Berk v Woollahra Municipal Council

This is an application for the disqualification of Assessor Bly and Assessor Murrell ("the assessors") from further hearing Class 1 proceedings. The proceedings arise out of the refusal by Botany Bay City Council ("the Council") to grant approval to a development application lodged by Bonfoal Pty Limited ("the Applicant") in respect of a proposed concrete batching plant at premises located in Coward Street, Mascot ("the site"). The application for disqualification arises out of alleged perceived bias or alternatively denial of procedural fairness.

The hearing commenced before the assessors in this Court on 6 November 1998. On that day it was proposed that a view be held at 11.00 am upon the site on 9 November 1998.

The assessors arrived by taxi at the site at 11.00 am as arranged. Mr Wilson, counsel for the Applicant was present and the solicitor representing the Council, Mr O'Connor arrived shortly thereafter. A View took place at the site and of adjoining premises known as Caterair. In addition, a View was held of the surrounding area and two cars were used. One car contained Assessor Murrell and two representatives of the Applicant, the other car contained Assessor Bly, Mr O'Connor, Mr Wilson and a driver employed by the Applicant. No objection was raised by any party to such arrangement.

Following the conclusion of the View it was necessary for the parties to return to the city to resume the hearing. Accordingly the vehicles returned to the site. Mr O'Connor alighted from the car in which he had been travelling and returned to his car which had been parked at the site. Simultaneously, in consequence of rearrangements, the assessors left the site in one vehicle accompanied by Mr Wilson and a driver employed by the Applicant. There was no discussion held between Mr Wilson and Mr O'Connor concerning these arrangements and Mr O'Connor observed that the assessors were travelling with Mr Wilson only as the car carrying the assessors left the scene and whilst Mr O'Connor was entering his own car.

On the return route to the city the car carrying the two assessors, Mr Wilson and the driver passed by Mandible Street, Alexandria. Such street was significant, because located in it was another concrete batching plant operated by Concrite Pty Limited ("Concrite"). The Council, as part of its case, had obtained, and served upon the Applicant a statement of evidence of the manager of such plant, namely Mr Malcolm. A subpoena had also been issued by the Applicant to Concrite requiring it to produce records concerning its operations.

At the suggestion of Mr Wilson the car which had been travelling in a northerly direction in Botany Road towards the city made a left hand turn at the next street known as Retreat Road and then a further left hand turn into Wyndham Street until it came to the intersection of that street and Mandible Street where the car made a right hand turn. Effectively the car had driven around the block. It then proceeded in a southerly direction along Mandible Street to the Concrite plant site. The car stopped outside Concrite site.

Whilst the car was stopped at the Concrite site observations were made by the persons in the car including the assessors. Assessor Bly made specific reference to a cover forming an enclosure of a conveyor belt comprising part of the conveyor system at that plant. It is also apparent that an observation was made by Mr Wilson of a cement tanker which was present at the site and particularly of an engine which was located at the rear of the tanker which apparently drove a pump for the purpose of operations of transferring cement to the plant. It is not clear whether the plant was actually in operation. Cement trucks were observed travelling in Mandible Street to the plant. At the scene Assessor Bly requested Mr Wilson to tell Mr O'Connor of the further View. Thereafter the car turned around and resumed its journey via Mandible Street and Botany Road to the city.

At the resumption of the hearing at 2.00 pm on 9 November 1998 Mr Wilson informed Mr O'Connor of the further View. The hearing progressed throughout the afternoon of that day. Certain photographs were tendered and Mr Wilson indicated that the Court had viewed a bulk cement truck at Mandible Street similar to that depicted in the photograph before the Court and attention was drawn to the engine at the rear of the truck. The photograph depicted an engine with a triangular structural section similar to the engine on the truck that had been observed at the Mandible Street View.

At the commencement of the hearing of the matter on the ensuing day namely 10 November 1998 Mr O'Connor made an application that the assessors disqualify themselves. After hearing argument the assessors determined that the matter should be referred to a judge of this Court for determination of a question of law.

