decision made by the council, under s 27, in this case, was one to which ordinarily the principles of procedural fairness would apply.  I do not consider that the absence of any express provision to that effect, in s 27, leads to a different conclusion.  The fact that the Act prescribes the procedures to be followed by the panel, and expressly provides that the panel shall be bound by the rules of natural justice, does not lead to the conclusion that, by contrast, the council, in making such a decision as it did on 14 August 2007, was not required to conform with the relevant requirements of those principles.  Accordingly, I do not find within the Act any “necessary intendment” that the principles of natural justice should be excluded where a council considers a panel’s report under s 27(1). 

  1. Thus, my conclusion, so far, is that, in considering the report of the panel on 14 August 2007, the defendant council was obliged to comply with the requirements of natural justice.  Before determining what the content of that requirement was, I should emphasise that that conclusion applies to the particular decision which was made by the council in this case.  That is, given the potential impact of the decision on the legitimate rights and expectations of the plaintiffs, I have come to the conclusion that it was the obligation of the defendant council to observe the requirements of natural justice, so far as they are relevant to the decision making process undertaken by the council on 14 August 2007. 

  1. The next question concerns the content of those requirements.  Clearly, as pointed out by Mr Appudurai, the dictates of natural justice did not require that the council provide to any particular party, and in this case the plaintiffs, a right to be heard in respect of the consideration by the council of a panel report under s 27 of the Act.  The question at issue is whether the council was required to act free of prejudgment in respect of the issue which was then before it, and, if so, the precise ambit of that requirement. 

  1. The question of the effect of “prejudgment” on the considerations of a councillor was given detailed consideration by the Supreme Court of Canada in Old St Boniface Residents Association Inc v The City of Winnipeg and the St Boniface-Saint Vital Community Committee[21].  The relevant test was enunciated in the judgment of the majority, delivered by Sopinka J.  That test has been cited and followed by Vincent J in Bycon Pty Ltd & Ors v Moira Shire Council & Ors[22] and by Zeeman J in R v West Coast Council;  ex parte the Strachan Motor Inn[23].  In my view, those authorities, to which I shall further refer below, establish the following propositions:

(1)In determining whether there was prejudgment on behalf of a councillor, it must be borne in mind that councils are democratically elected, and that councillors necessarily carry out political and legislative roles.  Accordingly, a councillor is not necessarily disqualified from participating in a decision because the councillor, previously, has held and expressed views on the matter in question. 

(2)The appropriate test, taking into account the political and legislative nature of the role of a councillor, is whether the councillor, on the matter in question, is open to persuasion, notwithstanding his or her previously held and expressed views on the subject.  In other words, to establish that a councillor is disqualified from participating on a decision on the basis of prejudgment, it must be shown that the councillor’s views were so demonstrably fixed that they were not open to being dislodged by reason or argument.

(3)It is not necessary to prove actual prejudgment on behalf of a councillor.  It is sufficient if it is made to appear that a fair minded and informed member of the public might entertain a reasonable apprehension that the councillor was not open to persuasion on the matter in question, because of the councillor’s previously held and expressed views on the matter, or because of the councillor’s previous involvement in the issue in question. 

[21](1990) 75 DLR (4th) 385.

[22][1998] VSC 25.

[23](1994) 4 Tas R 411; see also F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537, [110]-[141] (Biscoe J); McGovern v Ku-ring-gai Council & Anor [2007] NSWLEC 22, [71]-[80] (Pain J).

  1. The starting point for those principles is the decision of the Supreme Court of Canada in the Old St Boniface Residents Association case.  That case concerned an application to rezone land in the City of Winnipeg as residential land.  The legislation governing such an application divides Winnipeg into six “communities”.  Rezoning applications are initially referred to a community committee in which the land is located.  That committee hears representations from interested persons and makes a recommendation on the application.  Councillor Savoie was a member of the community committee which considered the application.  The committee approved the application, and its report was then referred to the committee on Planning and Community Services.  In turn, that committee recommended the rezoning application.  It then came before the plenary session of the city council.  After a full debate council gave its approval to the rezoning.  The appellant, the local Residents Association, attacked the process by originating motion, on the grounds of the membership of Councillor Savoie of the community committee.  The appellants claimed that Councillor Savoie should have been disqualified from membership of that committee, on the basis that, hitherto, he had attended before the finance committee, and spoken in favour of the grant of an option, to buy the necessary lands, to the present owner who would benefit from the proposal to rezone it.  The Supreme Court rejected that submission.  In delivering the judgment of the majority of the Court, Sopinka J stated:

