Land and Environment Court of New South Wales CITATION: Preferred Projects (Buildings) Pty Ltd v Warringah Council [1999] NSWLEC 283 PARTIES APPLICANT: Preferred Projects (Buildings) Pty Ltd RESPONDENT: Warringah Council NUMBER: 10574 of 1999 CORAM: Talbot J KEY ISSUES: Bias :- pre-judgment by Commissioner LEGISLATION CITED: DATES OF HEARING: 11/02/1999 EX TEMPORE JUDGMENT DATE: 11/02/1999 APPLICANT: Mr P McEwen SC SOLICITORS: Peter C Prior & Co LEGAL REPRESENTATIVES: RESPONDENT: Mr P Tomasetti (Barrister) SOLICITORS: Wilshire Webb JUDGMENT: IN THE LAND AND Matter No. 10574 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 2 November 1999 Preferred Projects (Buildings) Pty Ltd Applicant v Warringah Council Respondent EX TEMPORE REASONS FOR JUDGMENT 1. HIS HONOUR: On 29 April 1999 Commissioner Watts in proceedings 10738 of 1998 determined an appeal by Preferred Projects (Buildings) Pty Limited, the applicant, against a determination by the respondent, Warringah Council, to refuse a development application. 2. The Commissioner decided that the application for development consent to erect a mixed development at No 33-37 Kentwell Road, Allambie be refused on the ground there was inadequate design of the ramp to the basement car park. 3. In the course of his reasons for judgment the Commissioner made reference to a proposal to reduce the height of the building to ameliorate the detrimental effect of the proposed development on amenity and streetscape, as being acceptable. 4. The applicant says that it has taken account of the Commissioner's observations made in the judgment. It has modified the proposal in some respects. It now seeks development consent for that modified development. 5. At the commencement of these second proceedings, again before Commissioner Watts, the council moved the Court for orders that the Commissioner disqualify himself from hearing the proceedings. After hearing argument this morning, he refused to do so. 6. The Commissioner has agreed that the motion be referred to a Judge for determination. 7. Neither party raises the question of jurisdiction to deal with the motion at this point. Either the Commissioner has referred a question of law for determination by a Judge, pursuant to s 36(5), or the council has appealed against the decision of the Commissioner not to disqualify himself, pursuant to s 56A. The applicant and council are content for the matter to be determined on either basis in order to avoid the consequence of continuing a five day hearing that ultimately may be found to be a waste of time and expense. 8. Although I share the same residual doubts and apprehension expressed by Stein J in Lach and Anor v Snowy River Shire Council No 10298 of 1996, in two judgments dated 29 October 1996, that the question of law really arises at this point of time in the proceedings, in the circumstances it is appropriate and expedient for me to decide whether the Commissioner should have disqualified himself. I will proceed to determine the matter having heard the whole of the argument by both parties. 9. The observations made by Cripps J in Berk v Woollahra Municipal Council and Ors ( 1992) 76 LGRA 138 at 142 are noted. They seem to support the appropriateness of taking the above course. I also note that the express reference to interlocutory decisions in s 57 of the Land and Environment Court Act 1979 (the Court Act) which applies irrespective of whether there has been a final decision. 10. The council asserts that as a consequence of the opinions expressed in the earlier judgment there is an apprehension that the Commissioner has prejudged the issues. The principles in regard to the issue of apprehended prejudgment were explored by Cripps J in Berk at 142 when he said:- The doctrine of apprehended pre-judgment has been viewed by many as an aspect of the doctrine of natural justice or procedural fairness. Not only must a decision-maker not pre-judge an issue but he must not give the appearance of doing so. The dominance of form over substance is justified by the need to maintain public confidence in the integrity of the judicial system. 11. His Honour referred to the decision of the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288, in particular at 292-293, when it was said:- (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. 12. Reference was also made to In Re Polites; Ex parte Hoyts Corporation Pty Limited (his Honour refers to (1991) 65 ALJR 445; it was subsequently reported as (1991) 173 CLR 78). In that case Brennan, Gaudron and McHugh JJ 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 about the way in which such issues should be determined or the tribunal's powers exercised. 13. I take that observation to be in the context of the confined nature of the jurisdiction and the general knowledge, understanding and opinions that a tribunal member may have reached or been caused to make or reach in the course of dealing with matters having a common element. 