Land and Environment Court New South Wales Medium Neutral Citation: Lane Cove Council v Ross (No 11) [2013] NSWLEC 81 Hearing dates: 27, 28 and 29 May 2013 Decision date: 29 May 2013 Jurisdiction: Class 4 Before: Pepper J Decision: Application for recusal refused with costs. Exhibits to be returned. Catchwords: PROCEDURE: application for recusal on the grounds of actual and apprehended bias - applicable principles - no apprehended bias - no actual bias - application refused. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 76A, 96 Cases Cited: Barakat v Goritsas (No 2) [2012] NSWCA 36 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Lane Cove Council v Ross [2012] NSWLEC 153 Lane Cove Council v Ross (No 2) [2012] NSWLEC 160 Lane Cove Council v Ross (No 3) [2012] NSWLEC 171 Lane Cove Council v Ross (No 4) [2012] NSWLEC 191 Lane Cove Council v Ross (No 5) [2013] NSWLEC 17 Lane Cove Council v Ross (No 6) [2013] NSWLEC 74 Lane Cove Council v Ross (No 8) [2013] NSWLEC 77 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Ross v Lane Cove Council [2012] NSWLEC 1364 Spencer v Bamber [2012] NSWCA 274 Category: Interlocutory applications Parties: Lane Cove Council (Applicant) Mr Raymond Ross (Respondent) Representation: Mr N Eastman (Applicant) Mr R Ross (in person) (Respondent) Pikes & Verekers Lawyers (Applicant) N/A (Respondent) File Number(s): 41242 of 2011 EX TEMPORE Judgment Mr Ross Makes a Recusal Application on the Grounds of Apprehended and Actual Bias 1This is an application made by Mr Ross, foreshadowed on the first day of a three day resumed Class 4 proceeding, but not pressed until the afternoon of that day, to recuse myself on the grounds of both actual and apprehended bias. 2The background to this application can be found in the following decisions: Lane Cove Council v Ross [2012] NSWLEC 153; Lane Cove Council v Ross (No 2) [2012] NSWLEC 160; Lane Cove Council v Ross (No 3) [2012] NSWLEC 171; Lane Cove Council v Ross (No 4) [2012] NSWLEC 191 and Lane Cove Council v Ross (No 5) [2013] NSWLEC 17; Lane Cove Council v Ross (No 6) [2013] NSWLEC 74 and Ross v Lane Cove Council [2012] NSWLEC 1364. 3In support of the application, Mr Ross relied on an affidavit sworn by him on 27 May 2013, filed with leave in the Court. It was not served on Lane Cove Council ("the council") prior to it being filed, nor was the recusal application foreshadowed by Mr Ross prior to the first day of the resumed hearing. 4It should be noted that on the second day of the recusal application, Mr Ross sought to file in Court what he described as an "amended" version of his affidavit. The amendments consisted of selective excerpts of transcript that had not been set out in his affidavit filed on 27 May 2013. The application to file the amended affidavit was opposed by the council and was refused by me (Lane Cove Council v Ross (No 8) [2013] NSWLEC 77). 5Consequent upon the refusal, Mr Ross sought a brief adjournment to tender a full transcript of the hearing in this matter on 13 August 2012 (see Ross (No 4)). Mr Ross took the Court to various passages in the transcript purportedly demonstrating the bias he alleges (for example: T10.43-10.47 and 14.08-14.18). I have had regard to these passages but I have not reproduced them in this judgment for the sake of brevity. 6The council objected to a number of paragraphs contained in Mr Ross' affidavit. Most were on the grounds of relevance, and some on the basis of the scandalous nature of the material. In ruling upon the objections to his affidavit, wherever possible considerable latitude was given to Mr Ross in light of the fact that he is an unrepresented litigant. Apprehended Bias 7The events and conduct leading up to what Mr Ross described as his "perception" of bias were stated in his affidavit and submissions to be as follows: (a) I demonstrated extreme hostility towards Mr Ross because he appeared late for a mention on 12 July 2012, in which orders were initially made in his absence, but which subsequently resulted in the parties returning to the Court to deal with the matter later that day; (b) Mr Ross' failure to attend when the matter was listed on 24 July 2012 due to his error noting the date as "25 July 2012", which resulted in orders being made in his absence; (c) an alleged agreement between the Court, the council and Mr Ross made on 13 August 2012, to adjourn part of the substantive hearing of this matter in order to allow a s 96 modification application under the Environmental Planning and Assessment Act 1979 ("the EPAA") to proceed. At that hearing, declaratory and interlocutory relief was granted (in accordance with orders 1, 2 and 3 of the summons presently before the Court) which was, according to Mr Ross, consented to "without admission" by him and on the basis that there would be no order as to costs (those proceedings