VAW (Kurri Kurri) Pty Limited v Scientific Committee [No. 3] [2002] NSWLEC 143

Land and Environment Court of New South Wales

CITATION : VAW (Kurri Kurri) Pty Limited v Scientific Committee [No. 3] [2002] NSWLEC 143 APPLICANT VAW (Kurri Kurri) Pty Limited PARTIES : RESPONDENT Scientific Committee FILE NUMBER(S) : 40110 of 2001 CORAM: Cowdroy J KEY ISSUES: Practice and Procedure :- disqualification for bias LEGISLATION CITED: Environmental Offences and Penalties Act 1989 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 75 ALJR 277; Environment Protection Authority v Capral Aluminium Limited (Cowdroy J, NSWLEC, 18 December 1998, unreported; CASES CITED: Johnson v Johnson (2000) 74 ALJR 1380; Livesey v The New South Wales Bar Association (1983) 151 CLR 288; The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 DATES OF HEARING: 02/04/2002 EX TEMPORE JUDGMENT DATE : 04/02/2002

APPLICANT Mr S Rares, SC with M Leeming (Barrister)

SOLICITOR Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENT Mr B Preston, SC with Ms S Pritchard (Barrister)

SOLICITOR National Parks and Wildlife Service

JUDGMENT: IN THE LAND AND MATTER No. 40110 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 2/04/2002

VAW (Kurri Kurri) Pty Limited Applicant v Scientific Committee Respondent JUDGMENT [No. 3]

1. These proceedings concern a challenge by the applicant which was previously known as Capral Aluminium Limited ("Capral') to an administrative decision made by the respondent. 2. An application has now been made by the applicant that I disqualify myself from hearing these proceedings. 3. On 18 December 1998 Capral pleaded guilty to a charge brought against it by the Environment Protection Authority under the Environmental Offences and Penalties Act 1989: see Environment Protection Authority v Capral Aluminium Limited (Cowdroy J, NSWLEC, 18 December 1998, unreported). This Court determined the question of penalty. In doing so I made reference to various practices of Capral which were of concern to the Court, and which required rectification. 4. The application now made to the Court is based upon the claim that an observer might reasonably apprehend bias. Mr Trevor Coombe was the General Manager of Capral when judgment was given in the prosecution. Mr Coombe is now the Chief Executive Officer of the applicant. 5. In an affidavit sworn by Mr Coombe on 2 April 2002 in support of this application reference is made to the fact that he gave oral evidence at the hearing on the question of penalty. He has said, in paragraph 12 of the affidavit:- If I was available to attend the hearing of this matter I would not attend because I would be concerned that there may be a possibility that any recollection of the earlier case , aroused by his Honour in my presence in court, may affect his Honour's approach to these proceedings. 6. Mr Rares SC appears for the applicant with Mr Leeming, has encapsulated his client's concern. It is said that this Court made critical observations of Mr Coombe and of the applicant in the earlier proceedings concerning the environmental responsibility of the applicant. Such findings might have an adverse impact because the question of the breach of another environmental statute is in issue in the present proceedings. 7. It is important to consider the principles that have been repeatedly affirmed concerning disqualification for bias. I refer to the well known authorities of The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v The New South Wales Bar Association (1983) 151 CLR 288; and Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 75 ALJR 277. In summary those cases re-state the principle that if, to a reasonable person, there could be an apprehension of bias, then the Court should not sit if constituted by the same judge. 8. Mr Preston SC who appears with Miss Pritchard has submitted that the proceedings now before the Court are concerned with conduct of the respondent, namely the Scientific Committee, and not of the applicant. The present proceedings comprise an administrative law challenge concerning the conduct of the respondent. No question of cross-examination of Mr Coombe or of any other witness who was called in the previous proceedings will arise. 9. When the Court delivered its judgment on 18 December 1998 the applicant had pleaded guilty and the only task of the Court was to assess penalty. The observations contained in the judgment reflected upon past conduct of the applicant which was regarded by the Court as wanting. By the plea of guilty by the applicant recognized that its conduct breached the statutory requirements. The observations of the Court related to that conduct and specifically addressed the need for a change in Capral's practices. A penalty was imposed and no appeal was instituted against the findings of the Court. Such judgment was delivered more than three years ago. 10. It is difficult to understand in these circumstances, how a reasonable person could hold any perception of apprehended bias. In Johnson v Johnson (2000) 74 ALJR 1380 the majority judgment of the High Court states at 1382:- [11] It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [12] The test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair minded people reasonably apprehend or suspect the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional Judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial". 11. The issues in the present proceedings are entirely different to those which were before the Court in 1998. It is the conduct of the respondent that is to be examined, not that of the applicant. No issue of the kind that arose in the previous decision will arise in the present case. 12. The Court concludes that a reasonable observer would not conclude there any basis for apprehension of bias. Accordingly the application is refused. ***