I should point out that no affidavits have been filed in view of the urgency of the proceedings and the recitation of the above facts have been stated from the bar table by both Mr Wilson and by Mr O'Connor. It is agreed between them that the recitation are to be treated as agreed facts.

Council contends that there is possible prejudice to it in view of the fact that the view of the Concrite site was held without the benefit of representation by it. Section 54 of the Evidence Act, 1995 (NSW) relevantly provides:- "54. The court ... may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection." Council maintains that a further View cannot rectify various impressions that may have already been made by the assessors. The Concrite site was one which was the subject of evidence contained in the statement of Mr Malcolm and which had the potential of becoming a matter of relevance in the determination. Mr O'Connor was not aware of the fact that the View of the site would be held. The Council relies upon the observations of Cripps J in Berk v Woollahra Municipal Council (1992) 76 LGRA 138 in support of the proposition that the rules of natural justice or procedural fairness apply to proceedings before an assessor who must not be biased and must give the appearance of impartiality. Mr O'Connor submitted that there was the perception of actual bias in view of the fact that, when asked to express a decision on the application for disqualification, the assessors were apparently unable to form a judgment but referred the matter.

For the Applicant, it was submitted that there has been no procedural unfairness. The hearing has not concluded and there was ample opportunity for the assessors to have, if necessary, a second View. Any alleged defect could be rectified by the assessors during the remainder of the hearing. As a further ground the Applicant relies upon the observations of Her Honour the Chief Judge in Cacalot Pty Limited v Sydney City Council (1996) 90 LGERA 424 where Her Honour, having found procedural unfairness, determined that the error the subject of the proceedings in that case was not such as would vitiate a decision. It was submitted that no submission had been made that the assessors would not be impartial.

In substance, the above summarises the submissions of each of the parties.

It is fundamental to the administration of justice, the rules of natural justice or procedural fairness be adhered to at all stages of a judicial proceeding. Such rules apply not only to judges, but to persons who, although not judges, are appointed to determine issues between litigants. Any departure, however slight, from such principle has the potential to lead to an erosion of confidence in the administration of justice.

The essence of the complaint in this appeal lies in the fact that a View has been held of premises without prior arrangement or consent of one of the parties, and in their absence. During the View the assessors visually observed certain matters, and observations were made to and by them to the legal representative of the only party that was represented. The question is whether, against established principles, such conduct leads to the conclusion that there has been a denial of natural justice or breach of the doctrine of procedural fairness.

In The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248, the High Court of Australia succinctly stated the principle in a joint judgment of the court at p 264 as follows:- "The question is whether it has been established that it might reasonably be suspected by fair-minded persons that the learned judge might not resolve the questions before him with a fair and unprejudiced mind." Such test has been expanded by the High Court of Australia in Livesey v The New South Wales Bar Association (1983) 151 CLR 288. The joint judgment states (at p 299):- "What is in issue in the present case is the appearance and not the actuality of bias by reason of prejudgment. The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality." The above principles have been followed repeatedly: see Vakauta v Kelly (1989) 167 CLR 568; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Webb v The Queen (1993-1994) 181 CLR 41; Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684.

In Webb v The Queen (supra) at p 47, Mason CJ and McHugh J quoted with approval the judgment of Lord Hewart in R. v Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259 where His Lordship said that it was of:- "fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

The above principles were followed by the High Court of Australia in Re JRL; Ex parte CJL (1986) 161 CLR 342. In that case a representation to a judge in chambers without the parties being present was held to breach the rules of natural justice. In the course of the judgment the Gibbs CJ determined that justice would not be seen to be done if the judge proceeded to hear the case, and a writ of prohibition issued. This decision and the authorities relied upon therein are directly applicable to the present facts.