are the subject of Ross (No 4)). It was Mr Ross' belief that what was to have taken place on 13 August 2012 was a hearing of his notice of motion to stay the proceedings to allow a merit assessment of the impugned development to proceed. Instead, I handed down "a scathing judgement" as if there had been a full hearing on the merits of the Class 4 proceeding and adverse findings of fact were made. In this regard, Mr Ross complains that I did not permit the tender of an affidavit sworn by him on that date. This is important because my findings were, according to him, based "solely on allegations made in the affidavit of Adrian Moore which I had not been given the opportunity to test and which was proven to be almost entirely false in subsequent class 1 proceedings". It is also claimed by Mr Ross that I made no mention in the judgment of either the hearing of his notice of motion seeking a stay or of his consent on a "without admission" basis to the injunctive and declaratory relief sought by the council; (d) the result of the adverse findings made in the judgment on 13 August 2012 was to "colour all proceedings and considerations thereafter". This included a subsequent notice of motion by Mr Ross to set aside the orders made on 13 August 2012 (Lane Cove Council v Ross (No 5) [2013] NSWLEC 17). Mr Ross complains that notwithstanding that I confirmed during the hearing of that motion that the council was wrong in their understanding of the orders made on 13 August 2012, I nevertheless dismissed his motion and awarded costs to the council. Furthermore, at that hearing Mr Ross raised the issue of the unsubstantiated findings made by me on 13 August 2012, to which I responded that the findings were not based on any materials submitted by council, but on admissions made in Mr Ross' affidavit material; (e) during the hearing on 13 August 2012, I allegedly made a "sarcastic" remark concerning Mr Ross' legal experience; (f) a similar remark was made by Dixon C in the subsequent Class 1 proceedings (Ross v Lane Cove Council), and this was suggestive of both Dixon C and myself having colluded in respect of the two sets of proceedings before the Court and having reviewed "the detailed transcripts of the other's proceedings"; (g) on 20 March 2013, Ms Melissa Benn appeared on behalf of Ms Edilbi in these Class 4 proceedings. She was told by me that she had no standing to be heard. Mr Ross did not appear. On that day a timetable was set for the final hearing, including the allocation of hearing dates for these part-heard Class 4 proceedings (27, 28 and 29 May 2013). Orders were made for the filing and serving by the parties of their evidence and written submissions. Mr Ross states that he was not made aware of this timetable "until recently". He also states that Ms Benn undertook to attend the directions hearing on his behalf; (h) at the recent hearing on 22 May 2013 of Mr Ross' notice of motion to vacate the hearing dates, I failed to acknowledge any wrongdoing by the council and stated that "it is the respondent's fault we are here". Moreover, I invited Mr Rick O'Gorman-Hughes, Mr Ross' barrister, to withdraw the suggestion of improper conduct by the council when he claimed that they had their "snouts in the trough", which he did. I also made comments to the effect that the further conduct of the hearing concerned ordering demolition and reinstatement (as sought in prayers for relief 4 and 5 of the summons), in apparent disregard of the Court's practice to have any merit assessment determined prior to Class 4 enforcement proceedings. This indicated that I had already prejudiced these proceedings; (i) notwithstanding that I was aware that Mr Ross had not filed any material in the proceedings and had provided no explanation for the delay in making the vacation application on 22 May 2013, he was only given until 10am the following day (23 May 2013) to file documents upon which he sought to rely at the part-heard hearing commencing on 27 May 2013. This timetable was "unrealistic"; and (j) at the end of the proceedings Mr O'Gorman-Hughes is reported to have stated to Mr Ross that "her Honour has already made up her mind on this matter". Actual Bias 8The actual bias alleged is to the following effect: (a) that Mr Michael Mason, a council officer, and Mr Craig Wrightson, the General Manager of the council, have "friends in the Land and Environment Court" and were guaranteed success in their proceedings against Mr Ross "regardless of merit"; (b) that Mr Mason and Mr Wrightson had conducted a campaign of harassment against Mr Ross over a two year period about which he had made several complaints; (c) that Mr Mason had "certain discussions with certain neighbours" regarding myself, the tone of which suggests he had a personal relationship with me. He is said to have made several "unverifiable" comments to suggest that we are known to one another on a personal level. One "verifiable" comment was that Mr Mason is alleged to have had a conversation with a neighbour where he stated "I know Pepper is not a real judge"; and (d) that Mr Ross has had "unpleasant encounters" with Mr Vladimir Kotlyar, a council ranger, on Bayview Street, where Mr Kotlyar purportedly said to Mr Ross that "we are going to get you this time around, we have friends in the Court". And, "my boss is a personal friend of the judge. Our solicitors and experts get paid a lot of money to say what we want them to say. It does not cost us one cent. It is all your money. You're going to lose, this is going to cost you a lot of money". Mr Ross is Cross-Examined 9Mr Ross was cross-examined, during which he stated that the bias of which he complained had been noticeable for some time, including during the vacation application on 22 May 2013. There is No Apprehended Bias 10The test for whether there is apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question that the judge is required to decide (Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]-[7]). 11In Johnson, the High Court observed the following in respect of apprehended bias (at [13], footnotes omitted): 13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. 12The application of the apprehended bias test requires two steps (Ebner at [8]; see also Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [63]; Barakat v Goritsas (No 2) [2012] NSWCA 36 at [9] and Spencer v Bamber [2012] NSWCA 274 at [108]): 8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. 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. 13While Mr Ross has identified the matters that might be said to lead me to decide his case other than on its legal and factual merits, he has not articulated any logical connection between those matters and the feared deviation from the course of deciding his case on the merits. It must be recalled that what is at issue in these part-heard proceedings is not whether Mr Ross has breached the EPAA (he has previously admitted that he has: see Ross (No 4)), but whether the remedy of removal and reinstatement is appropriate in the exercise of my discretion, or whether some other form of remedy should be ordered in respect of the unlawful development on the property. 14Dealing in summary form with the matters that he has identified, it is objectively apparent that there is no apprehended bias because: (a) although I have remonstrated with Mr Ross for being late, being absent, or failing to comply with timetables set by the Court for the conduct of the proceedings on multiple occasions, this amounts to no more than the proper case management of the proceedings, allowing for the fact that Mr Ross is a litigant in person; (b) Mr Ross claims that either he did not consent, or consented but with "no admissions", to the orders that were made on 13 August 2012 and that resulted in his notice of motion being resolved by agreement. The evidence discloses otherwise (see T9.40; 13.15 and 20.18; see also Ross (No 2) at [22], [24] and [27]; Ross (No 4) at [7], [8], [15] and [18] (and his affidavit sworn 12 July 2002, read earlier in the proceedings) and Ross (No 5) at [26]). The consent was clearly unqualified, save as to costs. It was his admission that he had breached the EPAA because he had built the dwelling on the property other than in compliance with the development consent that resulted in the matter being adjourned part-heard, to permit Mr Ross and the council to have the matter dealt with by way of a s 96 modification application. Mr Ross' notice of motion to stay the proceedings was not proceeded with because an adjournment was, in any event, granted. This is reflected throughout the judgment (Ross (No 4)); (c) Mr Ross claims that he was denied procedural fairness at the 13 August 2012 hearing and that I made wrong findings of fact. Even assuming this to be correct, this does not equate to bias, apprehended or actual in the manner he asserts, but gives rise to appealable error. Further, the decision of the Court on that day not to permit him to rely on a voluminous affidavit served very late and in breach of the timetable was due to the unfairness and prejudice that would have resulted to the council had that course been permitted. As for Mr Ross' complaint that he was not permitted to cross-examine or test any of the council's witnesses particularly Mr Adrian Moore (a council officer), no request was made by Mr Ross to do so. Presumably this was because of his admitted breaches of the EPAA and because he had obtained the adjournment that he was seeking by his motion to stay the proceedings; (d) there was no agreement between the Court, the council and Mr Ross that these Class 4 proceedings could not continue unless and