Land and Environment Court New South Wales Medium Neutral Citation: Helm No. 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1296 Hearing dates: 6 June 2022 Date of orders: 06 June 2022 Decision date: 06 June 2022 Jurisdiction: Class 1 Before: Dixon SC Decision: Application for recusal on the ground of a reasonable apprehension of bias upheld. Catchwords: BIAS – apprehended bias – application for recusal – whether a fair-minded lay observer might reasonably apprehend that the commissioner might not bring an impartial and independent mind to the fair resolution of the issues in this case – application upheld Legislation Cited: Heritage Act 1977, s 30 Cases Cited: Lu v Walding [2020] NSWLEC 94 Polsen v Harrison [2021] NSWCA 23 Category: Principal judgment Parties: Helm No. 18 Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/81671 EX TEMPORE Judgment 1. This morning at the site view I informed the parties, having received the documents in this case late last Friday afternoon, I became aware that I had recent professional contact in respect of a private development application with the applicant's heritage expert, Mr John Oultram. That contact did not involve any controversial heritage issue nor did it concern a site within the North Sydney LGA. 2. The Council's solicitor, Mr Seton, on instructions, indicated that his client objected to my hearing the matter and would at Court this morning make a formal application that I recuse myself. 3. Mr Galasso SC, who appears for the applicant opposes that application. 4. After drawing the Court's attention to the "double might test" for apprehended bias set out in the decision of Lu v Walding [2020] NSWLEC 94 at [20]-[21] (Lu), the Council submitted that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and independent mind to the fair resolution of the issues in this case because of my recent professional relationship with Mr Oultram. Noting that the "fair-minded observer" is an expression that reflects the principle that it is public confidence in the administration of justice which is sought to be preserved. 5. In agreeing that the Lu decision and the "double might test" was relevant to my determination of the Council's application Mr Galasso identified four discrete elements to the exercise. Firstly, he said, there must be a clear articulation of the facts that might cause my deviation from an impartial decision both in appearance and substance. He submitted, that in this instance the Council had failed to articulate any proper reason to engage the "double might test". As such, there was no proper basis to my recusal. 6. After considering the parties' submissions, I determined that recusal was appropriate in this instance. 7. The application of the apprehended bias rule depends on the circumstances of the case and what the fair-minded lay observer might think - being a hypothetical figure founded in the need for the public confidence in the Court. 8. I acknowledge that a decision for recusal is not to be reached lightly, mindful that I cannot disqualify myself without proper reasons. 9. The well-known principles have recently been considered by the Court of Appeal in Polsen v Harrison [2021] NSWCA 23. In the joint judgment of the Court (Bell P, Basten JA and Simpson AJA), their Honours observed at [46] that: "the fair-minded lay observer is presumed to approach the matter on the basis that ordinarily the judge will act so as to ensure both the appearance and the substance of impartiality, such that the rebuttal of this presumption requires a 'realistic possibility' of the apprehension of bias which is not 'fanciful or extravagant' but is based on 'the established facts' of the matter… being "neither complacent nor unduly sensitive or suspicious". 1. In all the circumstances of this case, having particular awareness of the public interest and the submissions of the applicant, I accept that a fair-minded lay observer might reasonably apprehend that I might deviate from bringing an impartial mind to the resolution of this case because of my recent professional contact with Mr Oultram as a consultant architect. 2. My own view as to my ability to decide the case independently and impartially bears little importance when assessing the position from the perspective of the hypothetical fair-minded lay observer, given my professional contact with the applicant's expert. I am also aware that another Commissioner is available to hear the matter today. 3. Accordingly, for those reasons I recuse myself from hearing this Class 1 appeal brought pursuant to s 30 of the Heritage Act 1977. …………………………. S Dixon Senior Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2022