Hutchinson v Roads and Traffic Authority & Anor [2000] NSWCA 332

New South Wales Court of Appeal

CITATION : Hutchinson v Roads and Traffic Authority & Anor [2000] NSWCA 332 FILE NUMBER(S) : CA 41005/98 HEARING DATE(S) : 25 May 2000 JUDGMENT DATE : 24 November 2000

PARTIES : Rowan Hutchinson - Appellant Roads and Traffic Authority - Respondent JUDGMENT OF : Meagher JA at 1; Powell JA at 2; Giles JA at 7

LOWER COURT JURISDICTION : Government and Related Employees Appeal Tribunal LOWER COURT 259/98 FILE NUMBER(S) : LOWER COURT J Lynn, P Collins, G Forster JUDICIAL OFFICER :

COUNSEL : S Rothman SC & C Howell - Apellant J J Fernon - Respondent SOLICITORS : Lawrence N Dunn, Collaroy - Appellant Henry Davis York, Respondent CATCHWORDS : DISQUALIFICATION FOR APPREHENDED BIAS - Tribunal dismisses appeal - e-mail sent by President of Tribunal with observation about appellant - another appeal by appellant - reasonable observer might think would not bring impartial mind to appeal - President should have disqualified himself. WAIVER - Appellant continuing with appeal after disqualification application failed did not constitute waiver. PROCEDURAL FAIRNESS - hearing by President was denial of procedural fairness - was error of law - prerogative relief available. DECISION ON QUESTION OF LAW - refusal to disqualify was not a decision on a question of law within s 54 of the GREAT Act. DISQUALIFICATION FOR APPREHENDED BIAS - Livesey v The New South Wales Bar Association (1983) 151 CLR 288, applied; Australian National Industries Ltd v Spedley Securities Ltd (in liquidation) (1992) 26 NSWLR 411; Gainsford v Hunt (1996) 71 FCR 187, referred to. WAIVER - Vakauta v Kelly (1989) 167 CLR 568; Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281, referred to. PROCEDURAL FAIRNESS - Najjar v Haines (1991) 25 NSWLR 224; Escobar v Spindaleri (1986) 7 NSWLR 51; CASES CITED: Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354; Craig v The State of South Australia (1995) 184 CLR 163; R v Lord President of the Privy Council; ex parte Page (1993) AC 682; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374, referred to. DECISION ON QUESTION OF LAW - Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720; Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Maritime Services Board v Murray (1993) 52 IR 455; Commissioner of Police v Donlan (CA, 8 August 1995, unreported); Wijesuriya v The Director General of Conservation and Land Management (1994) 54 IR 384, referred to. DECISION : (1) In the appeal, the appeal be dismissed. (2) In the summons - (a) that the record of the Government and Related Employees Appeal Tribunal ("the Tribunal") in appeal 310 of 1998 be brought into this Court; (b) that the order of the Tribunal disallowing the appeal and confirming the decision of dismissal under review be quashed; (c) that the proceedings be returned to the Tribunal for determinaiton according to law. (3) That the respondent in the appeal/first opponent in the summons pay the costs of the appellant in the appeal/claimant in the summons, and have a certificate under the Suitors Fund Act if otherwise qualified and entitled thereto.