Land and Environment Court of New South Wales CITATION: Wollongong City Council -V- Masood Falamaki [1999] NSWLEC 23 PARTIES Applicant: Wollongong City Council Respondent: Masood Falamaki NUMBER: 40091 of 1997 CORAM: Talbot J :- KEY ISSUES: Bias - test for apprehension where judge acted as legal representative - perception of prejudgment of one party Costs - where one party seeks an indulgence LEGISLATION CITED: Bias - test for apprehension where judge acted as legal representative - perception of prejudgment of one party Costs - where one party seeks an indulgence DATES OF HEARING: 02/02/1999; 02/03/1999 DATE OF JUDGMENT DELIVERY: 02/17/1999 Mr C W McEwen (Barrister) Solicitors Peedom Brodie & Ward LEGAL REPRESENTATIVES: In person JUDGMENT: IN THE LAND AND MATTER No. 40091 of 1997 ENVIRONMENT COURT CORAM: Talbot J OF NEW SOUTH WALES DECISION DATE: 17 February 1999 WOLLONGONG CITY COUNCIL Applicant v MASOOD FALAMAKI Respondent REASONS FOR JUDGMENT 1. Although the Court found that there was a continuing breach of condition 6 of a building approval issued to the respondent by the applicant council on 8 December 1995, for the reasons published by me on 19 June 1998, it was decided, in the circumstances, that the Court would be prepared to exercise it discretion not to make any orders requiring the respondent to rectify the breach provided a specified form of certification by a structural engineer was provided by 30 September 1998. 2. The proceedings were therefore adjourned to 30 September 1998 to allow time for the certificate to be provided and for the purpose of making final orders. 3. The Court was not able to hear the matter on 30 September 1998. It was re-listed at 9.30am on 14 October 1998 for half an hour. On 14 October 1998 the respondent produced a certificate dated 30 September furnished by D'Amici Colombo Pty Ltd Consulting Structural and Civil Engineers. This certificate was qualified in respect of the northern and southern retaining walls. It did not attach or specifically identify the calculations or retaining wall designs checked for the purpose of the certification. The proceedings were again adjourned to 3 November 1998 to allow further time for compliance by the respondent and final argument. 4. Further hearings took place on 3 and 5 November 1998 when Edward Rigby, a consulting engineer retained by the council gave evidence. He told the Court that a folder containing plans, diagrams and calculations was delivered to him on behalf of the respondent. The folder did not contain any working drawings which would enable a builder to understand how to erect the house or a health and building surveyor to be able to confirm that the house is being erected in accordance with the plans, diagrams and calculations. He also noted that a further certificate dated 16 October 1998 by D'Amici Colombo, although unqualified, did not identify the plans and calculations by reference to plan numbers, author dates or otherwise. 5. In an affidavit sworn 2 November 1998 John D'Amici annexed an unqualified certificate dated 30 October 1998 in the form prescribed by the Court in its judgment on 19 June 1998. However, adopting a pedantic line, he took the point that there was no mention in the judgment of a requirement to specify the details of the materials covered by the design certificate. 6. The Court was thus left in the curious position of pondering whether the certification related specifically to the subject of the proceedings, namely the respondent's structure and associated retaining system. 7. On 5 November 1998 the Court made final orders. These were largely drafted by the council and agreed to in principle by the respondent, except to a minor extent. In particular the respondent disagreed with the strict timetable for the lodgment of working drawings for the proposed residence. The Court nevertheless considered that all the orders were reasonable having regard to the protracted history of the matter up to the date of judgment on 19 June 1998 and the subsequent delays in providing a certificate in a tenable form and the apparent reluctance of the respondent to justify the structural integrity of the entire development, particularly in regard to retention of the surrounding land, notwithstanding the foreshadowed indulgence in his favour by the exercise of the Court's discretion. 8. Finally a certificate in response to Order 2(i) made on 5 November was delivered to council on 12 November 1998. 9. On 30 November 1998 the respondent filed a Notice of Motion seeking an extension of time beyond 4 December 1998 for the lodgment of the working drawings of the proposed residence required on 4 December 1998 pursuant to Order 2(ii). 10. An affidavit sworn by the respondent on 30 November 1998 disclosed that between approximately 5 November 1998 and 17 November 1998 he carried on correspondence with Mr Rigby attempting to persuade him to carry out the work required to comply with the Court's Order 2(ii) notwithstanding Mr Rigby's expressed reluctance to carry out the work because of a perceived conflict of interest. The respondent thereafter unsuccessfully attempted firstly to persuade the council to explain its understanding of the term working drawings and secondly to gain some concession regarding the form of the drawings. 