Reported Decision : (2003) 126 LGERA 339 New South Wales Court of Appeal CITATION : Baulkham Hills Shire Council v Basemount Pty Ltd & Anor [2003] NSWCA 189 HEARING DATE(S) : 7 July 2003 JUDGMENT DATE : 18 July 2003 JUDGMENT OF : Handley JA at 1; Ipp JA at 2; Tobias JA at 3 DECISION : a) Appeal allowed; b) Set aside Order (3) made by Pearlman J on 2 October 2002 and in lieu thereof make the following order: "Both proceedings are to be remitted to a Commissioner or Commissioners (other than Commissioner Murrell) or to a Judge of the Court for re-hearing and re-determination conformably with these reasons for judgment"; c) The respondents to pay the costs of the Council in the proceedings before Pearlman J; d) The respondents to pay the costs of the summons for leave to appeal and of the appeal but to have in respect thereof, if otherwise qualified, a certificate under the Suitors' Fund Act 1951. CATCHWORDS : Development applications granted by Commissioner in Land & Environment Court - Appeal by Council - Whether matter should be remitted to a different Commissioner on basis of reasonable apprehension of bias - ND LEGISLATION CITED : Land & Environment Court Act 1979, s30(1), s56A(1), s56A(2), s56A(2)(b) Livesey v NSW Bar Association (1983) 151 CLR 288 Burwood Municipal Council v Harvey (1995) 86 LGERA 389 Kekatos v The Council of the Law Society of NSW (1999) NSWCA 288 CASES CITED : Barton v Walker (1979) 2 NSWLR 740 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 re JRL; Ex parte CJL (1986) 161 CLR 342 Preferred Projects (Buildings) v Warringah Council (1999) 106 LGERA 144 PARTIES : Baulkham Hills Shire Council Basemount Pty Ltd and Gaofind Pty Ltd FILE NUMBER(S) : CA 41184/02 COUNSEL : C - Mr P Tomasetti O - Mr J Ayling SC / Mr A Pickles SOLICITORS : C - Corrs Chambers Westgarth O- Avendra Singh Strati & Kam LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT 11017/00; 11137/00 FILE NUMBER(S) : LOWER COURT Pearlman J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41184 of 2002 HANDLEY JA IPP JA TOBIAS JA 18 July 2003 BAULKHAM HILLS SHIRE COUNCIL v BASEMOUNT PTY LTD & ANOR Judgment 1 HANDLEY JA: I agree with Tobias JA. 2 IPP JA: I agree with Tobias JA. 3 TOBIAS JA: This an application for leave to appeal against orders of Pearlman J, Chief Judge of the Land & Environment Court, whereby her Honour allowed two appeals from a decision of Commissioner Murrell, set aside her decision and remitted the relevant proceedings to the Land & Environment Court for re-hearing and re-determination conformably with her Honour's reasons for judgment. The appeal itself was heard concurrently with the summons for leave. At the conclusion of the hearing the Court granted leave to appeal but reserved its decision with respect to the appeal proper. 4 The decision of Commissioner Murrell related to two appeals in respect of two separate development applications for the erection of residential buildings on adjoining sites. The first appeal related to five properties known as 11-13 Garthowen Crescent and 292-296 Old Northern Road, Castle Hill (the first appeal). The second appeal related to four properties known as 9 Garthowen Crescent and 286A-290 Old Northern Road, Castle Hill (the second appeal). Both appeals were, by consent, heard together upon the basis that evidence in one should be considered as evidence in the other. 5 The hearing of the appeals before the Commissioner extended over some twelve days. The matter was concluded by the filing of written submissions in each appeal on 14 December 2001. On 15 March 2002 the Commissioner delivered judgment whereby she upheld both appeals and granted consent to each of the development applications subject to certain conditions. One such condition was imposed by the Commissioner on the consent granted by her with respect to the development the subject of the first appeal but without the approval, request or, for that matter, the knowledge of the parties. It required vehicular egress from that development to Old Northern Road. 6 The appellant Council (the Council) appealed to the Land & Environment Court under s 56A(1) of the Land & Environment Court Act 1979 (the Court Act) alleging that the Commissioner had made a material error of law. On the day prior to the hearing before Pearlman J, the applicants in the appeals before the Commissioner (the respondents before this Court), conceded that, in making her decision, the Commissioner had made such an error. Suffice it to say that the nature of the error was that the Commissioner had failed to accord procedural fairness to the Council on the issue of vehicular egress from the site of the first appeal to Old Northern Road and in imposing the condition that that egress be provided. An error of law having been conceded, the dispute between the parties before the primary judge was as to the orders her Honour should make to remedy that error. 