Land and Environment Court of New South Wales CITATION : Willoughby City Council v Transport Infrastructure Development Corporation [2008] NSWLEC 231 APPLICANT: Willoughby City Council PARTIES : RESPONDENT: Transport Infrastructure Development Corporation FILE NUMBER(S) : 30213 of 2005; 30841 of 2006 CORAM: Lloyd J KEY ISSUES: Practice and Procedure :- bias - reasonable apprehension of bias - familial association disclosed at commencement of hearing - acting commissioner's son is a partner in legal firm representing a party - logical connection is required between association and feared lack of impartiality - association is tenuous - no basis for disqualification - application dismissed LEGISLATION CITED: Land and Environment Court Act 1979 s 7, s 37(1) and s 37(3) Bienstein v Bienstein (2003) 195 ALR 225 Ebner v The Official Trustee in Bankruptcy (2001) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 CASES CITED: Re JRL; Ex parte CJL (1986) 161 CLR 342 Smits v Roach (2004) 60 NSWLR 711 Smits v Roach (2006) 227 CLR 423 Webb v The Queen (1994) 181 CLR 41 TEXTS CITED: Guide to Judicial Conduct (Second Edition), published for the Council of Chief Justices of Australia by the Australian Institute of Judicial Administration Inc, March 2007 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, [1980] ATS 23, art 14(1) (entered into force 23 March 1976) DATES OF HEARING: 11 August 2008 DATE OF JUDGMENT: 12 August 2008 EX TEMPORE JUDGMENT DATE : 12 August 2008 APPLICANT: P C Tomasetti SC and N M Eastman (barrister) SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: A E Galasso SC and C D Norton (barrister) SOLICITORS: Clayton Utz JUDGMENT: - 7 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J 12 August 2008 LEC Nos. 30213 of 2005 & 30841 of 2006 WILLOUGHBY CITY COUNCIL v TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION [2008] NSWLEC 231 EX TEMPORE JUDGMENT On application to disqualify Acting Commissioner Miller from hearing 1 HIS HONOUR: This is a claim for compensation for the compulsory acquisition of land. Hearing the case with me is Acting Commissioner Craig Miller who is an experienced valuer. When the hearing commenced I advised the parties that Acting Commissioner Miller's son, Mr Nicholas Miller, is a partner in the firm of Clayton Utz, the solicitors who act for the respondent. 2 The council objects to Acting Commissioner Miller hearing the case with me. The relevant facts may be briefly described. Mr Nicholas Miller is based in the Melbourne office of Clayton Utz and has been there for about the last 14 years. He specialises in corporate and commercial transactions with particular emphasis on acquisitions and disposals of businesses and companies including commercial contracts, due diligence and foreign investment approvals. 3 Mr A E Galasso SC, appearing with Mr C D Norton for the respondent, states that Mr Nicholas Miller has had no involvement with the present case. Mr P C Tomasetti SC, appearing with Mr N M Eastman for the council, submits that the familial association between Acting Commissioner Miller and his son gives rise to a ground for the disqualification of the Acting Commissioner for apprehended bias. Mr Tomasetti does not contend actual bias but, as I understand the submission, it is that the familial association gives rise to an appearance of bias. It is submitted that the present case falls within the third category of case described by Deane J in Webb v The Queen (1994) 181 CLR 41. 4 In Webb, Deane J described four categories of disqualification which sometimes overlap (at 74): The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias. 5 As I have said, Mr Tomasetti relies upon the third category of disqualification described by Deane J. He also places considerable reliance on the dissenting judgment of Kirby J in Smits v Roach (2006) 227 CLR 423. There Kirby J cites the International Covenant on Civil and Political Rights (New York, 16 December 1966), which entered into force generally in March 1976, and, in particular, Art 14.1 which prescribes that "everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law". Kirby J states that this encompasses both the "reality and appearance of independence and impartiality" where independence "connotes separation from other branches of government but also independence from the litigants, their interests and their representatives" (at 459 [104]). 6 Mr Tomasetti submits that although it is impossible to ascertain the extent of the relationship between the Acting Commissioner and his son, the fact that his son is a partner at the respondent's instructing law firm detracts from the appearance of impartiality. He submits that the present situation is one where although there may be no actual bias, the connection is sufficient to cause a fair minded lay observer to doubt the independence of the Acting Commissioner. Mr Tomasetti also relies upon the statement in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v The Official Trustee in Bankruptcy (2001) 205 CLR 337 at 348 [20]: In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. 7 According to Mr Tomasetti, the proper course of action would be to ask the Acting Commissioner to stand down and permit me to hear the case alone. Alternatively the expertise of another commissioner should be engaged. 8 It is settled law that the test for determining whether a judicial officer should be disqualified by reason of bias is whether a fair minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the questions to be decided: see Johnson v Johnson (2000) 201 CLR 488 at 492 [11] and Ebner v The Official Trustee in Bankruptcy at 344 [6]. In Ebner, the joint judgment of four members of the High Court states that the application of the apprehension of bias principle requires two steps (at 345 [8]): First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. 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. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 9 In the present case the focus must be on the second step described in Ebner. The bare assertion of an interest is of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulated. In the present case the first step has been identified, namely a familial relationship. In coming to the second step, however, the council's submissions do not show a logical connection between that relationship and the feared deviation from making an impartial decision. 