11. The respondent produced a letter dated 26 November 1998 from a further firm of structural engineers who advised him that with the detailed work required and their existing work load it would take a least until the end of March 1999 to have the work required by Order 2(ii) completed. 12. The Notice of Motion filed 30 November 1998 was returned on 4 December 1998. There was not sufficient time for the Court to deal with the Notice of Motion on that day. After perusing the evidence upon which the respondent relied, I informed him that the obligation to comply with the orders was his alone and that if non-compliance continued, it could reflect adversely on his integrity and the prospect of obtaining the relief he was seeking. The Notice of Motion was stood over to the first day of term in 1999 in order to give the respondent a final opportunity to approach the tasks confronting him with a clear understanding of his responsibility. 13. On 25 January 1999 the respondent lodged three drawings of a retaining wall and drainage detail with the council. A certificate by Phillip Allen, Consulting Engineer, in respect of drawings and calculations and design documents was delivered to the council on 27 January 1999. Unfortunately the drawings did not relate to the proposed residence. Furthermore, the certificate omitted to identify the calculations and designs the subject of the certificate. 14. When the hearing commenced on 1 February 1999, Dr Falamaki made an application that the Notice of Motion and the issue of costs be determined by another Judge of the Court for the following reasons:- 1. An apprehension of bias on the ground that I was allegedly the barrister of first choice for the Wollongong City Council for several years including in particular the period between 1987 to 1992. 2. That the observations made by me on 4 December 1998 disclosed prejudgment in relation to compliance with outstanding orders. 15. It is appropriate therefore that I deal with these two issues before proceeding with the substance of the Notice of Motion and the outstanding question of costs, both of which have nevertheless been fully argued before me. Indeed, Dr Falamaki has agreed to the form of orders which should be made in response to the Notice of Motion provided the Court is still of the opinion that further drawings and certification is required as a condition of being released from the obligation to demolish the existing structure and to restore the land to its pre-existing condition. Apprehension of bias 16. It is true that between 1982 and 1992 I was briefed to advise and to appear on behalf of Wollongong City Council on a regular basis. I never had either a special or a general retainer from the council. There is no suggestion, nor can there be, of any special relationship with any member of council, its staff or its other legal advisers other than a professional one. It is now over six years, almost seven, since there was any prospect of providing a professional service to the council. 17. The disqualification test, as explained by the High Court in Re JRL; Ex Parte CJL (1986) 161 CLR 342, shows that what must be decided by a Court when dealing with the question of apprehended bias is whether in fact it is reasonable for the parties or the public to apprehend that the Judge might not be impartial. The relevant test was expressed in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 - 294 as follows:- (The) principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. … Although statements of the principle commonly speak of 'suspicion of bias', we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning. 18. Brennan J, Gaudron J and McHugh J in Re Polites & Anor; Ex Parte The Hoyts Corporation Pty Ltd & Ors (1991) 173 CLR 78 warned against pressing the test in Livesey too far when the qualifications for membership of a tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude in the way in which such issues should be determined or the tribunal's powers exercised. 19. In a Court such as the Land and Environment Court, which exercises a jurisdiction in a specialised field, it is inevitable that the Judges of the Court will be asked to adjudicate in cases where parties may be well known to them. 20. In the joint judgment of their Honours in Polites at p 87, they observed that a prior relationship of legal adviser and client does not generally disqualify the former adviser on becoming a member of a Court from sitting in proceedings before that Court to which the former client is a party. They emphasised the following qualification at p 88:- Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination. 21. None of the circumstances contemplated above arise in the present case. Dr Falamaki bases his claim solely on the basis of the former relationship in a general sense. 22. In the circumstances I am not satisfied there is a reasonable apprehension that the Court will not decide this case impartially or without prejudice. I am further satisfied that an observer who understands in general terms the way in which barristers are briefed by solicitors on behalf of a client of the solicitor would not reasonably apprehend partiality in favour of the council in these proceedings, either consciously or unconsciously. Prejudgment 23. A considered and impartial view of what was said to Dr Falamaki on 4 December 1998 would be that he was being made aware of the prospect that an extension of time might not be granted if he was not able to persuade the Court on the adjourned date at the beginning of term in 1999 that he had made an honest and reasonable attempt to meet the obligations placed upon him by the orders made on 5 November 1998. The remarks made on 4 December 1998 were designed to expose the development of the Court's thinking to the respondent in the context of a perusal of the evidence upon which the respondent proposed to rely. The words used were carefully couched in qualified terms which stated the Court was not proceeding to make a final judgment but rather to warn Dr Falamaki that it was his sole responsibility to comply with the orders. 