Applicant v Respondent

2 It is necessary now to give directions as to whether or not the Tribunal is to be constituted for the rehearing by the same members who made the original order.

3 The applicant seeks an order that the Tribunal be constituted differently from the original Tribunal. It does so on the following grounds:

(a) any rehearing by the same Tribunal, having regard to the Court's findings that the Tribunal decision is, at least in part, defective, will present an opportunity to merely 'patch up' such defective reasoning and therefore deny the applicant a fair hearing;

(b) given the previously expressed views of the Tribunal, any rehearing and decision by the same Tribunal will be tainted and cannot provide the applicant with a reasonable prospect of natural justice;

(c) the nature of the proceeding and, in particular, the robust grounds upon which the appeal relied give rise to apprehended bias in respect of members of the Tribunal; and

(d) any efficiencies or costs savings to be gained by remittal of the matter to the same Tribunal are outweighed by the lack of natural justice which is afforded, or is perceived to be afforded, to the applicant.

4 The respondents, being the Council and the Residents' Association, submit that the proceeding should be remitted to the same Tribunal for reasons principally of efficiency and cost.

Successful applicants in judicial review and appeal proceedings to the trial division of this Court frequently seek remittal to a differently constituted primary decision-maker when the primary decision is set aside and the matter is remitted. If orders are made by this Court as a matter of course requiring decisions to be remade by a differently constituted primary decision-maker, this may have serious resourcing implications for primary decision-makers and add to the costs and delays of the decision-making process. For the Court to be persuaded to order remittal to a differently constituted primary decision-maker, good reason for doing so, based on established principles, must be shown by the party seeking such an order. [1]

6 Justice Kyrou described the guiding principle in situations of this sort as follows:

The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons for decision of the primary decision-maker which would render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same decision-maker or where it would be impracticable for the same primary decision-maker to redetermine the matter. [2]

7 In the present case, the Court held that the Tribunal erred in the way that it approached the question of the need for further landfilling space in metropolitan Melbourne and that it applied the policy of minimising landfills in a manner that caused it to fail to give proper, genuine and realistic consideration to the merits of the proposal. The Tribunal was ultimately persuaded to refuse the permit on the question of need, which it treated as being of such overriding or overwhelming importance that it did not properly consider the merits of the proposal.

8 In view of the nature of the error in the Tribunal's reasoning, remitting the proceeding to the originally constituted Tribunal may give rise to a perception that the Tribunal is being given an opportunity to 'patch up' its previously defective reasoning. The Tribunal has, in my view, expressed a strong view about one of the issues that would stand to be re-considered on the rehearing, namely the question of need. This seems to me to be a situation where a reasonably intelligent lay member of the community who knew something of the functioning of the system could entertain a reasonable suspicion that, in the light of the Tribunal's emphasis on the question of need, it would start off with a predilection of mind that would make acceptance of matters that the applicant might wish to raise as to the merits of the proposal somewhat difficult.[3] By this, I do not mean to criticise the members of the originally constituted Tribunal or to suggest that they would not impartially and diligently undertake the task of rehearing the application. However, in this case (as in many other cases), justice would be better seen to be done if the Tribunal were reconstituted for the purposes of the rehearing.

9 Although I am mindful of submissions that were made by the Council and the residents about the great burden of a lengthy rehearing, this is a case in which the perception of a fair hearing, and the fact that justice must be seen to be done, overrides the practical difficulties that the parties now confront by reason of the remittal to the Tribunal. A perception that a decision-maker might start off with an unfavourable predisposition towards the proposal is contrary to the interests of justice. Perception of a fair hearing must ultimately be the most important consideration.

10 Whether the Tribunal differently constituted chooses to rehear all of the evidence or rely on transcript in part will be a matter for the Tribunal. I would hope, however, that the parties can agree on some practical measures that would shorten the length of the hearing and relieve the burden on the parties and the Tribunal.

11 The proceeding will be remitted to a differently constituted Tribunal for rehearing and redetermination according to law.

[1] [2008] VSC 363 [33].

[3] Bashar v Comcare Australia [2002] FCA 837; (2002) 69 ALD 784 (Madgwick J).