10 As I have noted, Mr Tomasetti relies heavily on the dissenting views of Kirby J in Smits v Roach. The approach of Kirby J both in Smits v Roach and in the earlier case of Ebner is stricter than that expressed in the reasons of the other members of the High Court and whose reasons in both cases are binding upon me. In Smits v Roach the High Court reversed the decision of New South Wales Court of Appeal (reported at (2004) 60 NSWLR 711) which had overturned a judgment of McClellan J, who had refused to disqualify himself in circumstances where the judge's brother was the managing partner of a law firm which was a party in interrelated proceedings. The argument in Smits v Roach was based on association; that is, a close family relationship with a person who, as a partner in the law firm, was said to have a financial interest in the outcome of the litigation between the Smits and the Roach interests. In the joint judgment of Gleeson CJ, Heydon and Crennan JJ, their Honours state (at 443 [52]): It was pointed out in Ebner that the concept of interest (like the concept of association) is protean, and that one of the difficulties with the bright line of automatic disqualification drawn by Dimes v Proprietors of Grand Junction Canal [ (1852) 3 HL Cas 759; 10 ER 301] is that, upon examination, it is not nearly as bright as is sometimes supposed. Many of the cases it covers would in any event obviously be covered by a more general principle. In many other cases, the certainty which is thought to be part of its attraction is illusory. The proposition that Freehills, as a firm, had a financial interest in the outcome of the dispute between the Roach interests and their former solicitors is at least doubtful. The proposition that Mr Geoff McClellan, as one of at least eighty partners, was in such a position that the outcome of the dispute could have more than a negligible effect on his personal finances is even more doubtful. 11 The joint judgment goes on to conclude (at 444 [54]) that the mere assertion of the association does not demonstrate a logical connection between the matter complained of and the feared deviation from impartial decision making. That is, the second step in the application of the apprehension of bias principle described in Ebner was not satisfied. 12 In the present case the association is more tenuous than that in Smits v Roach. It follows that I have come to the view that there is no basis for the disqualification of the Acting Commissioner. 13 I am reinforced in this view by the Guide to Judicial Conduct (Second Edition), published for the Council of Chief Justices of Australia by the Australasian Institute of Judicial Administration Inc, March 2007. Chapter 3 of the guide relates to bias and conflict of interest. Section 3.3.4 covers personal relationships and three categories of relationships are identified as follows: First degree - parent, child, sibling, spouse or domestic partner; Second degree - grandparent, grandchild, "in-laws" of the first degree, aunts, uncles, nephews, nieces; Third degree - cousins and beyond. 14 The guide then states: In addition to such relationships, friendship or past professional or other association with such persons needs to be considered in some situations. There are no hard and fast rules but the following guidance is offered. (a) A judge should not sit on a case in which the judge is in a relationship of the first, second or third degree to a party or the spouse or domestic partner of a party. (b) Where the judge is in a relationship of the first or second degree to counsel or the solicitor having the actual conduct of the case or the spouse or domestic partner of such counsel or solicitor most judges would and should disqualify themselves. Ordinarily there is no reason to do so if the matter is uncontested or is a relatively minor or procedural matter. Nor is there a need to do so merely because the person in question is a partner in, or employee of, a firm of solicitors or public authority acting for a party. In such cases, it is a matter of considering all the circumstances, including the nature and extent of the involvement in the matter of the person in question. Some judges may be aware of cases involving such a relationship when the judge has sat without objection, but current community expectations make such conduct undesirable. ... 15 The guide goes on to cite a number of justifiable exceptions. One of the stated justifiable exceptions is: Where the solicitor-relative is a partner or employee of the solicitor on the record, but has not been involved in the preparation or presentation of the case. 16 Two other considerations are relevant. The first is the role of the Acting Commissioner. Under the Land and Environment Court Act 1979 the Court is constituted by the judge (s 7), who may be assisted by one or more commissioners (s 37(1)). A commissioner assisting the Court may assist and advise the Court but shall not adjudicate on any matter before the Court (s 37(3)). The judicial decision maker in this case is the judge. 17 The second consideration is the instruction by appellate courts to trial judges that they are not to accede too readily to applications for disqualification on the ground of apprehended bias. In Ebner the joint judgment states (at 348 [19]-[20]): Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. 18 In Re JRL; Ex parte CJL (1986) 161 CLR 342, Mason J said (at 352): Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 19 In Bienstein v Bienstein (2003) 195 ALR 225, McHugh, Kirby and Callinan JJ said (at 233 [36]): A judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established. 20 In the present case the association is tenuous. The ground could not be described as substantial. There is thus no basis for the disqualification of Acting Commissioner Miller. I hereby certify that the preceding 20 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 12 August 2008 ********** 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.