24. Rather than drawing the hypothetical lay observer to the suggestion of a supervening apprehension of bias, the observations made on 4 December 1998 would be seen as timely encouragement for the respondent to do everything reasonably within his power to rectify the default in complying with the orders by the adjourned date. In that context no apprehension of bias on the account of prejudgment can or does arise. Application for extension of time 25. After discussions at the bar table and outside the Court, the parties have settled upon a form of orders which should be made in the event that the Court is still satisfied to exercise its discretion in favour of Dr Falamaki and further that in the circumstances as a consequence of the exercise of that discretion it should require the certification expressed in the orders. 26. Dr Falamaki has raised a number of peripheral issues which relate to alleged harassment by council, particularly because of his ethnic origin and that he should not suffer any disadvantage following the Court's finding of incompetence on the part of Mr Thomas. 27. There is no evidence to support the former claim and the respondent has the benefit of the exercise of the Court's discretion in his favour partly as a consequent of the latter. 28. It has been open for the respondent to enter into a reasonable discourse with the council and provide the technical information and calculations to demonstrate the structural integrity of the proposed structure. His continued reluctance to enter into a proper discourse is as much to blame for the protracted dispute as any incompetence on the part of the council. 29. It is apparent from reading these reasons for judgment and the reasons published on 19 June 1998 and 5 November 1998 that considerable hostility has been generated between Dr Falamaki and the council. The pertinacity and prevarication by Dr Falamaki in response to what he considers to be an unreasonable and unfair approach by the council has led to a situation which can only be resolved in the long term by the Court demanding that the respondent show that the whole structure, including the residence and retaining walls when completed will adequately and permanently safely retain the surrounding land which is, by now, showing distinct signs of instability and deterioration. 30. It is therefore essential for the tenor of orders made on 5 November 1998 to be maintained. The Court is prepared to indulge the respondent by allowing the time for compliance with the various requirements in proposed Order 2 in accordance with the timetable agreed between the council and the respondent. 31. If the works are not placed in a safe condition and properly certified as contemplated by Order 2, then there is no alternative but for the structures on the land to be demolished and for the land to be restored to its former state. 32. The Court is satisfied therefore that in the event of default of compliance with Order 2, Order 1 should take effect. 33. The Court makes the following orders:- 1. The building partly constructed on the property known as 12 Arter Avenue, Figtree, be demolished and the land restored to its pre-development condition. 2. Order 1 is suspended and to have no effect until further order provided the respondent complies with the following directions and orders: (i) working drawings for the floor slabs of levels 1 and 2 confined within the retaining walls of the structure to be lodged with Wollongong City Council on or before 3 March 1999 and to be accompanied by a certificate by a suitably qualified and independent structural engineer that: (a) the working drawings are in accordance with the certified calculations and design documents for the proposed residence; and (b) the works when carried out in accordance with the working drawings for the floor slabs of levels 1 and 2 confined within the retaining walls of the structure and the working drawings of the proposed retaining walls and drainage shown in Drawing No. 979-1, 979-2 and 979-3 dated 25 January 1999 together with the existing structure will retain the surrounding lands. (ii) Working drawings for the remainder of the proposed residence to be lodged with Wollongong City Council on or before 31 March 1999 and to be accompanied by a certificate by a suitably qualified and independent structural engineer that such working drawings are in accordance with the certified calculations and design documents for the proposed residence. (iii) The respondent shall commence retaining works on site within one month of lodgment of the working drawings and certificate referred to in Order 2(i) subject only to any reasonable extension of time to take account of wet weather. (iv) All structural works necessary for the support of the surrounding lands to be completed within six months of the date of lodgment of the working drawings and