Blue Sky Capital Ventures Pty Ltd v Council of the City of Lake Macquarie

Environmental Planning and Assessment Act 1979 s 79C Evidence Act 1995 s 189 LEGISLATION CITED: Land and Environment Court Act 1979 s 56A Land and Environment Court Rules 1996 Pt 1 r 5A Uniform Civil Procedure Rules 2005 sch 7

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Annetts v McCann (1990) 170 CLR 596; Attorney General of the State of New South Wales v Quin (1990) 170 CLR 1; Australian Postal Corporation v Hayes (1989) 87 ALR 283; Blue Sky Capital Ventures Pty Limited v Council of the City of Lake Macquarie [2007] NSWLEC 507; Brown v Commissioner of Taxation (2001) 119 FCR 269; Burwood Municipal Council v Harvey (1995) 86 LGERA 389; Bushell v Secretary of State for the Environment [1981] AC 75; Campbelltown City Council v Toth (2004) LGERA 336; Carstens v Pittwater Council (1999) 111 LGERA 1; Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 81 ALJR 352; CASES CITED: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15; Hill v Green (1999) 48 NSWLR 161 ; Kioa v West (1985) 159 CLR 550; Kira Holdings Pty Ltd v Liverpool City Council (2004) 132 LGERA 97; Lovell v Lovell (1950) 81 CLR 513; House v The King (1936) 55 CLR 499; Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274; R v Australian Broadcasting Tribunal (1980) 144 CLR 13; Ramsay v Australian Postal Commission (2005) 147 FCR 39; Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1; Segal v Waverley Council (2005) 64 NSWLR 177

DATES OF HEARING: 16 November 2007 23 November 2007

APPLICANT Mr J Robson SC SOLICITOR LEGAL REPRESENTATIVES: Herbert Geer & Rundle RESPONDENT Mr TF Robertson SC SOLICITOR Lake Macquarie City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10261 if 2007 Blue Sky Capital Ventures Pty Limited v Council of the City of Lake Macquarie

JUDGMENT 1 Her Honour: This is an appeal by the Respondent Council under s 56A of the Land and Environment Court Act 1979 (the Court Act) seeking an order that the decision of Commissioner Watts in Blue Sky Capital Ventures Pty Limited v Council of the City of Lake Macquarie [2007] NSWLEC 507 be set aside. Commissioner Watts granted development consent to DA No 2676/2006 for the demolition of existing structures and construction of a supermarket, shops and medical centre with car parking, landscaping and roadworks at the intersection of Freemans Drive and Alton Road, Cooranbong. Such an appeal must be made in relation to alleged errors of law by the Commissioner.

2 The issue of traffic impacts from the proposed development was raised in this Class 1 appeal. A single expert Mr Keating was engaged to report on the traffic issues. He provided a traffic assessment report dated 21 June 2007 and a further report dated 13 July 2007. Further documentary evidence was tendered: (a) Thompson Stanbury Associates traffic impact statement dated December 2006 forming part of the Statement of Environmental Effects (SEE) (exhibit J), and (b) Traffic report prepared by GHD dated June 2007 on behalf of the Johnson Property Group on the "North Cooranbong Development" (exhibit 3 folio F) (the GHD Report).