14. The applicant in Berk placed considerable reliance on Australian National Industries Pty Limited v Spedley Securities Limited (In Liq) (1992) 26 NSWLR 411 where Mahoney JA identified four matters to be taken into account. His Honour said at 438:- In my opinion, four things emerge from the decision in Livesey and the cases which have accede it: (a) the disqualification of a judge for apprehended pre-judgment depends on form rather than substance; (b) whether there is an unacceptable appearance of pre-judgment is to be decided, not according to likelihood, but according to possibility; (c) it is to be judged, not according to what the court and the parties know, but according to the impressions of a lay person who does not know the facts; and (d) there will be an unacceptable appearance of pre-judgment if the judge has previously dealt with the issue of fact or credibility which is before him in the instant case. 15. I accept that a reasonably minded member of the public could reach a conclusion, or entertain a reasonable apprehension, of a Commissioner not bringing to bear on the matter an unbiased and unprejudiced mind without first making inquiries about the nature of the proceedings. The reasonable observer would not necessarily understand or accept the ability of a Commissioner to put aside evidence heard and findings made in a previous case. 16. In Spedley the President referred to what he had said in an earlier decision at 419-420:- Reasonable citizens are not lawyers. Nor are they taken to be entirely ignorant of the legal system or unwilling to make at least a few superficial enquiries about the particular case. They will have neither the time nor the inclination to explore the facts at length. Their approach will involve the wielding of a broad brush. Sadly, in current social circumstances in Australia, the reasonable lay observer may even be a little cynical about our institutions, however undeserved that may be for the judiciary faithfully performing its duties, day by busy day. Therefore, when in the present case a critical decision must be made, it seems to me that it is to be made by reference to an impressionistic, and to some extent superficial, opinion based upon a consideration of the broad features of the allegation made. It is not made upon a detailed exploration of and the lengthy rumination about the legal or other merits of it. 17. Where decisions of fact or credibility have been made the pre-judgment principle will apply. Initially it was put to me that no such issues arise here as they did in Spedley . However, as I understand Mr Tomasetti's ultimate submission, although the credibility question does not arise as it did in Spedley , nevertheless, there are questions of credibility which arise having regard to the fact that, for example, the Commissioner has previously exercised his mind as to whether or not one particular opinion of an expert should be preferred over another. 18. The issues that arise here are planning issues. That must be carefully borne in mind. When the earlier decision was made by the Commissioner on 29 April 1999, certain facts were determined in respect of the development then before the Court. 19. The Commissioner also made reference to prospective changes that were at that time foreshadowed although, as I understand it, not ultimately specifically undertaken. A set of conditions appears to have been before the Court and they contemplated the prospective changes to be made. 20. As I have said, Mr Tomasetti submits that questions of credit do arise in the present circumstances in the context of the weight of opinion that the Commissioner must have placed on the expert evidence in order to make his determination in the earlier proceedings. I am informed, and I do not understand it to be disputed, that the expert witnesses who are to be called in the present case are essentially the same. 21. The council seeks to reargue a number of issues. Inter alia, these include privacy, height, bulk, parking functionality, and internal amenity. Mr McEwen accepts that it is true that the Commissioner has to deal with a raft of facts already decided. He nevertheless submits that there is no reasonable apprehension that the Commissioner cannot approach the determination of these matters afresh and redetermine them. 22. The problem appears to arise as a consequence of the Commissioner pre-judging certain matters and foreshadowing judgment in respect of proposed changes, which have now occurred, as a consequence of the applicant lodging a reactive development application. It is submitted that he has in effect made a prior determination of the application for development consent at least in respect of a number of the issues. In that respect the present case can be distinguished from cases such as Berk where Cripps J observed at 145 that:- It is not said he (the Assessor) has pre-judged any issue he had to decide in the present case. The claim is that notwithstanding no pre-judgment, the contrary is apprehended. 