certificate referred to in Order 2(i) subject only to any reasonable extension of time to take account of wet weather. (v) A clearing certificate by a suitably qualified and independent structural engineer that the structural works referred to in Order 2(iv) have been erected in accordance with the certified working drawings be provided to Wollongong City Council by the respondent within one month of the completion of those works. Costs 34. Any costs incurred since the Court delivered reasons for judgment on 19 June 1998 have been in connection with applications by the respondent to be allowed further time to meet requirements imposed by the Court as a condition of exercising its discretion in favour of the respondent. It is the general rule that a party which seeks indulgence should bear the burden of the costs incurred. 35. The Court indicated in its reasons published on 19 June 1998 that in the circumstances prevailing up to that time it appeared reasonable that each party should pay its own costs. The applicant, as the successful party, has not been heard to put any argument to the contrary. 36. Dr Falamaki on the other hand has made comprehensive submissions in writing in regard to the question of costs involved in sixteen appearances in the Court since May 1997. Such is the nature of the submissions made by the respondent that it has become necessary to have regard to each one of these appearance on an individual basis. 6 May 1997 37. Bignold J accepted an undertaking by the respondent not to carry out any further excavation or building works without prior notice to council and then adjourned an application for interlocutory injunction part heard with liberty to restore in the meantime to facilitate discussions between the parties and their experts. 38. There is no evidence to support an allegation by Dr Falamaki that the council thereafter adopted a policy to prolong the matter against the interests of the respondent. 39. The effect of the undertaking given by Dr Falamaki on 6 May 1997 was to give the council the relief it was seeking on an interlocutory basis. 10 June 1997 40. The Court, having been informed on 3 June 1997 that negotiations were continuing, it was stood over for callover before the Registrar on 10 June 1997. The Court record notes that by consent the proceedings were stood over for further callover on 18 July 1997. 41. Dr Falamaki claims that because engineering information supplied by him on 30 May 1997 was rejected, the costs in respect of this callover should be paid by the council. 42. In my opinion the callover was necessary as part of the continuing preparation for a trial and in any event it was stood over by consent. 18 July 1997 43. The respondent claims that because a further geotechnical report had been furnished to council on 14 July 1997 and the council required more time to consider the report, the costs of the appearance on 18 July 1997 should be borne by the applicant. 44. In the light of the technical details and subsequent history of these proceedings, the request for further time on the part of the council does not appear to be unreasonable, at least to the extent that there should be any particular order for costs in respect of the appearance on 18 July. 1 August 1997 45. On this day the Registrar made the usual Court direction regarding the filing and serving of affidavits. 23 September 1997 46. The Registrar ordered the applicant to provide calculations made by its geotechnical engineer by 30 September 1997 and extended the time for the filing of the respondent's affidavits to 21 October 1997. 47. The respondent submits that, as a consequence of what he describes as harassment by the applicant continuing to maintain that the structure would collapse, he is entitled to costs of this callover. It nevertheless is my view that the costs were properly incurred in the course of preparation for trial and should therefore be costs in the cause. 22 October 1997 48. Although the respondent claims that the information provided by the council engineer was insufficient, the Registrar ordered him to file and serve affidavits by 12 November 1997. Again this appears to be part of the evolving process in the proceedings and does not justify a special order. 13 November 1997 49. Despite some confusion as to whether the respondent had filed and served the affidavits as required by the direction given on 22 October 1997, the matter was set down for hearing over three days in February 1998. 21 November 1997 50. By Notice of Motion dated 13 November 1997 filed on 20 November 1997 and returnable on 21 November 1997 before the Duty Judge Sheahan J, the respondent moved the Court for orders that the applicant provide a complete set of engineering calculations and costs. Sheahan J stood the Notice of Motion to the Duty Judge's list on 5 December 1997 and made directions for the filing and service of evidence. 5 December 1997 51. On this day I directed the respondent to furnish a request for further and better particulars by 12 December 1997 and for the applicant to provide the particulars by 22 December. The respondent was allowed until 12 January 1998 to file any further affidavits. 52. I agree with the respondent that he was successful on the Notice of Motion, but it was apparent that his request for further information had not been formulated in a sufficiently concise way to enable the council to furnish the required particulars. In those circumstances, it is appropriate for each party to pay its own costs on the Notice of Motion. 