3 As part of the traffic issues raised in the hearing a letter from the Hunter Regional Development Committee (HRDC) was included with the Amended Statement of Contentions. It listed 15 issues of concern about the possible impacts of the proposed development. Item 1 was "The traffic analysis should be revised to include 10 year growth projections, the proposed North Cooranbong development and the revised access arrangements proposed by the Committee below." Item 2 was "The Committee raised concerns with the proposed access and intersection arrangements on Freemans Drive and does not support the staggered intersection arrangement with back to back right turn lanes…" 4 In his judgment the Commissioner considered traffic issues on Freeman's Drive at [32] - [46] and referred to the HRDC's concern that the traffic analysis provided by the Applicant did not adequately consider the ten year growth projections. He noted that Mr Keating had not assessed the growth projections in the area, including the North Cooranbong Living area. He noted that Mr Keating's report in evidence stated that information could be obtained from Thompson Stanbury Associates and he accepted their analysis at [35]. He also referred to the GHD Report for the North Cooranbong development in some detail ([38]-[41]). At [45] he concluded the development should not be refused because, inter alia, the application did not adequately consider the proposed vehicular access and intersection arrangements on Freeman's Drive. Conduct of hearing 5 It is necessary to consider what the Commissioner did during the hearing in relation to traffic issues in order to understand the grounds of appeal raised by the Council. The Council sought leave to cross-examine the single expert on traffic, Mr Keating. In deciding if he should allow cross-examination the Commissioner held a process he called a voir dire to determine if cross-examination by the Council's counsel should be allowed. The grounds of appeal relate largely to the process called a voir dire and the way the Commissioner dealt with the single expert on traffic Mr Keating. 6 The process called a voir dire took place over the second and third days of hearing (the first day of hearing was the view). The process commenced after the Council's counsel made an application on the second hearing day to cross-examine the single expert on some of the matters identified by the letter from the HRDC attached to the statement of issues. The Council applied for leave to cross examine the single expert on several of the issues raised in the HRDC letter namely items 1 (see above), 2 (see above), 3 (intersection arrangements for Alton Road), 5 (impact on land to west), 9 (use of street for loading dock), 10 (pedestrian access to site), 13 (conflict with other roads). The application was opposed by the Applicant because the single expert had completed his evidence and had reported to the Court so that it was submitted there should be no further evidence. Its counsel raised the possibility that there may need to be an application to adduce more evidence depending on what came out in the cross-examination. 7 The Commissioner determined that he should, in the voir dire, ask the single expert Mr Keating whether he had considered the issues in the HRDC letter. Mr Keating said he had at section 3.3 of his report which became exhibit 10. In relation to item 1 his report stated that this issue could be addressed by Thompson Stanbury Associates. That company had provided a report on traffic matters that was part of the SEE lodged with the development application. The voir dire focussed primarily on the issue of the ten year growth projections for traffic at the intersection on Freeman's Drive (item 1). 8 There was also discussion of the role of par 48 of the Practice Note: Class 1 Development Appeals (the Practice Note) in relation to giving leave to cross-examine witnesses. The Council's counsel stated that reliance was placed on this clause as it demonstrates that cross-examination of expert witnesses was an alternative option to seeking leave to call additional expert evidence. 9 The Commissioner expressed concern that Item 1 was dealing with planning matters beyond the confines of the site and, on the HRDC letter, was an issue more readily dealt with at the local planning level. He also expressed concern that it could take a lot of time to consider in the evidence. The Applicant's solicitor suggested the Commissioner could ask the expert what he had done and his level of satisfaction with the issues in the context of a voir dire. The application to cross-examine could then be considered. The Commissioner then asked Mr Keating a number of questions about matters related to item 1 in relation to 10 year growth figures for traffic from a report of Thompson Standbury and whether the traffic measures put forward by the Applicant reflected these. It appeared from Mr Keating's answers to the Commissioner that he had not taken that data directly into account. The Commissioner stated that the voir dire was completed and asked for submissions from both parties on whether cross-examination should be allowed. Following submissions from the Council's counsel he said he thought that there should be evidence from Mr Thompson, the author of the Thompson Stanbury report, about the 15 items from the HRDC committee. Following a suggestion from the Applicant's counsel he then directed Mr Keating and Mr Thompson, author of the Thompson Stanbury report, to meet overnight to consider the 10 year traffic flow data and the impact if any this would have on Mr Keating's evidence. There was discussion about the Council's traffic engineer being available by telephone link up. The Commissioner also stated he might not allow cross examination. 10 On the third day of the hearing the Commissioner stated that he would again conduct a voir dire to hear what Mr Keating had found out overnight in relation to traffic flows along Freeman's Drive at different times into the future. Mr Keating gave oral evidence of some length. The Commissioner then asked if that provided sufficient information for the parties to deal with issues 1 and 2. The Council's counsel said he did not know as he did not have a traffic engineer present. The Council's counsel stated that no telephone link up with the Council's traffic engineer had occurred and he would need to get instructions on what Mr Keating had said. He also asked the Commissioner what the purpose of the voir dire was as he did not understand what it was directed to given that the Commissioner had said the previous day he would not allow cross examination. The Commissioner stated the voir dire was still concerned with whether to allow cross examination. The Commissioner had prepared a note of what Mr Keating said and provided this to the parties. He also stated that he was working out how relevant items 1 and 2 of the HRDC letter were to the issue he had to address in his assessment under s 79C of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The local environmental study (LES) prepared in relation to the North Cooranbong area development referred to in item 1 of the HRDC letter was then tendered by the Applicant. There was further discussion about that. The Commissioner then ruled finally that he would not allow cross-examination of Mr Keating by the Council on any of the items in the HRDC letter. He considered that he had a lot of evidence on the same topic in Mr Keating's reports and other documents. 11 The LES tendered was referred to in submissions and is referred to in the judgment at [37]. When the Applicant's counsel referred to evidence from the voir dire the Commissioner stated that this was not evidence before him. There was a further submission from the Applicant's counsel that did refer directly to the voir dire to the effect that Mr Keating accepted Mr Thompson's earlier study of traffic flow data. This statement is reflected in the judgment at [35]. 12 While there are five grounds of appeal raised by the Council two are based on the ground of denial of procedural fairness (grounds 1, 3). I will consider these first as they are interrelated. Ground 1 - The Commissioner denied procedural fairness to the Council when he refused its barrister leave to cross examine the parties' single expert Mr Keating.

