Alphatex Australia v The Hills Shire Council [2009] NSWLEC 1104

Land and Environment Court of New South Wales

CITATION : Alphatex Australia v The Hills Shire Council [2009] NSWLEC 1104

APPLICANT Alphatex Australia PARTIES : RESPONDENT The Hills Shire Council

FILE NUMBER(S) : 11120 of 2008

CORAM: Moore SC

KEY ISSUES: PROCEDURAL FAIRNESS :- Recusal application

CASES CITED: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675

DATES OF HEARING: 11 and 12 March 2009

EX TEMPORE JUDGMENT DATE : 12 March 2009

APPLICANT Mr A Galasso SC INSTRUCTED BY Hannafords Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr C Leggat SC INSTRUCTED BY Maddocks Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

12 March 2009

08/11120 Alphatex Australia v The Hills Shire Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: In this matter, I am now dealing with an application by the respondent council that I should recuse myself from taking further part in the proceedings on the basis of an apprehension of bias.

2 The apprehension of bias is said to arise from a statement I made at the commencement of the on-site taking of evidence from resident objectors, there being in evidence notes from the respondents solicitor that I made a statement to the effect that I am not allowed, as a matter of law, to consider moral issues. That statement is contained in notes of evidence that were admitted, without objection, as Exhibit 7 in these proceedings – although it is agreed by the advocates for the parties that the remarks that appear on page 3 of those notes ought to have been recorded as having occurred at the commencement of the on-site process.