23. Mr Tomasetti seeks to distinguish the present case given that on the face of the judgment the Commissioner has already made a judgment about a number of matters. 24. The apprehension that the Commissioner may not bring an unbiased and open mind to the issues which arise for determination for a second time is, in my opinion, well founded. The present application is an attempt to meet the observations made by the Commissioner on the last occasion. For the council to succeed it is apparent that the Commissioner will be expected to change his mind about opinions and conclusions presented by experts and with whom he has actually chosen to agree or disagree. A fundamental problem stems from the Commissioner expressing views about foreshadowed changes which it was not necessary for him to express in the earlier proceedings. That having been done however, the disinterested observer would be entitled, in my opinion, to apprehend that it is unlikely that the Commissioner can be brought to the position where he actually changes his mind. 25. Cases such as Lach and Berk can be distinguished on the basis that different issues fell to be decided in respect of a different development altogether. Although, as Mr McEwen says, this is a new development, it is nevertheless a development which falls into line with opinions already expressed by the Commissioner and in its favour. 26. I am satisfied therefore that it would not be acceptable for Commissioner Watts to continue to hear the matter on two bases. 27. Firstly, I am satisfied on the facts as they appear from the judgment, and on the basis of the agreed position between the parties, that the Commissioner has already made up his mind in respect of a number of matters which fall for re-determination. That is an inescapable fact and accordingly amounts, in my view, to a pre-judgment in the circumstances of this case. 28. Secondly, I am satisfied that in circumstances where the Commissioner has offered an opinion about what might be acceptable, and what steps might be taken to remedy defects in the earlier development application there is a real apprehension on the part of a casual observer that having invited, as it were, a re-formatting of the development application to meet the criticisms that were raised in the earlier proceedings, he might have pre-determined the matter. A casual observer would be entitled to reach that view. 29. It is unfortunate that the parties find themselves in the situation they are now in, but nevertheless it is a well established principle that the hearing, notwithstanding the nature of the particular proceedings as a planning appeal, should proceed on the basis that there is no apprehension, to the disinterested observer at least, that the Court will not bring an unbiased and open mind to the determination of the issues and the matter as a whole. 30. I therefore hold that Commissioner Watts be disqualified from hearing the proceedings. 31. I direct that the matter be granted expedition. 32. I direct that the parties approach the Registrar this afternoon for the purpose of obtaining an alternative hearing date at the earliest opportunity on an expedited basis. That carries with it, Mr McEwen and Mr Tomasetti, all of the implications that you would fully understand in that respect. Now, if you do not want me to do that you should say so. 33. McEWEN: No, we would have asked your Honour to do just that. 34. HIS HONOUR: It's not a matter for the convenience of counsel, it is a matter in the interests of the parties that the proceedings be brought back to the Court and determined at the earliest possible opportunity. I make that determination after having regard to some of the reasons that I expressed but to a large extent because the parties are in this position not necessarily as a consequence wholly of their own doing. 35. McEWEN: If your Honour hadn't made that direction I would have told your Honour there's an option here that expires some time in the middle of December. 36. HIS HONOUR: Well I can't do any more than make a very strong recommendation that the matter come on for hearing, and if it's tomorrow then that's when it's on. 37. McEWEN: We'd ask that your Honour reserve the costs of this application. 38. HIS HONOUR: Yes, I'll reserve the question of costs. Mr Tomasetti, you don't want to determine that now? 39. TOMASETTI: No, I'm happy for it to be reserved, your Honour. 40. HIS HONOUR: I won't make any comment about the costs. The exhibits may be returned. 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.