Council's submissions 13 The Council argued that it had a legitimate expectation based on the Court's published Practice Note, commencing 14 May 2007, that leave would be granted to cross-examine. The Council chose not to call another expert on traffic but rather wished to rely on cross examination of the single expert. The unfairness was later compounded when the Commissioner prevented the Council's traffic engineer from participating in a conference he ordered between Mr Keating and the Applicant's expert. No notice was given of the proposed departure from the expectation generated by the Practice Note sufficient to enable the Council to recover its position by calling evidence. Reliance on the Practice Note was clearly identified to the Commissioner at the hearing and several submissions were made to support the application seeking leave to cross-examine, including that this course was being pursued rather than the Council choosing to bring forward additional expert evidence. 14 The obligation to afford procedural fairness attaches to the exercise of public power where rights or expectations are liable to be adversely affected, subject to statutory exclusion or modification: Kioa v West (1985) 159 CLR 550 at 576, 581,632; Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574 - 575; Attorney General of the State of New South Wales v Quin (1990) 170 CLR 1 at 57. 15 The relaxation of formality by s 38 of the Court Act is not a licence to set aside the requirements of procedural fairness; Carstens v Pittwater Council (1999) 111 LGERA 1 at [45] per Lloyd J; Burwood Municipal Council v Harvey (1995) 86 LGERA 389. Otherwise the right to a "court hearing" which s 34A(4), s 34A(5), s 34B(5) and s 36(2) now guarantee, would be illusory. This must be especially so because the proceedings are not inquisitorial but adversarial; Segal v Waverley Council (2005) 64 NSWLR 177 at [95]. 16 The application of this principle in adversarial proceedings (even when they take the form of an administrative inquiry) requires an opportunity to correct or contradict evidence by cross-examination; R v Australian Broadcasting Tribunal (1980) 144 CLR 13 at 34-35 (ABT hearings), Australian Postal Corporation v Hayes (1989) 87 ALR 283 at 288-289 (AAT hearings). In Ramsay v Australian Postal Commission (2005) 147 FCR 39, Spender J said at [27]: … The duty imposed on a decision-maker … is to give each party an opportunity to present their case. While a right to cross-examination is not necessarily to be recognised in every case as an incident of the obligation to accord procedural fairness, the right to challenge by cross-examination a deponent whose evidence is adverse, in important respects, to the case a party wishes to present, is.