11 February 1998 53. Justice Lloyd vacated the hearing dates of 25, 26 and 27 February 1998 as the applicant had not furnished the information and particulars required by the respondent's request until 30 January 1998 contrary to the directions made by me on 5 December 1997. In the circumstances the respondent is entitled to an order for costs in respect of the Notice of Motion dated 4 February 1998 returnable 11 February 1998 and any costs thrown away in relation to the vacation of hearing dates in February 1998. 20 March 1998 54. The time for filing of affidavits in reply was extended to 27 March. The hearing was fixed for 1 June 1998. Both parties were required to attend the callover on this day for the purpose of setting a hearing date. Accordingly it is appropriate that the costs follow the event. 22 May 1998 55. On 18 May 1998 the respondent filed a further Notice of Motion seeking an order to strike out the affidavits relied upon the applicant as they were not in accordance with directions made by Lloyd J. Bignold J refused to make the order. The applicant undertook not to raise any objection at the hearing to evidence contained in an affidavit filed by the respondent in support of the Notice of Motion. Bignold J reserved costs until judgment. The respondent was unsuccessful on the Notice of Motion, but in the circumstances where the directions made by Lloyd J were not complied with strictly, it is appropriate that each party pay their own costs on this Notice of Motion. Hearing 1-5 June 1998 56. It is self evident from the reasons for judgment published on 19 June 1998 that the council was successful in proving its case that the structure on the subject land had been erected contrary to conditions of the building approval. On the other hand, the respondent has been partially successful in that the Court was persuaded to exercise its discretion in his favour by allowing for an opportunity for the structure to be certified with a view to allowing the building to be completed. On a strict view of the result it might be said that the council has been wholly successful in that an order has been made for the removal of the structure unless satisfactory certification occurred. The respondent had argued that there was no breach of the building approval and further that it was not necessary for any certification to be provided beyond that already furnished to the council. On that view the respondent has been wholly unsuccessful. 57. However in the light of the concession by the council that, in the whole of the circumstances of the case, an order each party pay their own costs might be appropriate, I am prepared to take a liberal view in regard to the proceedings as a whole and order that each party pay their own costs up to the date of judgment except in respect of the Notice of Motion returnable 11 February 1998 and any costs thrown away in respect of the hearing dates in February. Costs after 19 June 1998 58. The history of the matter since 19 June 1998 has already been set out in these reasons. I am satisfied that there is no substance in the complaint by the respondent that the council continued to harass him and generally to act in a prejudicial way against his interests after the Court's findings were published. The council has been successful in obtaining the orders that it was seeking. The orders grant an indulgence to the respondent and represent a significant concession in order to afford him the opportunity of overcoming the consequences of building the structure otherwise than in accordance with the conditions of approval. In those circumstances I am satisfied that it is reasonable for the respondent to pay the applicant's costs incurred after 19 June 1998. 59. It is important to mention that I have fulfilled an obligation promised to Dr Falamaki, namely that I would read all of the submissions and supporting material lodged with the Court in relation to the question of costs on his behalf. It is not necessary to make any finding in relation to a substantial part of that material in the light of my determination. However it is appropriate to impress upon Dr Falamaki that a successful party is entitled only to such costs as relate to the conduct of the proceedings, including professional costs, witnesses expenses and disbursements such as filing fees. Many of the items referred to by Dr Falamaki set out as an attachment to his submission dated 20 November 1998 are in the nature of damages. This is best demonstrated by noting that the total claim is $167,968.91 notwithstanding that Dr Falamaki elected to appear in person during the major stages of the case. Orders 1. The Court makes the orders set out at pages 9 and 10 of these reasons for judgment. 2. The applicant is ordered to pay the costs of the respondent in respect of the Notice of Motion returnable 11 February 1998 and any costs thrown away by the respondent following vacation of the hearing dates in February 1998. 3. Subject to Order 2, each party to pay their own costs up to 18 June 1998. 4. The respondent is ordered to pay the costs of the applicant after 18 June 1998. 5. The exhibits may be returned. I hereby certify that this and the preceding 16 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot. Associate 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.