“I would distinguish between a case of partiality by reason of prejudgment on the one hand and by reason of personal interest on the other.  It is apparent from the facts of this case, for example, that some degree of prejudgment is inherent in the role of a councillor.  That is not the case in respect of interest.  There is nothing inherent in the hybrid functions, political, legislative or otherwise, of municipal councillors that would make it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters in respect of which they have a personal or other interest.  It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with the other citizens in the municipality.  Where such an interest is found, both at common law and by statute, a member of council is disqualified if the interest is so related to the exercise of public duty that a reasonably well informed person would conclude that the interest might influence the exercise of that duty. …

In my opinion, the test that is consistent with the functions of a municipal councillor and enables him or her to carry out the political and legislative duties entrusted to the councillor is one which requires that the objectors or supporters be heard by members of council who are capable of being persuaded.  The Legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible.  The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile.  Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the Court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged.  In this regard it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change.  The contrary conclusion would result in the disqualification of a majority of council in respect of all matters which are decided at public meetings at which objectors are entitled to be heard.”[24]

[24](1990) 75 DLR (4th) 385, 408 - 409.

  1. That test was applied by Vincent J in Bycon Pty Ltd & Ors v Moira Shire Council & Ors.  In that case, the plaintiffs sought injunctions and declaratory relief in respect of the intended sale of council property at Cobram.  Shortly before the sale was concluded, the council was alerted to the provisions of ss 189 and 223 of the Local Government Act.  Section 189 requires that the council give public notice of its intention to sell the land, and that any person has a right to make a submission in respect of the proposed sale.  Section 223 provides that the council must take into consideration all such submissions so made, and after making its decision, must notify in writing those persons of the decision and the reasons for the decision.  When its attention was drawn to those requirements, the council belatedly embarked on the process required of it by the Act.  Vincent J found that there was a plethora of evidence which compelled the conclusion that the process undertaken by the council was, to all intents and purposes, a mere ritual, designed to create the illusion of compliance with the statute.  Accordingly, his Honour held that council’s considerations were so affected by prejudgment as to fail to comply with the principles of natural justice.  In reaching that conclusion, Vincent J quoted part of the passage of Sopinka J in Old St Boniface Residents Association, which I have set out above.  His Honour then stated:

“The courts have repeatedly indicated that the question is one of fact, objectively assessed and bearing in mind that, when concepts of natural justice and objective perception operate in the local government area, it must be anticipated that appointed commissioners or directly elected representatives would develop views about the desirability of particular types of developments or business or industrial activities proposed within the area which they have undertaken to serve. …  However, in the process they can be expected to have regard in a proper fashion to a range of competing values and perspectives and to approach the choices which may have to be made with open minds.”[25]

[25][1998] VSC 25, [53].

  1. In determining that the processes of the council had been infected by prejudgment, Vincent J accepted that it was not necessary that the plaintiffs prove actual bias;  it was sufficient that the plaintiffs demonstrate that it would appear to a right thinking person that the council had not been able to discharge its statutory duty with fairness.[26]

    [26]Ibid [54].

  1. The test prescribed by Sopinka J in Old St Boniface Residents Association was also applied by Zeeman J in R v West Coast Council;  ex parte the Strachan Motor Inn[27].  In that case, a motel firm made an application to the council for a development permit relating to an advertising sign.  A member of the council, Councillor Gerrity, made representations to the council opposing the development application.  The permit was initially granted but later rescinded.  The firm made a further application for a permit.  Councillor Gerrity again made representations opposing the application.  He subsequently participated in the council’s determination of the development application, voting against it.  The motel firm made an application to the Supreme Court for a writ of certiorari to quash the council’s determination.  That motion was granted by Zeeman J.  Having referred, with approval, to the judgment of Sopinka J in Old St Boniface Residents Association, His Honour then stated:

“Whilst I leave open the question whether Councillor Gerrity’s conduct disclosed actual bias in the relevant sense, the fair minded and responsible bystander might reasonably assume that having committed himself to a position evidenced by that representation he had closed his mind to the possibility of doing other than voting against the proposal.  Councillor Gerrity had a choice.  He could choose to exercise his statutory right, not derived from his status as a councillor, to make representations and in that event have the rights conferred upon persons who make representations.  Alternatively he could consider the relevant material properly before the council and speak to any motion to grant or not to grant a permit.  To do both was to make himself to some extent a judge in his own cause. 

Councillor Gerrity caused material, of which he was the author, to be placed before the council.  By force of law, that material became part of that which the respondent was required to consider before determining the application.  By making representations having statutory significance, Councillor Gerrity moved from being an elected representative who held strong views on relevant planning matters to being, in effect, a party to the application before the respondent.  He moved from being a decision maker, albeit one with strong views, required to judge all relevant material placed before the respondent by others to being the author of some of that material, being material of a highly partisan character.  By his representations he unequivocally committed himself to a position.  The reasonable bystander could not but apprehend that Councillor Gerrity would adhere to that position regardless of what other material might be put before the respondent or of what other arguments might be advanced.  …  Councillor Gerrity’s participation in and presence at the discussion concerning the prosecutor’s application vitiated the whole decision making process.  It follows that the basis for relief has been made out by the prosecutor.”[28]

[27](1994) 4 Tas R 411.

[28]Ibid, 426 - 427.

  1. Each case must, of course, be decided on its own facts.  The actual decisions in the cases to which I have referred are useful in illustrating the approach of the Courts to the question of predetermination, and the factual circumstances in which the decisions were made.  However, each of the actual decisions reached in those cases may be distinguished.  In the Old St Boniface Residents Association case, the issue before the finance committee, before which Councillor Savoie had appeared, was not the same issue as that which was before the community committee, of which Councillor Savoie was a member.  Likewise, the facts in the West Coast Council case are different to the facts in this case.  In that case, Councillor Gerrity had made representations to council, of which he was a member, and which was the body which decided whether or not to grant the permit.  Thus, the nexus between his involvement as an “advocate” and “decision maker” was more immediate than in the present case.  In addition, the decision by the council had a more immediate effect on the rights of the prosecutor in the West Coast Council case than did the decision of the Hobsons Bay City Council on the rights of the plaintiffs. 

  1. The question, then, is whether a fair minded and informed member of the public might entertain a reasonable apprehension that Councillor Hemphill, in considering the panel’s report on 14 August 2007 and determining to vote on it, was not open to persuasion but rather had a predetermined fixed view on the subject.[29]  As Vincent J pointed out in Bycon Pty Ltd, the decision is one essentially of fact, to be objectively assessed in light of the principles to which I have referred.

    [29]Cf. Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293-4; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 87.

  1. In my view, the starting point for determining the issue is that, in October 2006, Councillor Hemphill had made a submission to the council, in respect of whether Amendment C 33 should include the plaintiffs’ land within the proposed strategic redevelopment area.  That submission was made under s 21(1) of the Act, which permits “any person” to make a submission about a proposed amendment to a planning scheme.  Thus, Councillor Hemphill’s submission was not made in his capacity as a councillor, but as a citizen.  Section 22(1) obliged the council, as the planning authority, to consider that submission.

  1. Pausing there, at that stage, the council was clearly the “judge” in the cause in which Councillor Hemphill had sought to participate as a protagonist. Recognising that circumstance, Councillor Hemphill declared a conflict of interest in relation to the resolutions concerning Amendment C 33. Accordingly, he did not participate in the vote on the resolution to refer the submission to the panel, or on the resolution to adopt the October 2006 Industrial Land Management Strategy, which included the plaintiffs’ land within the proposed strategic redevelopment area. Relevantly, he did not disclose the nature or extent of his interest as required by s 79 of the Local Government Act.  The panel, to which the matter was referred, was required to consider all submissions made to the council, including Councillor Hemphill’s submission.  Councillor Hemphill had the right to appear before the panel and to have his submissions considered by it[30].  The panel was obliged to accord Councillor Hemphill, and any other interested party, natural justice[31].  Councillor Hemphill availed himself of that right and appeared before the panel.  It was the panel’s report which came to the council for its consideration on 14 August 2007.  Thus, the very subject on which Councillor Hemphill had made a submission to the council in October 2006, had made a submission to the panel, and had appeared before the panel, was the subject before the council on 14 August 2007.  When he originally made his submission to the council in October 2006, Councillor Hemphill had declared a conflict of interest.  In the absence of any declaration by Councillor Hemphill as to the basis of the conflict, it might be reasonably inferred, by the informed bystander, that he had recognised a conflict between his role as a Councillor in respect of the issue, and his role as a protagonist in it.