17 The Council reviewed the voir dire process in detail as part of its submissions and made various submissions about its effect being to prevent the Council's participation in the determination of the relevance of substantive traffic issues in the proceedings. The Commissioner pursued his own questioning of Mr Keating but excluded the Council from testing the single expert's evidence in cross-examination. The Commissioner used the voir dire process to determine the substantive issues in the hearing and in doing so excluded the Council from the hearing process. Applicant's submissions 18 The Applicant submitted there is no right to cross-examine, rather that is a matter within the Court's discretion. The Respondent appears to be suggesting that procedural fairness required the Commissioner to determine the Respondent's application for leave in its favour. This proposition is fundamentally misconceived. The proposition is contrary to the established practice of the Court requiring leave to cross-examine. Necessarily the discretion may be exercised in favour, or against, a particular application. A court reviewing the exercise of such a procedural discretion on appeal will not disturb the trial court's decision unless there is clearly shown to be an error of legal principle, irrelevant matters were considered, relevant matters were not taken into account or the decision was so unreasonable and unjust as to indicate that one of these errors must have been made. Considerable caution will be exercised in reviewing such a procedural discretionary decision; Lovell v Lovell (1950) 81 CLR 513; House v The King (1936) 55 CLR 499; Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274 at [45]. 19 While it is not necessary for the Court to go further in order to reject ground 1, its rejection is also required on the alternative or additional ground that there is no rule of procedural fairness conferring a right of cross-examination in proceedings of this nature. In the context of planning appeals, the courts have distinguished between the rules of procedural fairness and the procedural rules of evidence and decided that not only is cross-examination not a matter of right in such appeals, but that fair procedure may require leave to cross-examine to be withheld more usually than in other litigation in them: Bushell v Secretary of State for the Environment [1981] AC 75 at 95. It is well established law that the principles of natural justice do not accord a right to cross-examine in a planning tribunal context: Re King; Ex Parte Westfield Corporation (Victoria) Ltd (1981) 64 LGRA 28 at 47- 49. 20 The analysis of events and the course of evidence (summarised par 13-22 of the Applicant's written submissions) shows that there is no substance in the Respondent's allegation of denial of procedural fairness. There was a detailed investigation on the voir dire into what was ultimately demonstrated to be a quite unmeritorious line of cross-examination but one capable of unnecessarily using up much court time contrary to the "overriding purpose" requirements of Pt 1 r 5A of the Land and Environment Court Rules 1996 (the Court Rules) that proceedings be conducted justly, efficiently and cheaply. 21 Even if, contrary to these submissions and as wrongly asserted by the Respondent, the Respondent somehow, despite the well known practice of the Court in Class 1 proceedings, had a "legitimate expectation to cross examine Keating" or a "legitimate expectation leave would be granted", all that the Commissioner was required to do to accord procedural fairness was give a hearing or notice prior to departing from the legitimate expectation: a legitimate expectation does not confer an entitlement that the expectation be carried into effect: Quin at 21-22; Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1 at [65]. Finding on ground 1 22 Section 38 of the Court Act states that: (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. … 23 Part 1 r 5A of the Court Rules states that the overriding purpose of the Rules, which must be given effect to when interpreting them, is to facilitate the just, quick and cheap resolution of the real issues in proceedings. The Practice Note sets out procedural matters relating to Class 1 proceedings. Paragraph 48 deals with the calling of additional expert evidence and states: Leave is to be sought by notice of motion, with an affidavit in support explaining: (a) the name, qualifications and expertise of the expert proposed to be called; (b) the matters proposed to be addressed by the expert; (c) the date on which the expert was first retained and the date or dates of any expert report the expert has already prepared; (d) the reasons for the need to call an additional expert to give that evidence, rather than having the parties' single expert address the matters further or in cross examination; …