7 Two issues arose before the primary judge for determination. The first was whether the Commissioner's error in the first appeal affected her decision with respect to the second appeal. The second was whether one or both of the appeals should be remitted to Commissioner Murrell for re-determination or whether they should be remitted to a Commissioner or a Judge of the Land & Environment Court other than Commissioner Murrell. 8 The first issue raised the question of whether the Commissioner's error affected her determination of both appeals or whether it only affected her determination of the first appeal given that the relevant condition with respect to vehicular egress to Old Northern Road related only to the development the subject of the first appeal and not the second appeal. Her Honour resolved this question in favour of the Council by holding that the Commissioner's error affected both appeals. Her reasons for so finding were as follows: "12. Nevertheless, having regard to the whole of the Commissioner's judgment, it is clear that her approach to the assessment of the proposed development was for the most part to consider them as a whole and not in isolation. Furthermore, that was the manner in which, by agreement between the parties, the hearing was conducted. I have not overlooked the fact that there was no condition imposed on the development consents that required both proposals to be carried out jointly or prevented the carrying out of one without the other. However, although the egress related to one proposal only, it was considered by the Commissioner in the whole context. The purpose, of course, in remission of the proceedings by reason of the error of law is to redress the lack of procedural fairness, and to give the council the opportunity to call evidence and be heard on the issue of that egress. The consequence may be a determination that the egress should be provided for, or that it should not, but in either event, it will be necessary to reassess its impact in the overall assessment, and in particular so far as concerns matters of traffic and visual aspect from the point of view of not merely one, but both developments viewed together and viewed separately. 13. Having regard to the way in which the hearing was conducted, to the Commissioner's approach to the assessment of the development applications, and the particular impact to which further assessment must be directed, I conclude that the error of law is not confined to the appeal concerning only 11-13 Garthowen, and it affected both appeals. Both appeals should, accordingly, be remitted for re-determination." 9 The primary judge resolved the second issue in favour of the respondents in that she rejected the submission of the Council that the proceedings should be remitted back to a Commissioner or a Judge of the Land & Environment Court other than Commissioner Murrell. The basis of the Council's submission before the primary judge was that there was a reasonable apprehension that Commissioner Murrell would not give the Council a fair hearing on the re-hearing and re-determination of the appeals as a consequence of her excessive questioning at the hearing before her of two of the Council's witnesses, Mr McKenzie, a town planner, and Mr Lee, the Council's Manager, Strategic Planning. Reliance was placed upon the principle enunciated by the High Court of Australia in Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-394 that: "…..a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." It was submitted that the Commissioner's conduct had crossed the line from the permissible to the impermissible: cf. Burwood Municipal Council v Harvey (1995) 86 LGERA 389; Kekatos v The Council of the Law Society of New South Wales (1999) NSWCA 288 at [60]-[67] per Giles JA (with whom Handley and Powell JJA agreed). 10 In support of its submissions, the Council referred to the transcript of evidence before the Commissioner and to the extensive questioning by her of the two witnesses referred to. The Council's submissions on this issue before the primary judge were repeated before us. However for reasons which will become apparent, it is unnecessary to deal in any detail with those submissions or the voluminous evidentiary material on which they were founded. Suffice it to say that the primary judge, having recorded that she had read every one of the pages where the Commissioner had questioned the witnesses referred to, concluded that her questioning did not cross the boundary between permissible and impermissible judicial intervention so as to cause a fair-minded person to entertain a reasonable apprehension that Commissioner Murrell might not bring an impartial and unprejudiced mind to the resolution of the issues between the parties on any re-hearing of the appeals. The primary judge's conclusions on this issue were expressed in the following terms: "18. Secondly, nothing in the Commissioner's conduct of the trial nor in her judgment indicates that she held a particular view about the credit of either of the two witnesses, or that she was so wedded to the idea of egress to Old Northern Road that she could not now bring an impartial mind to bear upon the assessment of its impact. Her error of law was not pre-judgment of the issue of traffic access, but her failure to accord procedural fairness to the council on that issue (cf Livesey v NSW Bar Association at p300.) 