It is fundamental that, in contested legal proceedings both parties should be represented, or appear, and be heard before the decision maker at all times. Whilst litigation between parties is in progress, it offends the basic principles that the decision maker should place himself or herself in the position where he or she is in the company of only one of the parties or the representatives. To do so creates an occasion where suspicion may be entertained by the other party that something may have transpired, or that some impression may have been given favourable to that party and against interests of the party who was not present. Put another way, an opportunity occurs from which a reasonable apprehension or suspicion could arise that the decision maker could be compromised.

Accordingly, it offended the principle of natural justice that the assessors, in the course of their View of the areas surrounding Coward Street site did not travel together, but travelled separately and in neither case were they accompanied by representatives of each of the parties.

The present application however concerns the View at the Mandible Street site. In this respect, when Mr O'Connor observed the two assessors driving away from the Coward Street site in the company of counsel for the opposing party, it may have been reasonable for him to assume that the vehicle would have been driven directly back to the city. However this was not the case. There was a deviation. The deviation was deliberately undertaken. The deviation was made for the sole purpose of conducting an inspection of a site which was potentially the subject of contested evidence in the course of the hearing then in progress. Such deviation and View where only one party was present could, in the mind of an objective observer give rise to suspicion that one party had achieved an advantage and as such offends the basic principles of natural justice. The fact that this event occurred, together with the fact that observations were made by counsel for the only party present was inappropriate. The fact that the assessors made observations as well serves to reinforce the conclusion that an occasion has clearly arisen whereby justice is not being seen to be done. This is sufficient to warrant the removal of the assessors.

If there be any doubt that the above circumstances were not sufficient to satisfy the requisite tests, there are other circumstances which certainly do so. When the hearing resumed later on the same day, counsel for the Applicant who was present at the Mandible Street View indicated certain similarities between what was observed at that site and photographs which were being tendered. Accordingly the Applicant had clearly been placed in a position of advantage over the Council. Not being present, and not being represented at that View, the Council was disadvantaged and moreover was entitled to be concerned to know whether the assessors had gained additional information which was not referred to. The Council was simply in a position of not knowing, whereas the other party knew the full extent of the events of the View. Further, Council did not know the extent of inferences which the assessors might have drawn from their View, as they were entitled to by virtue of Section 54 of the Evidence Act, 1995.

A further ground giving rise to justification of the Council's complaint relates to the application made by it to the assessors to disqualify themselves. Having heard argument, the assessors declined to make a finding whether there was any bias or any denial of natural justice, apparently regarding the matter as a question of law to be determined by a judge.

I reject the submission that any procedural defect can be cured during the course of the hearing and that, unlike the circumstances in Berk v Woollahra Municipal Council (supra), the defect complained of can be remedied because the hearing has not concluded. A defect of this kind can not but lead to the conclusion that there has been procedural unfairness which is incapable of rectification. The circumstances are clearly different to those which prevailed in Cacalot Pty Limited v Sydney City Council (supra). It was not appropriate for the assessors to have been taken on a View of premises when no arrangements had been made for that purpose. Such conduct destroys the confidence which the Council may have in the further continuation of the proceedings.

It does not matter that the application was made on the 10 November 1998, rather than 9 November 1998. On the resumed hearing on 9 November 1998 it became clear, during the course of the hearing, that information had been gleaned by the assessors at the View, which was not known by the other party. In these circumstances, it could not be said that the application of the Council should have been made immediately following the View.

The Council is justified in their application and the Court finds that holding a View in the absence of a party provides the necessary foundation that there has been a departure from the rules of procedural fairness. Such departure could give rise to a reasonable apprehension of bias.

(1) Assessor Bly and Assessor Murrell be disqualified from further hearing proceedings No 10417 of 1998. (2) Liberty be granted to the parties to approach the Registrar forthwith to obtain fresh hearing dates. (3) The question of costs is reserved, including any application which might be made pursuant to the provisions of Section 6(1AA) of the Suitor's Fund Act, 1951.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 8 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM

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