24 As identified in the Council's submission at par 14, the obligation to accord procedural fairness in courts and tribunals is significant, as reflected in the breadth of cases referred to by the Council in its submissions, summarised at par 14. The failure to afford procedural fairness is an error of law. It is well settled that the principles of natural justice including the requirement to accord procedural fairness must be observed by commissioners determining Class 1 proceedings, see Carstens at 45. The focus of this ground of appeal is the extent the requirement to accord procedural fairness required the right to cross-examine to be afforded to the Council during the hearing. There are numerous authorities relied on by the parties which deal with the right to cross-examine in the context of procedural fairness. A review of these authorities makes clear that the particular statutory framework and circumstances determine what procedural fairness is required. 25 The authorities relied on by the Applicant to suggest the scope of procedural fairness in relation to cross-examination in these Class 1 proceedings was criticised by the Council because those cases dealt with proceedings of a different type. Bushell concerned a planning inquiry relating to two motorway schemes under the UK legislation the outcome of which was a recommendation to the relevant Minister. The inspector in charge refused leave to cross-examine a witness to the relevant Department who gave evidence regarding the accuracy of traffic predictions. The House of Lords held (Lord Edmund-Davies dissenting) there was no denial of natural justice in so doing. The inquiry was unlike court proceedings, being more inquisitorial in nature and resulting in recommendations being made which had no legally binding effect. Re King concerned whether cross examination should have been allowed before a planning panel appointed under Victorian legislation to inquire into objections to a draft planning instrument. The panel reported to the relevant planning authority with its findings and recommendations. Southwell J in the Supreme Court of Victoria held there was no requirement under the rules of natural justice to allow cross-examination of a witness whose evidence may be against the party. Neither decision concerned court proceedings so that the approach is not directly relevant to these Class 1 proceedings. 26 The Council sought to emphasise the adversarial nature of Class 1 proceedings, as confirmed by the Court of Appeal in Segal, to submit, I infer, that there is an entitlement to cross-examine. In this case that was said to arise particularly because of par 48(d) of the Practice Note. To that end, the Council relied on Hill v Green (1999) 48 NSWLR 161 at 148 to emphasise the importance of the right to cross-examination. That case concerned an inquiry procedure into the alleged misconduct of a teacher under the relevant regulation dealing with disciplining of teachers. The statements of Fitzgerald JA that a respondent was entitled to confront and cross-examine his accuser are obiter. Reliance is also placed on Spender J in Ramsay as set out at 16 which emphasises the requirement to challenge evidence adverse to the case a party wishes to present. The statutory framework and subject matter in both cases is markedly different to Class 1 appeals in this Court. I am here dealing with whether there should be cross-examination of a single expert witness in a planning appeal, albeit in a court hearing, where that expert owes a duty to carry out his duties in accordance with the Expert Witness Code of Conduct. 27 GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 contains a helpful review by Young J of relevant authorities on the question of the right of more than one counsel to cross-examine a witness. He concluded at 22 that there is only a "right" to a fair trial and the trial judge has discretion about the cross examination of witnesses. His comments are directed to the circumstances where there are multiple parties seeking to cross-examine rather than just one. 28 A review of these authorities does not support the Council's submission that there is a right to cross-examination arising in Class 1 proceedings solely on the basis that par 48 of the Practice Note suggests that this approach is open as an alternative to calling an additional expert witness. Reliance on Segal because that case confirmed the adversarial nature of Class 1 proceedings does not suggest a greater entitlement to cross-examination than existed up to the institution of the Practice Note. The Practice Note provides procedural guidance to the parties on how an appeal should proceed, it does not found a substantive right. 29 Further, leave is required to be sought from the Court in order to cross-examine any witness in Class 1 proceedings under the Court Rules, Pt 13 r 24 which provides: At the hearing, except with leave of the Court, the following requirements shall apply: . . . (d) no oral expert testimony (including cross-examination) of any expert shall be allowed. If the Council's submissions were correct, advising the Court that reliance was placed on par 48 of the Practice Note would mean that an application to cross-examine would have to be granted and the Court would have no discretion to refuse it. As identified by the Applicant's submissions at par 21, if there was a legitimate expectation that there would be cross-examination of the single expert based on par 48 that expectation does not confer an entitlement that the application must be granted. 30 As stated above, whether the requirements of procedural fairness demand that cross-examination should have been allowed depend on the circumstances and the statutory framework. The various cases identified by the parties and set out at par 25-27 demonstrate the wide variety of circumstances in which these have been considered. The particular circumstances of this case must be considered in light of the Court Act, Rules and procedures. In Campbelltown City Council v Toth (2004) LGERA 336 McClellan J held it was the obligation of the court to use court resources to ensure prompt and efficient disposition of matters. An overriding obligation is that parties must be provided with a fair hearing. That includes an opportunity to put before the court evidence or submissions dealing with an issue that could be determined adversely to a party. The judgment referred briefly to the decision of a commissioner not to allow cross-examination at [32] and confirmed that decision in the circumstances of that case. Most of the judgment concerned another issue, the refusal by a commissioner of an application for an adjournment in order to allow further evidence to be called challenging another expert's evidence. The expert evidence which the party sought to challenge unsuccessfully was relied on by the commissioner in his ultimate decision to refuse a particular development application. McClellan J held that there had been a denial of procedural fairness by the commissioner in that circumstance. 