City of Canada Bay Council v Bonaccorso Pty Ltd

City of Canada Bay Council F&D Bonaccorso Pty Ltd PARTIES: Arinson Pty Ltd Omaya Holdings Pty Ltd Omaya Investments Pty Ltd The Registrar-General

A: J Griffiths SC / S J Free COUNSEL: 1R: B Coles QC / J Doyle 3&4R: J A Ayling SC / M Sahade 5R: P Walsh

A: Maddocks Lawyers, Sydney SOLICITORS: 1R: Thomson Playford, Sydney 3&4R: DLA Phillips Fox, Sydney 5R: Department of Lands, Sydney

LOWER COURT JURISDICTION: Land & Environment Court

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40263/07

MASON P TOBIAS JA YOUNG CJ in EQ

Friday 14 December 2007 CITY OF CANADA BAY COUNCIL v F&D BONACCORSO PTY LTD & ORS Judgment on Application to Recuse for Apprehended Bias 1 TOBIAS JA: Prior to the commencement of the hearing of the appeal in this matter on 26 September 2007, I sat alone to determine an application by the first respondent that I should recuse myself from sitting on that appeal. At the conclusion of argument I determined that I would not recuse myself, indicating that I would provide my reasons for so deciding in due course. What follows are those reasons. 2 The relevant history leading to the litigation in this matter is set out in the judgment of the Court on the substantive appeal: City of Canada Bay Council v F & D Bonaccorso Pty Ltd & Ors [2007] NSWCA 351 at [5] to [12]. It is sufficient for present purposes to note the following facts:

(a) On 13 February 2003 the first respondent instituted Class 4 proceedings (the proceedings) in the Land and Environment Court against the City of Canada Bay Council (the Council) and Arinson Pty Ltd (Arinson) seeking a declaration that a development consent granted by the Council to Arinson on 11 December 2002 (the 2002 consent) for the erection of a residential flat building upon a number of properties in Chapman Street, Strathfield (including Nos. 17 and 19 Chapman Street) was invalid and of no force or effect and an order restraining Arinson from acting on that consent.

(b) On or about 29 March 2003 the first respondent filed Points of Claim in the Land and Environment Court, para 11 of which set out the particulars relied upon to support the allegation that the 2002 consent was invalid. None of those particulars alleged as a ground of invalidity that Nos. 17 and 19 Chapman Street (Nos. 17 and 19) were community land within the meaning of s 26 of the Local Government Act 1993 (the LG Act ).

(c) On 30 June 2000, Arinson contracted to purchase five properties in Chapman Street including Nos. 17 and 19. The latter were at all material times relevantly owned by the Council. That contract was, apparently, never completed and in fact was cancelled in December 2003 after Arinson was placed in liquidated.

(d) On 10 March 2003 I was consulted by a director of Arinson in my then capacity as a member of the Senior Bar. I have no memory of that conference or of the advice which was either sought or given although I do not, of course, deny that such a conference took place. I can only assume that my advice was sought in relation to the subject matter of the proceedings.

(e) At the hearing of the present application the first respondent called upon a Notice to Produce which had only just been served upon the solicitors for the third and fourth respondents seeking the production of, amongst other things, any brief that was delivered to me in the matter and any advice that I had given in written form or any notes that had been made at the conference that would throw light upon the advice that was both sought and given. No documents were produced in response.

(f) On 28 April 2003 I was appointed a Judge of this Court. It was not suggested that apart from the one conference on 10 March 2003 that I had any further communication with Arinson or its solicitors with respect to the subject matter of that conference.

(g) On 19 May 2003 Arinson lodged a new development application with the Council for a similar type of development to that the subject of the 2002 consent. The Council approved that application on 11 December 2003 (the 2003 consent). Apparently it was a condition of the grant of that consent that Arinson surrender the 2002 consent which, apparently, it did by Notice of Surrender dated 7 August 2003. Accordingly, the validity of the 2002 consent became academic. However, the first respondent reconstituted the proceedings by amending its Points of Claim to allege the invalidity of the 2003 consent on numerous grounds, some of which overlapped with its grounds of alleged invalidity of the 2002 consent.

(h) When the hearing commenced in the Land and Environment Court before Biscoe J, the Council conceded that the 2003 consent was invalid upon the ground that the development application had not been advertised as required by law. By this stage Arinson had dropped out of the picture as Nos. 17 and 19 had in the meantime been acquired by the third respondent who, together with Arinson and the fourth respondent, had filed submitting appearances with respect to the proceedings.

(i) In December 2003 Arinson was placed in liquidation, the Council cancelled its contract for the sale of Nos. 17 and 19 to Arinson and on 9 December contracted to sell those properties to the third respondent.

(j) On 28 July 2006 the first respondent filed Further Amended Points of Claim in which, for the first time as far as I am aware, it alleged that Nos. 17 and 19 had become community land as and from 1 July 1993. It was then alleged that pending the adoption of a plan of management for those properties, the nature and use thereof must not be changed as mandated by s 44 of the LG Act .