19. For these reasons, I consider that the council has not made out a case justifying a reasonable apprehension that the Commissioner might not bring an impartial and unprejudiced mind to the re-determination of the appeals." 11 In the foregoing circumstances, the primary judge allowed the appeal, set aside the Commissioner's determinations in both appeals and made the following order: "(3) Both proceedings are to be remitted to the Court for re-hearing and re-determination conformably with these reasons for judgment." 12 The final matter determined by the primary judge was the question of the costs of the proceedings before her. Although her Honour accepted that in a s 56A appeal costs normally follow the event, in the circumstances she considered that there should be no order as to costs. The basis of this exercise of discretion was that firstly, the respondents had conceded that the Commissioner had erred in law (albeit at a late stage) and, secondly, the Council had not been entirely successful in its case having succeeded on the first issue but not the second issue. I only mention the question of costs as the Council seeks an order that the costs of the s 56A appeal before the primary judge should be paid by the respondents. Of course, in the event that the appeal to this Court is upheld so that the primary judge's decision regarding the second issue which she resolved in favour of the respondents is reversed, then the Council would have wholly succeeded before her Honour and would be entitled to an order for costs with respect to the s 56A appeal. 13 When the appeal before this Court commenced the Court called first upon senior counsel for the respondents. It appeared to us that, given the unconditional order of the primary judge that both appeals be remitted to the Land & Environment Court for re-hearing and re-determination and her Honour's conclusion in paragraph 12 of her judgment that the error of law committed by the Commissioner reflected upon the overall assessment of the merits of the developments proposed in both appeals, it followed that, having already determined all merit issues in the appeals in favour of the respondents, the Commissioner had necessarily prejudged those issues which, by the primary judge's order, she would, if the appeals were remitted to her, be required to reassess. In this regard, it was noted by the Court that no application for leave to appeal had been made by the respondents against the primary judge's decision that the Commissioner's error had infected her assessment of both appeals. In other words, no application had been made to suggest that the primary judge had erred in law by effectively declining to hold that the Commissioner's error could be confined to a single issue which could be severed from the other merit considerations involved in the determination of the relevant development applications. 14 In response to the foregoing the respondents made two submissions. The first was that it would not have been open to the primary judge to make an order remitting the re-hearing and re-determination of the appeals to a Commissioner other than Commissioner Murrell given that, in her capacity as Chief Judge, she was empowered by s 30(1) of the Court Act to make arrangements as to the Commissioner who was to exercise the Land & Environment Court's jurisdiction on any such re-hearing. It was submitted that there would be a real difficulty in the primary judge making an order of the type sought by the Council in circumstances where it could not be enforced against her in the sense that it would not bind her to exercise her administrative powers under s 30(1) in a manner consistent with any remittal order made by her on the s 56A appeal. Support for that proposition was founded on a passage in the judgment of Samuels JA in Barton v Walker (1979) 2 NSWLR 740 at 749. 15 The respondents' second submission was that on a fair reading of paragraphs 12 and 18 of her Honour's judgment, she had effectively indicated that the only relevance of the Commissioner's desire to achieve vehicular egress to Old Northern Road from the site of the first appeal was the impact of that egress on matters of traffic upon, and the visual effect thereof from Old Northern Road. It was thus submitted that Order (3) made by her Honour remitting the appeals for re-hearing and re-determination was governed by the words "conformably with these reasons for judgment" which was a reference back to the issue of the limited visual and traffic impact of the proposed egress as identified in the paragraphs of her Honour's judgment to which I have referred. 