31 It is necessary to consider the particular circumstances of this case to determine if the refusal to allow cross-examination did result in procedural unfairness to the Council. While stating that he was holding the process he called a voir dire, as identified in par 6 -10 above, to determine whether he should allow cross-examination, what the Commissioner did was engage in a process to determine whether item 1, and item 2 to a lesser extent, in the HRDC letter were relevant to the issues before him in the case. There is no reference in the voir dire process to the other items in the HRDC letter in relation to which the Council was also seeking leave to cross-examine Mr Keating. The HRDC letter was in evidence as part of the issues the Council intended to raise at the hearing. 32 The process undertaken during the hearing included questioning of Mr Keating solely by the Commissioner, requiring him to meet with Mr Thompson overnight and Mr Keating giving further evidence about that meeting the following day at some length. The precise status of that conference is unclear in that Mr Thompson was not an expert witness formally briefed in the proceedings in accordance with the Court Rules. The Commissioner provided a written draft he prepared of what Mr Keating said to the parties. He asked them if that was sufficient evidence to consider Items 1 and 2 in the HRDC letter. He then ultimately refused leave for the Council to cross-examine because he considered he did not need to take into account the evidence from the voir dire process as he had sufficient material on these issues before him. The Commissioner stated that he did not intend to rely on the evidence from the voir dire process and concluded therefore that he would not allow cross-examination on Item 1 in the HRDC letter, and by inference any of the other matters raised in that letter which the Council sought to cross-examine about. 33 In these circumstances an issue of procedural unfairness does arise from the inability of the Council to participate in any part of the voir dire process undertaken by the Commissioner as it was not able to ask Mr Keating any questions during the voir dire process or in cross-examination. While the Commissioner was satisfying himself of what he considered to be the relevance of the evidence, the Council was denied any opportunity to raise questions about any of the items raised in the HRDC letter and also as to the relevance of these matters for the Commissioner's determination. This particularly applied to item 1 which occupied most time in the voir dire process and to item 2 to a lesser extent. As no reference was made in the voir dire process by the Commissioner to any of the other items in the HRDC letter for which leave to cross-examine was sought by the Council, their relevance is simply undetermined. I agree with the Council's argument that this was effectively the Commissioner clarifying, without the assistance of the parties, important traffic issues in the Council's case in the proceedings. 34 The consideration of the Commissioner's judgment to determine if the evidence from the voir dire was part of his reasoning is not an answer to this procedural unfairness. The Applicant submitted, and it appears generally the case, that all of the traffic section of the judgment referred to evidence which was before the Commissioner apart from the voir dire. One line in par 35 states that "Mr Keating had accepted the accuracy of the traffic analysis carried out by the applicant's traffic engineers Thompson Stanbury Associates". The Council argued this could only be based on the voir dire process. It does appear that this sentence in par 35 must have been informed by the voir dire because Mr Keating's evidence in it initially was that he did not take into account the data from Mr Thompson but simply referred to it in his report which was tendered in evidence. Following the overnight meeting with Mr Thompson and Mr Keating, Mr Keating expressed satisfaction with the data to the Commissioner. To the extent that there is reference in the judgment to matters arising during the voir dire process, despite the Commissioner saying he would not have regard to that, further suggests that there was procedural unfairness to the Council in the conduct of the hearing. 35 While it is within the responsibility of the Commissioner to ensure the orderly and efficient dispatch of a matter it is necessary that parties be afforded procedural fairness in doing so. The Commissioner embarked on a lengthy process of his own to determine if matters the Council sought to raise in cross-examination were relevant to the hearing. In doing so I consider he should have allowed the Council to pursue its case on the traffic issues which were clearly in issue. It was provided with no opportunity to do so in the way this part of the hearing was conducted. It was effectively excluded from the process undertaken by the Commissioner to determine the relevance of evidence on which he then based his decision whether to allow cross-examination. It is not an answer to this lack of procedural fairness to rely on his conclusion that he did not intend to rely on the evidence from the voir dire as he did not consider it relevant. The Council was not provided with an opportunity through cross-examination to test evidence in order to present its case on the issues it considered were relevant. This ground of appeal is upheld as there was a failure to accord procedural fairness in this case by not allowing cross-examination by the Council, giving rise to an error of law.