(k) On 8 August 2006, after the proceedings in the Land and Environment Court had been fixed for hearing, the transfer of Nos. 17 and 19 from the Council to the third respondent was stamped and on 22 August 2006 that transfer was registered.

(l) Thereafter on 5 September 2006 a Further Amended Class 4 Application was filed by the first respondent seeking a declaration that Nos. 17 and 19 were and remained community land within the meaning of the LG Act ; that it was unlawful for the Council to sell or otherwise dispose of those properties and an order that the Register be rectified to show the Council as the registered proprietor of the lots in question. Second Further Amended Points of Claim were filed at the same time, paras 25-43 of which pleaded the necessary allegations to support the relief sought in respect of Nos. 17 and 19 to which I have referred. It would thus appear that it was knowledge of the registration of the transfer of those properties to the third respondent that prompted the reconstitution of the first respondent's case to include what became the only live issues before the primary judge and on the appeal. 3 The first respondent made the following submissions:

(a) It was readily apparent that I was consulted on 10 March 2003 in respect of the first respondent's assertion that the 2002 consent was invalid and that in all probability I would have given advice as to whether that was so or not.

(b) It was also likely that my advice was directed towards the furtherance of the development of the land the subject of the 2002 consent which included Nos. 17 and 19 and that I would have advised Arinson with respect to either upholding the validity of the 2002 consent or as to the steps that might be taken to obtain a valid consent for the type of development to which the 2002 consent related.

(c) It was also probable that I was provided with confidential information relating to the proceedings as then constituted which might possibly have been relevant to the status of Nos. 17 and 19 as community land .

(d) If the first respondent is successful on the appeal, the development of the land (including Nos. 17 and 19) owned by the third respondent in a manner similar to the development the subject of the 2002 and 2003 consents will be frustrated unless and until the status of Nos. 17 and 19 is altered from community land to operational land which would require the making of a new local environmental plan.

(e) Accordingly, it is in the interests of my former client, namely Arinson, that the appeal should be successful so that the third respondent remains the registered proprietor of Nos. 17 and 19.

(f) Although the second, third and fourth respondents filed submitting appearances in the proceedings, nevertheless submissions filed in the appeal on behalf of the third and fourth respondents (there being no submissions filed on behalf of Arinson), seek to support the Council's appeal.