    [30]Section 24.

    [31]Section 161(1)(b).

  1. In my view, to paraphrase the words of Zeeman J in the West Coast Council case, a reasonably informed bystander would perceive that, in those circumstances, Councillor Hemphill had moved from being a decision maker, required ultimately to judge the issue on its merits, to being, in effect, a party or advocate in relation to the issue which was to come before the council for its consideration on 14 August 2007.  For, the inescapable fact is that it was the panel’s report, in relation to which Councillor Hemphill had participated as an advocate, which was to come before the council for its consideration under s 27.

  1. It follows that, in those circumstances, a fair minded and informed observer might reasonably apprehend that, when the panel’s report came before the council for its consideration, under s 27(1), on 14 August 2007, Councillor Hemphill might not have brought an open mind to bear in the issue, but, rather, would by then have had a fixed and inflexible mind to adhere to the views which he had advanced in his October 2006 submission to council, and in his subsequent appearance before the panel.  For those reasons, I am of the view that there was predetermination of the issue by Councillor Hemphill of the kind defined by Sopinka J in Old St Boniface Residents Association case.

  1. Accordingly, the principles of natural justice required that Councillor Hemphill refrain from participating in the motions relating to the issue on that date.  It follows that, in considering the two resolutions relating to precinct 13, the council included a member who was “biased”, and who should not have participated in the decision making process.  Furthermore, the vote of Councillor Hemphill was determinative of the fate of the two resolutions which affect the rights of the plaintiffs.  It therefore follows that, in considering and determining those resolutions, the council failed to comply with the rules of natural justice.

Relief

  1. The plaintiffs claim relief by way of certiorari quashing the two resolutions of the council of 14 August 2007, and also declaratory relief.  In response, Mr Appudurai submitted that I ought not to grant such relief, and in particular relief by way of certiorari, in the exercise of the Court’s discretion.  Mr Appudurai submitted that the plaintiffs have sufficient alternative rights available to them, so that the Court should not provide relief in the nature of certiorari.  Mr Appudurai submitted that those alternative rights consist, first, in the plaintiffs’ rights before the Victorian Civil and Administrative Tribunal, and, secondly, in the right of the plaintiffs to approach the Minister in order to dissuade the Minister from approving the proposed amendment to the planning scheme. 

  1. I do not consider that the potential availability of either alternative recourse is a proper basis for denying the plaintiffs’ relief by way of certiorari, if they are otherwise entitled to it.  Without expressing any concluded view on the matter, there is at least some room to doubt whether, under s 39(1) of the Act, the plaintiffs would be entitled to relief at the Victorian Civil and Administrative Tribunal on the basis on which relief is sought in this Court.  Further, the question whether the plaintiffs will have the opportunity to “lobby” the Minister is entirely speculative.  In the event that they do have that opportunity, it could not be sensibly equated with the rights of the plaintiffs to the relief claimed in this case, if the plaintiffs are otherwise entitled to that relief. 

  1. Apart from the discretionary considerations to which I have referred, Mr Appudurai did not make any other submission in relation to the availability of relief by way of certiorari and declaration, should I come to the conclusion that the proceedings of the council on 14 August 2007 were vitiated by reason of bias.  Nonetheless, it is necessary that I consider the question whether, in such circumstances, relief by way of certiorari is available in respect of the decision made by the council. 