until there had been a completed merit assessment of all of the development on the property (either by way of a s 96 modification application or a building certificate application). Even if there had been such an agreement which had been breached, this does not give rise to bias in the proceedings. In any event, there has been a merit assessment of the development, albeit one that did not resolve the matter to Mr Ross' satisfaction (see the decision of Ross v Lane Cove Council and Ross (No 6)); (e) the selective transcript excerpts referred to by Mr Ross fail the objective test for apprehended bias set out above both individually, and collectively; (f) I do not know whether the findings in Ross (No 4) coloured subsequent proceedings or not. The notice of motion dealt with in Ross (No 5) was determined on its merits. Mr Ross has not sought to appeal that decision; (g) there has been no collusion between myself or Dixon C concerning these Class 4 proceedings or the Class 1 proceedings before her. I have no idea what occurred in the latter proceedings other than what is disclosed by her in her judgment and contained in subsequent affidavits filed by Mr Ross; (h) the remark about Mr Ross' legal experience was made in the context of Mr Ross having told the Court that he took the proceedings very seriously and had experience in "the legal process" and that, therefore, his absence from Court on 24 July 2012 was not to be construed as intentional: see T1.15-1.39); (i) as found in Ross (No 6), Mr Ross failed to appear when the matter was set down for hearing on 20 March 2013. Ms Benn did appear, but not, however, on his behalf. The Court is not privy to the communications between Ms Benn and Mr Ross. If a timetable was made on that day that somehow prejudiced him, this was entirely his own fault; (j) I do not objectively consider that anything said or done by me in the hearing on 22 May 2013 gave rise to an apprehension of (or actual) bias (see Ross (No 6)). Mr Ross lost that application, in part, because of his failure to explain the delay in bringing it. On that day, I did not make a timetable for the filing by Mr Ross of his evidence (that timetable was made on 20 March 2013). Rather, I ordered him to inform the council in writing by 12pm of evidence that he would be relying on at the resumed Class 4 proceedings on 27 May 2013, because to date nothing had been served by him on the council in accordance with the timetable previously made by the Court on 20 March 2013; and (k)this application has been bought very late given, as Mr Ross stated in cross-examination, the alleged bias has been present from early on. The fact that this application was not made on 22 May 2013 is, in my view, telling. There is No Actual Bias 15In response to the claim of actual bias, the council relied on an affidavit of Mr Mason sworn 28 May 2013. Mr Mason is the Executive Manager of Environmental Services at the council. 16In his affidavit Mr Mason denied the allegations made against him by Mr Ross. He was cross-examined by Mr Ross. Again he denied the allegations. 17I have no reason to disbelieve Mr Mason's evidence and accept him as a witness of integrity. By contrast, I do not accept Mr Ross' evidence, who I found to be, on the whole, either untruthful, unreliable, or both. 18The actual bias claim can be disposed of on the following bases: (a) Mr Mason denied that he had "friends" in the Court or indeed any relationship with me or other current judges or commissioners of the Court; (b) I have never, until yesterday, laid eyes on Mr Mason. Nor have I had any personal or professional relationship with him, or anyone else at the council; (c) I know of no campaign of harassment by the council against Mr Ross. No objective proof was adduced by Mr Ross in support of this claim and I do not accept it; (d) I do not know what has been said between Mr Ross and Mr Kotlyar. Absent objective proof, again, I do not accept the allegations made by Mr Ross in this regard; and (e)I am not aware of any comment Mr Mason may have made to any neighbour. 19At the conclusion of the application, Mr Ross stated that the matters he relied upon to prove actual bias were additionally relied upon by him to demonstrate apprehended bias. 20Given that I do not accept that any of the events relied upon by Mr Ross in support of his allegation of actual bias in fact occurred, I equally do not accept that any apprehension of bias can be said to arise from these matters when they are viewed objectively. Orders 21Having found no reasonable apprehension of bias and no demonstrated actual bias, the application that I recuse myself is refused. Mr Ross must pay the council's costs of the application. The exhibits are to be returned. ********** 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. Decision last updated: 06 June 2013