(g) A fair minded lay observer would reasonably apprehend that it was possible that I would not bring an independent mind to the determination of the appeal as, even subconsciously, I would be concerned to further the interests of my former client by upholding the appeal. 4 Reliance was also placed upon r 16 of the New South Wales Barristers Rules which relevantly provides that a barrister must seek to advance and protect his client's interests to the best of his or her skill and diligence. Although I am no longer a barrister it was submitted that the rule must be relevant to what a fair minded lay observer might reasonably apprehend. It was thus submitted that given my knowledge of the rule which bound me whilst a barrister (and notwithstanding that I am no longer bound by that rule), and given that the success of the Council's appeal will prevent the third respondent from proceeding to develop Nos. 17 and 19 in conjunction with the other land it owns in Chapman Street, it must be reasonable for a disinterested bystander to apprehend the possibility that I would not approach the determination of the appeal with a completely open mind. 5 The principles that inform the first respondent's application that I recuse myself for apprehended bias are well established in the judgments of the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344-355; 348 and The Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 548-549. 6 In Webb v The Queen (1994) 181 CLR 41 at 74, Deane J identified four distinct, though overlapping, categories of cases involving disqualification by reason of the appearance of bias: interest; conduct; association and extraneous information. In the present case, as far as I can tell from the first respondent's submissions, the only relevant category is that of association. This is because there is no factual basis upon which a fair-minded lay observer could possibly, let alone reasonably, conclude that I was provided with any confidential information which was relevant to the issues the subject of the appeal. Nor, in my view, could such an observer, being aware of the facts to which I have referred in [2] above, possibly consider that I provided advice that touched upon any of the issues the subject of Biscoe J's decision on the appeal. 7 As I have sought to demonstrate, those issues did not arise until, at the earliest, July 2006 when for the first time the first respondent pleaded that Nos. 17 and 19 were community land. 8 In Ebner, the relevant principles were stated in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in the following terms (at 344-355): "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. 7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility ( real and not remote ), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 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. … 19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case . 20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable." (Emphasis added) 9 The first respondent emphasised that if I considered that there was any real possibility that my participation in the hearing of the appeal might lead to the reasonable apprehension that I might not bring an impartial mind to the resolution of the issues in the appeal, I should recuse myself. The question clearly, is one of possibilities (but real and not remote) and not probabilities. However, as was emphasised by Kirby J in Jia Legeng at 549 [135], apprehended bias must still be "firmly established" and it is not enough that the fair minded lay observer has only a vague sense of unease or disquiet. 10 Of particular significance in the present case is [8] in the judgment of the majority in Ebner which I have set out above. Not only does the relevant principle require the identification of what it is said might lead me to decide the appeal other than on its legal and factual merits, but no less important is an articulation of the logical connection between the matter complained of and the feared deviation from the course of deciding the appeal on its merits. 11 The application of this principle was recently visited by the High Court in Smits v Roach [2006] HCA 36; (2006) 227 CLR 423. In that case the respondents engaged a large firm of solicitors (Freehills) to act on their behalf in relation to the exploitation of a peat deposit. As a result of the firm's alleged negligent advice the respondents failed to apply for a mining license and thus lost the right to exploit the deposit. 12 The respondents then engaged another firm of solicitors (the appellant) to act for them in a professional negligence claim against Freehills. Proceedings were commenced by the appellant on behalf of the respondents but some years later the appellant's retainer was terminated. The appellants then commenced legal proceedings against the respondents to recover the legal costs allegedly owed to them. The proceedings were heard by a judge whose brother was at all relevant times chairman of the partners of Freehills. His Honour disclosed his association with his brother as a consequence whereof the appellants requested that he disqualify himself. He refused to do so. This Court accepted the appellant's claim of apprehended bias on the part of the judge although it also found that the appellant had waived its right to object to his Honour's participation in the case. The appellant appealed to the High Court which dismissed the appeal, upholding this Court's finding of waiver. However, all members of the High Court other than Kirby J considered that this Court had erred in finding that a fair-minded lay observer might reasonably have apprehended that the judge might not bring an impartial mind to his task in that there had been no articulation of any logical connection between the matter complained of and the feared deviation from impartial decision making, and no explanation as to why it would be reasonable to apprehend that the judge might otherwise decide the case other than on its legal and factual merits: see at 444 [54]; 445 [58]. 13 In Smits this Court ([2004] NSWCA 233; (2004) 60 NSWLR 711) held that as the judge's brother had a pecuniary interest in Freehills, that fact might give rise to a reasonable apprehension of bias in circumstances where so far as was known the relationship between the judge and his brother was close. In the High Court it was accepted that Freehills had an interest in the litigation which the judge was asked to determine and that the judge had an association with Freehills through his brother. However, that Court found that there was no logical connection between that association and the fear that the judge would deviate from deciding the issues in the case upon their legal and factual merits. 14 In the present case the matter complained of is my association with Arinson (and, apparently, the third and fourth respondents) as a consequence of the single conference I had with a director of Arinson on 10 March 2003 and the apprehended fear that I will not decide the issues in the appeal (which have no relationship whatsoever to what I infer was the matter upon which my advice was sought and given in 2003) on their legal and factual merits. 15 In my opinion the situation in Smits has some resonance with that in the present case. In 2003 I had an association with Arinson but not the third respondent who was the ultimate transferee of Nos. 17 and 19 (I note that different solicitors appear for Arinson in the proceedings and on the appeal to those who appeared for the third and fourth respondents). On the facts known to the fair minded lay observer, that association was confined to the giving of advice relating to the challenge by the first respondent to the validity of the 2002 consent. Accordingly, the issues which I am now asked to determine relate to matters unassociated with the matter upon which my opinion was sought and apparently given in March 2003. 16 Although the proceedings upon which I was asked to advise in 2003 are the same proceedings which are the subject of the appeal, the issues have changed radically to the point where there is no relationship at all between those which were raised with me in 2003 and those which were the subject of the decision of Biscoe J and which are now the subject of the appeal. In these circumstances, one asks how an intelligent, fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues on the appeal merely because the client to whom I gave advice in 2003 has an interest in the outcome of that appeal. 17 In my opinion there is no logical connection between the two so that the second step referred to by the majority in Ebner at [8] of their Honours' judgment is not satisfied. On the contrary, the connection, if it exists at all, is tenuous to the point of being speculative. Thus the present case, it seems to me, involves a far more ephemeral association between myself and Arinson than was the case in Smits where the alleged disqualifying association was a close family connection. The particular nature of that association referred to in Smits by Kirby J (albeit in dissent) at 462 [115] was far more likely to establish in the mind of the reasonable lay observer the relevant link or connection referred to in Ebner than the fleeting, impersonal, professional association between myself and Arinson on a single occasion and in an entirely different capacity. Unlike the approach of Kirby J in Smits with respect to the close familial association between the judge in that case and his brother, I do not believe that it could be said that the "association" such as it was between myself and Arinson is "ostensibly incompatible with a manifestly impartial determination" by me of the issues in the appeal: see Smits at 462 [114]. 18 Finally, I would respectfully express the opinion that the fair minded lay observer could not reasonably apprehend that there was a real, as distinct from a remote, possibility that I might not bring an impartial mind to the resolution of the issues in the appeal simply because I had advised a party to the appeal over four years ago as to an aspect of the proceedings no longer in issue but nevertheless might wish, albeit subconsciously, to see that party succeed on the appeal. The apprehended deviation from my deciding the appeal on its merits feared by the first respondent, in my view, is not based upon a substantial ground capable of supporting that fear. 19 It is for the foregoing reasons that I declined to recuse myself from the hearing of the appeal. **********

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.