  1. As I have already indicated, the High Court has drawn a distinction between, on the one hand, the question whether a decision is one to which the principles of procedural fairness apply, and, on the other hand, the question whether relief by certiorari will lie in respect of such a decision.  In Ainsworth v Criminal Justice Commission, the Criminal Justice Commission of Queensland prepared, and tabled in Parliament, a report in relation to the introduction of poker machines into Queensland.  The report recommended that the Ainsworth Group of Companies should not be allowed to participate in the gaming industry in Queensland.  The High Court held that, in making that report, the Commission was required to comply with the rules of procedural fairness.  It further held that the Commission failed to comply with those rules, in that it failed to allow persons whose legal rights were affected to be heard.  However, the Court further held that, nonetheless, certiorari did not lie in respect of the report, because the report itself had no legal effect or consequence attaching to it.  In their joint judgment, Mason CJ, Dawson, Toohey and Gaudron JJ stated:

“The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review.  The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect.  It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities.  A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari.  But the Commission’s report is not in that category.”[32]

[32](1992) 175 CLR 564, 580.

  1. The principle stated in Ainsworth was applied by the High Court in Hot Holdings Pty Ltd v Creasy & Ors[33].  That case concerned the conduct of a mining warden in the course of preparing a recommendation to the Minister in respect of applications for exploration licences and mining leases in an area known as the East Murchison Mineral Field.  The majority of the High Court, consisting of Brennan CJ, Gaudron and Gummow JJ, held that the proceedings of the mining warden were subject to certiorari.  Their Honours stated the relevant principle as follows:

“Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights.  It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue:  (1)  Where the decision under challenge is the ultimate decision in the decision making process and the question is whether that ultimate decision sufficiently ‘affects rights’ in a legal sense;  (2)  Where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision making process sufficiently ‘determines’ or is connected with that decision. 

The form in which a decision making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure.  Nevertheless, the difference between the two situations outlined above is one of substance as well as form.  In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision.”[34]

[33](1996) 185 CLR 142.

[34]Ibid 159 - 60; See also Potter v Tural (2000) 2 VR 612, 619 [22] (Batt JA).

  1. In Hot Holdings, the High Court held, as a matter of statutory construction, that the Minister was required to consider the information which the mining warden transmitted to him.  In those circumstances, given that the decision maker was required to take into account the recommendations of the mining warden, certiorari was held to lie in respect of those recommendations.[35]

    [35](1996) 185 CLR 142, 164-5, 174.

  1. In Ainsworth and in Hot Holdings, the High Court referred, with approval, to the judgment of Diplock LJ in R v Criminal Injuries Compensation Board ex parte Lain[36].  In that case, the government, under its prerogative powers, promulgated a scheme for the purpose of compensation victims of crimes of violence by way of ex gratia payments.  Under the scheme the entitlement of a victim to such a payment was to be determined by a Criminal Injuries Compensation Board established by prerogative.  The applicant sought an order for certiorari to quash a finding by the Board.  It was argued, in response, that certiorari did not lie, since the finding of the Board had no effect on the legal rights and liabilities of the applicant or anyone else.  That submission was rejected by the Court of Appeal, which held that the writ of certiorari did lie in respect of the proceedings before the Board.  Diplock LJ stated the relevant principles as follows:

“It is plain on the authorities that the tribunal need not be one whose determinations give rise directly to any legally enforceable right or liability.  Its determination may be subject to certiorari notwithstanding that it is merely one step in a process which may have the result of altering the legal rights or liabilities of a person to whom it relates.  It is not even essential that the determination must have that result, for there may be some subsequent condition to be satisfied before the determination can have any effect upon such legal rights or liabilities.  The subsequent condition may be a later determination by another tribunal … .”[37]

[36][1967] 2 QB 864.

[37]Ibid, 884.

