Land and Environment Court of New South Wales CITATION : Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd [2009] NSWLEC 228 PROSECUTOR: Director-General, Department of Environment and Climate Change PARTIES : DEFENDANT: Jack & Bill Issa Pty Ltd FILE NUMBER(S) : 50030 of 2009 CORAM: Biscoe J PROSECUTION :- defendant's application for trial judge to disqualify himself on ground of apprehended bias where judge previously sentenced a director of defendant company who had pleaded guilty to the same offence. KEY ISSUES: BIAS:- ground of apprehended bias where judge previously sentenced a director of defendant company who had pleaded guilty to the same offence. LEGISLATION CITED: Native Vegetation Act 2003, ss 12(1), 45(1) Abraham as Tutor for Abraham v St Marks Orthodox Coptic College (No 4) [2008] NSWSC 1031 Addenbrooke Pty Limited v Woollahra Municipal Council [2009] NSWLEC 95 CASES CITED: Australian National Industries Ltd v Spedley Securities Limited (in liq) (1992) 26 NSWLR 4 Ebner v Official Trustee in Bankruptcy [2000 ] HCA 63, (2000) 205 CLR 337 Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 Michael Wilson & Partners Ltd v Robert Colin Nicholls [2009] NSWSC 505 DATES OF HEARING: 15 December 2009 EX TEMPORE JUDGMENT DATE : 15 December 2009 PROSECUTOR: Mr T Howard SOLICITORS Department of Environment, Climate Change and Water LEGAL REPRESENTATIVES: DEFENDANT: Mr B Vasic SOLICITORS Agostino & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 15 December 2009 50030 of 2009 DIRECTOR-GENERAL, DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE v JACK & BILL ISSA PTY LTD EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an application by the defendant that I should disqualify myself from hearing this matter on the ground of apprehended bias. 2 The defendant, Jack & Bill Issa Pty Limited, has pleaded not guilty to an offence against s 12(1) of the Native Vegetation Act 2003 of clearing native vegetation. The trial commenced today. 3 Yesterday I sentenced a director of that company, Mr Mura, who had pleaded guilty to an offence against that section, on the basis that he was a director of that corporation. He admitted that the corporation committed the offence. It followed, by reason of his status as a director of the corporation that he was also guilty by reason of the operation of s 45(1). 4 The basis of the disqualification application is, essentially, that I have already determined in the proceedings against Mr Mura that he was acting on behalf of the company. 5 The authorities relating to apprehended bias were reviewed by me in Addenbrooke Pty Limited v Woollahra Municipal Council [2009] NSWLEC 95. Reference may also be made to Michael Wilson & Partners Ltd v Robert Colin Nicholls [2009] NSWSC 505 (Einstein J). In both cases, unsuccessful applications were made to the judge to disqualify himself on the ground of apprehended bias. 6 The test of apprehended bias was stated in Ebner v Official Trustee in Bankruptcy [2000 ] HCA 63, 205 CLR 337 at [6-7] (omitting citations): "6... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. 7...The question is one of possibility (real and not remote), not probability." 7 The hypothetical fair-minded lay observer is one who is properly informed but is not presumed to have a detailed knowledge of the case: Johnson v Johnson [2000] HCA 48, 201 CLR 488 at [13]. 8 In Australian National Industries Ltd v Spedley Securities Limited (in liq) (1992) 26 NSWLR 411, the Court of Appeal by majority found that the trial judge, having heard the first of a number of related proceedings, should not hear any further proceedings. The further proceedings raised the same issues which depended or might depend upon the evidence of the same witnesses in respect of whom the judge had made adverse findings either of fact or upon their credit or had commented adversely upon their recollection or commercial integrity: at 426 and 432. Mahoney JA who was one of the majority said that he confined what he had to say to the issues of fact and credibility of the kind there in question: at 437. It is in that context that his Honour's later statement is to be understood that there would be an unacceptable appearance of pre-judgment if the judge previously dealt with the issue of fact or credibility which would be before him in the subsequent case: at 438. 9 As Rothman J said in Abraham as Tutor for Abraham v St Marks Orthodox Coptic College (No 4) [2008] NSWSC 1031 at [26], Australian National Industries Ltd v Spedley involved a series of cases in which identical issues arose and in which in the first such case the judgment depended on adverse findings on the credit of witnesses involved in the corporation. That finding was central to the judgment and all other proceedings depended on the same evidence from the same witnesses called by the corporation. 10 Yesterday I sentenced Mr Mura on his plea of guilty essentially on the basis of agreed facts and the prosecutor's uncontested submissions. No significant credit issue arose. The situation in the present case against the corporation is entirely different. The corporation has pleaded not guilty. I understand that there is a statement of agreed facts but it is not in the same terms as the statement of agreed facts in Mr Mura's case. I understand that the corporation will put in contest whether the relevant conduct of Mr Mura was in fact on its behalf. It may be that the credit of Mr Mura will be put in issue. 11 Given the way that the case against Mr Mura proceeded and the completely different circumstances in which I decided it, I do not think that a fair-minded properly informed lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues before me, and would understand that I will decide this case only on the basis of the evidence in this case. 12 The defendant's application that I disqualify myself from hearing this matter is dismissed. 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.