MURLAN CONSULTING PTY LTD v KU-RING-GAI MUNICIPAL COUNCIL [2009] NSWCA 300

New South Wales Court of Appeal

CITATION: MURLAN CONSULTING PTY LTD v KU-RING-GAI MUNICIPAL COUNCIL [2009] NSWCA 300 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7 August 2009

JUDGMENT DATE: 24 September 2009

JUDGMENT OF: Basten JA at 1; Macfarlan JA at 85; Sackville AJA at 86

(1) Set aside the orders made by Pain J on 29 October 2007.

(2) Remit the reamended notice of motion filed on 18 November 2008 for determination by the Land and Environment Court. DECISION: (3) Dismiss the appeal from the orders as to costs made on 15 February 2009.

(4) Order that the first respondent pay the appellant's costs in this Court.

CATCHWORDS: ADMINISTRATIVE LAW – apprehension of bias – association between Acting Commissioner of Land and Environment Court and party to dispute – no direct pecuniary interest – professional and research-related collaboration between Acting Commissioner and local council – whether capable of giving rise to reasonable apprehension of bias – whether decision afflicted by reasonable apprehension of bias can be set aside – Land and Environment Court Act 1979 (NSW), s 14 - APPEAL – erroneous decision of Court below on question of law – evaluative judgment on correct legal principle not made – factual assessment necessary – more than one conclusion reasonably open – whether matter to be remitted – Land and Environment Court Act 1979 (NSW), s 57 - PROCEDURE – Land and Environment Court – challenge to decision of Commissioners after statutory appeal dismissed – original order made irregularly, illegally or against good faith – apprehension of bias – Uniform Civil Procedure Rules 2005 (NSW) r 36.15 - WORDS AND PHRASES – "reasonable apprehension of bias"