  1. The question whether the decision by the council on 14 August 2007 is, in accordance with the above principles, amenable to relief by certiorari, is not without difficulty.  As I have stated, this aspect of the question was not the subject of argument on behalf of the defendant.  Nonetheless, I am of the view that the decision of the council, on 14 August 2007, is one in respect of which relief by certiorari may lie.  It is clear that the decision which was made by the council on that date was determinative of the next step to be undertaken, namely, the adoption by the council of Amendment C 33.  What remains is the preparation of the relevant documentation in accordance with the resolutions passed on 14 August 2007, and for those documents to be placed before council for its adoption.  Subsequently, after adoption by the council, the proposed amendment must be submitted to the Minister for approval.  Of course, the Minister may either approve the amendment, approve it with changes, or refuse to approve it, under s 35(1) of the Act.  However, the point remains that it is Amendment C 33 which will be the subject of consideration by the Minister.  In other words, in considering whether to make an amendment to the planning scheme, the Minister does not proceed “de novo”.  Ex hypothesi, in deciding whether or not to approve an amendment, the Minister must consider the amendment.  In that way, in my view, the decisions of the council on 14 August 2007 may, to use the language of Diplock LJ in Ex parte Lain, be characterised as “… one step in a process which may have the result of altering the legal rights or liabilities” of the plaintiffs.[38]

    [38]See also Re MacTiernan, ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138, 151 - 153 (McLure JA).

  1. That conclusion is, I consider, reinforced by the factual background to the council resolutions of 14 August 2007. As I have already pointed out, the decisions as to those resolutions were made after a number of submissions were made to the council.  Those submissions in turn were referred to the panel constituted under the Act, and that panel made a report to the council.  The council’s decision on 14 August 2007 was made under s 27 of the Act, in which the Council was required to consider the report of the panel.  Thus the proposed amendment, which will be laid before the Minister for his approval, has been through an exhaustive process of public submission, panel determination, and consideration by the council.  It is that decision which will be the focus of the Minister’s consideration under s 35 of the Act.  Obviously the Minister, in considering the amendment, would be well aware that the amendment put before him by the council for his approval had been formulated as a result of such a detailed consultative process.  Those facts fortify my conclusion that the decision of the council on 14 August 2007 was, and will be, an important step in the decision making process in respect of the proposed amendment, and thus is sufficiently connected with the ultimate decision in relation to the amendment to the planning scheme as to be amenable to relief in the nature of certiorari.[39]

    [39](1996) 185 CLR 142, 159.

  1. Accordingly, in my view the plaintiffs are entitled to a declaration that the resolutions made by the meeting of the defendant council on 14 August 2007 were made contrary to the rules of natural justice, and to an order in the nature of certiorari quashing the decisions made by the defendant comprising those resolutions. 

Conclusion

  1. In summary, for the reasons set out above, I have reached the following conclusions:

(1)Councillor Hemphill did not have a conflict of interest, contrary to s 77B of the Local Government Act 1989, in voting on the motions considering Amendment C 33 to the Hobsons Bay Planning Scheme in respect of precinct 13 as set out in s 7.3.1 of the minutes of the defendant council of 14 August 2007.

(2)The principles of natural justice apply to the decisions made by the defendant council in respect of those resolutions.

(3)Councillor Hemphill was affected by apparent bias in participating in, and voting on, those resolutions, in the sense that a fair minded and informed member of the public might entertain a reasonable apprehension that he might not have brought an impartial and unprejudiced mind to the resolution of the issues considered by the council on that day.  Accordingly, the resolutions were so passed in breach of the rules of natural justice. 

(4)The decisions made by council of 14 August 2007, in relation to those resolutions, are amenable to prerogative relief by way of certiorari. 

  1. Accordingly, and subject to hearing from counsel as to the precise terminology, I propose to grant the following relief to the plaintiffs as sought in the originating motion:

(1)I declare that the resolutions made by the meeting of the council of the defendant on 14 August 2007 regarding Hobsons Bay Planning Scheme Amendment C 33 in respect of precinct 13 as defined by the Hobsons Bay Industrial Land Strategy, and as described in paragraph 7.3.1 of the minutes of the defendant council of that meeting, were made in breach of the requirements of natural justice.

(2)I make an Order in the nature of certiorari quashing the determinations made by the defendant on 14 August 2007 regarding Amendment C 33 in respect of precinct 13, and as contained in the minutes of the council of the defendant of 14 August 2007 in para 7.3.1. 


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Bycon Pty Ltd v Moira Shire Council [1998] VSC 25
Italiano v Carbone [2005] NSWCA 177
Annetts v McCann [1990] HCA 57