16 In my opinion, each of these submissions should, with respect, be rejected. As to the first, the primary judge's powers on the hearing of an appeal under s 56A(1) of the Court Act was, according to s56A(2), to "(a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit" 17 There is no doubt that the reference to "the Commissioner or Commissioners" in (a) above is a reference to the Commissioner or Commissioners from whose decision an appeal under s 56A(1) on a question of law is brought. However, it is clear from the wide terms of (b) that an order under that paragraph could be made remitting the matter, in an appropriate case, to a Commissioner or Commissioners other than the Commissioner or Commissioners from whose decision the appeal had been brought. In these circumstances once such an order under (b) has been made, it stands as an order of the Land & Environment Court whether made by the Chief Judge or some other judge thereof. It is inconceivable that, when exercising her administrative powers under s 30(1) of the Court Act, the Chief Judge would arrange for a re-hearing to take place before a Commissioner who was expressly excluded from partaking in such a hearing by an order made pursuant to s 56A(2)(b). Accordingly, I do not regard the dictum of Samuels JA in Barton v Walker as standing in the way of an exclusionary order of the type to which I have referred. If this Court can make such an order (and it has) then so also can the Chief Judge of the Land & Environment Court. 18 As to the second submission, I do not consider that paragraphs 12 and 18 of the primary judge's reasons should be understood in the manner contended for. The order she made did not limit the issues to be re-litigated on the re-hearing and so it encompassed all of the merit issues which had been litigated before Commissioner Murrell which she had resolved in favour of the respondents. It follows that it is not possible to limit the remitter in the manner suggested by the respondents in reliance upon the words "conformably with these reasons for judgment" as contained in Order (3). 19 The nature of the pre-judgment principle was explained by Mahoney JA (with whom Meagher JA agreed) in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. At 435E his Honour observed: "Pre-judgment refers more to the fact or suggested likelihood that, because he has once reached a conclusion upon an issue of fact or credit one way, a judge will subsequently decide the same issue in the same way." At 437F his Honour continued: "What is here in question is pre-judgment. That involves that the judge must decide the case before him upon the basis of the material placed before him in the case and by his appreciation of that evidence, including the witnesses and the evidence they have given, in the instant case. One of the forms of pre-judgment – there are, of course, others – is determining a matter in a particular way because, in another case, the judge has decided the same or a similar matter in the same way." 20 Mahoney JA then proceeded to discuss in more detail the High Court authorities dealing with the effect of previous decisions of fact or of credibility and, at 442D, concluded in the following terms: "With only such reservations as were indicated in, for example, the Livesey case (at 299-300) it is, in my opinion, proper to approach a question of this kind upon the basis that, where decisions of fact or credibility have been made, the pre-judgment principle will apply unless it appears that there is a 'necessity' for the judge to sit or that the case is 'an extraordinary case' or one which involves 'special circumstances'." In the present case it was not suggested that any of those exceptions applied. 21 It is true that in Spedley Securities Mahoney JA was speaking of a situation where a judge sits to hear a case at first instance after he or she has, in a previous case, expressed clear views either upon a question of fact which constitutes a live and significant issue in the subsequent case or upon the credit of a witness whose evidence is of significance on such a question of fact. In the present case and in one sense, Commissioner Murrell has not expressed clear views upon a question of fact "in another case" being one disassociated with that which she would be required to re-hear. However, in my opinion, the present case is in fact a fortiori. A clearer case of pre-judgment could not be envisaged than where a judicial officer has determined in a considered judgment questions of fact with respect to the very same issues which he or she is then required to re-determine on a re-hearing of the same case. In fairness, it should be said that senior counsel for the respondents did not suggest to the contrary. What he did do was to refer the Court to the following passage from the judgment of Mason J (as he then was) in re JRL; Ex parte CJL (1986) 161 CLR 342 at 352: "It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice rather than he will decide the case adversely to one party. There may be many situations in which previous decisions of the judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be 'firmly established'." 