Land and Environment Court of New South Wales CITATION : Castle Constructions Pty Limited v North Sydney Council [2008] NSWLEC 1355 APPLICANT Castle Constructions Pty Limited PARTIES : RESPONDENT North Sydney Council FILE NUMBER(S) : 10654 of 2008 CORAM: Bly C KEY ISSUES: Appeal :- Notice of Motion to recuse Commissioner from presiding over a case management LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Castle Constructions Pty Limited v North Sydney Council [2008] NSWLEC 1168 CASES CITED: Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337 Preferred Projects (Buildings) Pty Limited v Warringah Council BC9908351 Australian National Industries Limited v Spedley Securities Limited (1992) NSWLR 411 at 422 DATES OF HEARING: 15/08/2008 EX TEMPORE JUDGMENT DATE : 15 August 2008 APPLICANT Mr T. Robertson, SC Instructed by: Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Ms H. Irish, barrister Instructed by: McLachlan Thorpe Partners JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 15 August 2008 10654 of 2008 Castle Constructions Pty Limited v North Sydney Council JUDGMENT 1 The Chief Judge has allocated this Class 1 appeal involving a residential flat building and mixed use development at 136-140 Walker Street, North Sydney, to me for case management. The respondent council filed in Court on 14 August 2008 a Notice of Motion seeking orders that I recuse myself from presiding over this case management. That Notice of Motion and the attached affidavit of Mark Nathan Jaku does not disclose any reasoning to support the motion, such reasoning being provided at the hearing. 2 In short, the council submits that were I to conduct the case management, any decisions that I might make in that regard might be affected by a reasonable apprehension of bias. This relies on the fact that on 7 May 2008 I decided the matter of Castle Constructions Pty Limited v North Sydney Council [2008] NSWLEC 1168 (presently the subject of an appeal under s 56A of the Environmental Planning and Assessment Act, 1979), that appeal involving a development application very much like the one the subject of the present application. 3 More particularly, and by reference to para 35 of that judgment, it was submitted, in effect, that I did more than simply refuse the development application but went further and described a building height that might comply with the planning controls. Because the subject development application seems to comply with that described building height, a fair-minded informed lay observer might anticipate that I would pre-judge it and not deal with it afresh and on its merits. The Council also submits that there is no relevant distinction between case management and the merits hearing of the case, in part at least, because whoever deals with the case management will come into contact with the issues that will or may be tested at the hearing. The applicant submits to the contrary, arguing that a fair-minded lay observer who can be expected to be in possession of the facts will be able to distinguish between the pre-trial management of the case and the case itself. 4 The applicant makes reference to the High Court decision in Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337 that distinguishes between actual bias and the reasonable apprehension of bias, the latter being the question for me to decide and referred to as the apprehension of bias principle. In effect the application of this principle requires, relevantly here, two steps, the first being the identification of what might lead to deciding a particular question and the second that there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. In this instance this can be interpreted to mean in the course of the case management. 5 Whilst there was reference to a lay person who does not need to know all of the facts in Preferred Projects (Buildings) Pty Limited v Warringah Council BC9908351, it was agreed that such a person can be assumed to be appropriately informed. Plainly for such a hypothetical person to reach a conclusion as to whether or not they would apprehend any bias in the decision maker they need to have some information. 6 I thus accept, for the purposes of deciding this motion, that such a person would be apprised of sufficient facts about the matter about which the question of apprehended bias arises. This would here comprise the fact that the question is to be applied to the pre-trial management of the case and not to the ultimate decision as to whether or not the development is acceptable. I have no doubt that a hypothetical lay observer would have no difficulty understanding this distinction in the context of any other relevant matters including the fact that I heard and gave judgment in the previous merits appeal. In this regard I note that the Court of Appeal in Australian National Industries Limited v Spedley Securities Limited (1992) NSWLR 411 at 422 recognised the distinction between interlocutory proceedings and the trial itself. 7 As for the tests in Ebner the relationship between my merits decision in the previous matter and the present development application is reasonably plain. However the relationship between my judgment and the case management of the present application can be readily distinguished, being less direct and having a different character, notwithstanding that at this point in time, some of the issues that were in dispute continue to be in dispute and might be the subject of case management. 8 Drawing all of these circumstances together, I am satisfied that a relationship, sufficient for an informed lay observer to apprehend that I would be biased in my management of the case, has not been established. 9 The Notice of Motion is therefore dismissed. ___________________ T A Bly Commissioner of the Court ljr 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. 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