Ground 3 The Commissioner erred in law by denying the Applicant procedural fairness when he ordered Mr Keating during the course of evidence to confer with the Applicant's traffic engineer and produce a report to the Court without the Council's traffic engineer

Council's submissions 36 The Council argued that it was denied procedural fairness because its officer was precluded by direction from meeting with Mr Keating when the Applicant's traffic consultant was directed to be present, in circumstances where the Court intended to give evidentiary weight to any conclusions (or at least to any satisfaction expressed by Mr Keating) as a result of the meeting: Kira Holdings Pty Ltd v Liverpool City Council (2004) 132 LGERA 97 at [8] - [22]. The Council was not given any opportunity to question or ventilate or comment on matters discussed nor to cross-examine on the conclusions reached by Mr Keating. This was another denial of procedural fairness, which reinforced the unfairness of that identified in ground 1. The Council was completely disabled from participation in the evidentiary process once its expectation that Mr Keating's evidence could be tested in cross-examination had been defeated. Further despite there being agreement by the Council's counsel during the hearing that the Council's traffic engineer could participate by way of telephone link with the other experts this did not occur. Inability to participate in an express or implicit reliance by the Commissioner upon the result of the conference clearly vitiated the decision.

Applicant's submissions 37 The Applicant argued that it is a matter for the exercise of the Court's discretion as to which other experts should be involved in any conferencing directed to occur during the hearing. It may be that in a particular case only issues arising between two or more particular experts require additional joint conferencing during the hearing. That was the decision reached by the Commissioner in the exercise of his discretion here, and there was no error of principle involved in that decision and it is a procedural decision that the Court would only reluctantly disturb on appeal; Micallef at [45]. 38 Given the application of Sch 7 of the Uniform Civil Procedure Rules 2005 (UCPR) under the Court's Practice Note [50], and the fact that the Respondent was not calling its own expert traffic evidence, there could have been no reasonable or legitimate expectation on the part of the Respondent that its expert would be invited to participate in any joint conference between the parties' single expert and the Applicant's expert on the matter. There is accordingly no basis to assert any denial of procedural fairness in relation to what occurred. Finding on ground 3 39 This ground also relates to the voir dire process considered in relation to ground 1 and is another argument that the process was unfair because of the meeting between Mr Keating and Mr Thompson without a Council traffic engineer also being present at least by telephone link up. I have already referred to this process above in my finding and found that it excluded the Council so that it was not able to explore in its evidence, and therefore in the presentation of its case, the significance of the traffic issues raised in the HRDC letter. That is reinforced by the exclusion by implication of the Council's traffic engineer from any meeting of the other witnesses. This occurred despite the Council's counsel specifically raising that the Council's traffic engineer could be available by telephone link up. I consider this ground is really an extension of ground 1 and the same finding that there was a breach of procedural fairness also applies to this ground. 40 While it is certainly the case that Sch 7 cl 4 of the UCPR provides that an expert witness must abide by the direction of the Court to confer with another expert witness that is not an answer to the findings on procedural fairness in this case. 41 The Applicant relied on Micallef at [45] as holding that an appeal against the exercise of discretion by a judicial officer can only be overturned in limited circumstances, where there is demonstrated an error of legal principle (such as breach of procedural fairness) or a material error of fact, taking into account an irrelevant consideration, failing to take into account a relevant consideration or arriving at an unreasonable decision. While the Commissioner is not a judicial officer, a similar approach to the exercise of his discretion in the conduct of the hearing can be adopted. This appeal is made on the basis of a breach of procedural fairness and I have found that has occurred. 42 While the Commissioner was entitled to determine whether evidence was relevant before determining if cross-examination should be allowed the process of determining relevance must be conducted fairly. Whether the exercise of discretion to direct the proceedings has miscarried must always be considered in the particular circumstances of a case. A detailed examination of what occurred during the hearing (see par 6-10 above) and discussed in my finding on ground 1 at par 31-33 does suggest that the procedural unfairness identified in this ground together with ground 1 is made out. I therefore consider this ground of appeal should be upheld. Ground 5 - The Commissioner erred in law by denying procedural fairness to the Respondent because his conduct of the hearing and his decision gave rise to a reasonable apprehension of bias

Council's submissions 43 A fair-minded lay observer might reasonably apprehend that the Commissioner could not bring an impartial mind to bear on the traffic issue after its contamination by the evidence given on the voir dire, the reception of the results of the secret meeting between the experts from which the Council's expert had been excluded, the refusal to permit the Council to test the evidence and finally the preclusive determination by the Commissioner, based on his own examination of Mr Keating, of the rationality, accuracy and completeness of his evidence before the Council had an opportunity to present its case: Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 81 ALJR 352 at [110] - [112]. 44 Such observer would consider that Council had been excluded - not once but thrice - from presenting its case, an impression reinforced by the judgment, which takes account of the voir dire evidence after the Commissioner denied that he would do so.

Applicant's submissions 45 The Applicant argued that a fair reading of the transcript as a whole would not give rise to any finding of unfairness. While the Commissioner did not allow cross-examination of Mr Keating he ruled that the evidence on the voir dire was inadmissible in the substantive proceedings. There is no evidence of prejudgment or the absence of an impartial or unprejudiced mind. The Council always had the opportunity to present its submissions on whether leave should be granted. Finding 46 In Concrete Pty Ltd Kirby and Crennan JJ referred to the well established principles in relation to apprehended bias of judicial officer in the joint judgment in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8]. Paragraph [6] stated as follows: [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. [footnotes omitted]

47 Applying those principles to the circumstances here does not give rise to a finding of apprehension of bias here in my view. Bias by reason of prejudgment must be "firmly established", Re JRL: ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. I agree with the Applicant's submissions that on a consideration of the conduct of the whole proceedings an apprehension of bias does not arise. I consider that the Commissioner was endeavouring to conduct the hearing efficiently in adopting the process he did. While in doing so I have held that procedural fairness was not afforded to the Council that alone does not satisfy the test of apprehension of bias propounded in Ebner.