22 In my opinion the present case does not fall within the above principle: it is not one whereby the reasonable apprehension is that Commissioner Murrell will decide the case adversely to the Council. Rather, it is one in which there is a reasonable apprehension that she will not decide the case impartially in the sense that she has (understandably) pre-judged the very issues of fact in respect of the very same development application which she would be required, if she was to re-hear the matter, to now determine afresh. In my opinion, although not identical, the present case has significant similarities to the facts in Preferred Projects (Buildings) v Warringah Council (1999) 106 LGERA 144 where Talbot J held that the relevant Commissioner should be disqualified from hearing a merits appeal where, in a previous case involving a similar development upon the same land, he had determined a number of merit issues which would fall for re-determination at the new hearing including the form of development he would be prepared to approve. 23 Before concluding, I should make it clear that the present case is being decided on its own facts. It should not be assumed that merely because a Commissioner's decision is set aside on a s 56A appeal on the ground of error of law that it necessarily follows that any re-hearing and re-determination of the appeal should be by a Commissioner other than the Commissioner from whose decision the appeal was brought. There are many errors of law which would not require an exclusionary order under s 56A(2)(b). Thus if a Commissioner has mistaken the law and asked himself or herself the wrong question, there may be no reason why the appeal should not be remitted to that Commissioner to be determined by him or her in accordance with law. Again, where the error only involves the misconstruction of a statutory provision or the like there may be no reason why the Court as originally constituted cannot apply the facts as found by it to the law as declared on the appeal. In such cases the Commissioner's earlier decision may have been based on a false issue or be otherwise severable so that there will have been no pre-judgment on the real issue. 24 In the present case the error of law, the denial of natural justice to the Council, was not exclusively collateral to the merit issues as it involved a question of traffic generation and visual impact. However, it might fairly be said that to impose the impugned condition without notice, evidence or argument and contrary to the respondents' disclaimer, involved pre-judgment of quite a high order necessitating remitter to a bench differently constituted. In my opinion, the primary judge erred in law in declining to so order. 25 The foregoing reasons are not intended to lay down any principle of general application to s 56A appeals. The appropriateness of an exclusionary order on a remitter will always depend on the facts and circumstances of the particular case. 26 As I have already noted, the Council also sought to appeal the decision of the primary judge that there be no order for costs of the appeal before her. Given that that part of the decision of her Honour on which she based her decision on costs is about to be reversed, there is no reason why the ordinary rule that costs follow the event should not apply. In this regard, I do not understand senior counsel for the respondents to suggest otherwise. 27 Accordingly, I would propose the following orders: (a) Appeals allowed; (b) Set aside Order (3) made by Pearlman J on 2 October 2002 and in lieu thereof making the following order: "Both proceedings are to be remitted to a Commissioner or Commissioners (other than Commissioner Murrell) or to a Judge of the Court for re-hearing and re-determination conformably with these reasons for judgment." (c) The respondents to pay the costs of the Council of the proceedings before Pearlman J; (d) The respondents to pay the costs of the summons for leave to appeal and the appeal but to have, in respect thereof, if otherwise qualified, a certificate under the Suitors' Fund Act 1951. ********** Last Modified: 07/23/2003 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.