Ground 4 - The Commissioner erred in law by conducting a voir dire not for the purpose of determining whether a witness's evidence should or could be admitted but to determine whether the Respondent should be given leave to cross-examine the witness 48 The Council argued that a voir dire is the procedure adopted to determine whether a particular fact or circumstance exists whose existence or non-existence is necessary for the admissibility of evidence or to determine the competency of a witness: Brown v Commissioner of Taxation (2001) 119 FCR 269 at 291 [91]; s 189, Evidence Act 1995. It is not a procedure for determining whether admissible evidence can be tested. The voir dire was used for an inadmissible purpose. The evidence of Mr Keating had already been admitted. It cannot be used to determine whether a party should be afforded or deprived of a procedural right.

49 The Applicant argued there was no basis for this ground. The Commissioner conducted an inquiry in the course of deciding the Council's application to cross-examine an expert. Finding 50 While the Commissioner referred to the process he undertook as a voir dire whether he intended to use that term as referred to in s 189 of the Evidence Act is unclear. In any event, as the rules of evidence do not apply in Class 1 proceedings such a process is not appropriate or available in any event. The Council's appeal ground is directed to the failure to apply procedural rules concerning a voir dire process which is most commonly used in criminal and quasi-criminal proceedings. Such rules have no application in Class 1 proceedings. I see no necessity to consider the parties' respective arguments on what is the nature and scope of a properly conducted voir dire process as I do not consider these submissions are relevant to what the Commissioner did in the hearing. 51 As set out at par 6-10 above, the Commissioner undertook a process of inquiry to establish the relevance of certain evidence to the issues before him. Based on his view of lack of relevance he decided not to allow the cross-examination of the single expert on traffic by the Council. That is a process of inquiry he adopted, regardless of whether it is labelled a voir dire, as part of his attempt to ensure the efficient dispatch of proceedings. While I do not consider the labelling of the inquiry process as a voir dire by the Commissioner to be accurate, I do not consider that any error of law is raised by this ground. Accordingly it is not a matter I can consider in this appeal. This ground of appeal fails. Ground 2 -The Commissioner erred in law by taking into account evidence from Mr Keating on voir dire after ruling that it would not be taken into account in determining the appeal and would not become evidence in the proceedings 52 This ground was not strongly pressed by the Council and does not disclose a separate error of law in my view. As identified in the response to ground 4 the fact that the Commissioner undertook a process he called a voir dire does not mean that the specific legal meaning of that term under s 189 of the Evidence Act applied. Nor could it apply given that the rules of evidence do not apply in Class 1 proceedings. To the extent this ground is alleging procedural unfairness in the conduct of the proceedings, that has been considered already in relation to grounds 1 and 3. No further issue arises in relation to this ground. Remitter 53 The Council's appeal should be upheld. The Council has argued that the matter should be remitted to a Commissioner other than Commissioner Watts (an exclusionary remitter order) relying on Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 163 at [70]-[86] per Tobias JA, Bell J agreeing. I am able to make such an exclusionary remitter order whereby the matter is remitted to a commissioner other than Commissioner Watts (see Castle Constructions at [70] as applied by me in Neate v Shellharbour City Council (No 2) [2007] NSWLEC 541 at 2.) 54 The making of an exclusionary remitter order requires in this case that there is an apprehension of prejudgment arising from the first instance decision. I have held there was a breach of procedural fairness in the conduct of the hearing by the Commissioner. I did not find in relation to ground 5 in this appeal that there was an apprehension of bias as a result of the Commissioner's conduct of the proceedings. The making of an exclusionary order is not necessary in these circumstances and the matter can be remitted to any commissioner, including Commissioner Watts, to reconsider the traffic issues. Costs 55 The usual costs order in such matters is that costs follow the event so that the Applicant should pay the Council's costs. Unless a Notice of Motion is filed within seven (7) days seeking a different costs order I will make an order that the Council's costs are to be paid by the Applicant.

Orders 56 The Court makes the following orders:

1. The appeal is upheld.
2. The decision of Commissioner Watts that development application 2676/2006 to demolish existing structures and to construct a supermarket, shops and a medical centre with car parking, landscaping and road works on Lots 102 and 103 DP 878303, Lot 1 DP 105127, Lots 31 and 32 DP 732164, Freemans Drive and Alton Road, Cooranbong, is set aside.
3. The matter is remitted for hearing before a commissioner in accordance with my judgment dated 10 December 2007.
4. Costs are reserved.

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