VBAB|2025-10-28|Before: Member P

The Applicant is the owner of 51 Glenister Drive, Eltham (Adjoining Property).
The Respondent is the municipal building surveyor for the Shire of Nillumbik.
The Interested Party is the owner of the Subject Land.
At the oral hearing of the proceeding on 3 July 2025, the panel chair disclosed to all the parties that he had previously and many years ago sat on hearings for the Building Appeals Board (BAB) with the Respondent. The panel chair noted that the Respondent had not been a member of the BAB since 2019, and the Panel Chair has not been in contact with the Respondent nor engaged with him since he left the BAB.
All of the parties acknowledged the disclosure, and no comments were made by any party in respect to the disclosure. At no time during the hearing was the issue of apprehended bias raised by any of the parties. No determination has been drafted in relation to this matter, and no decision has been made by in respect to any of the substantive issues to be determined yet.
On 14 July 2025, the BAB Registry received an email from the Applicant enclosing a letter dated 10 July 2025, addressed to the Chairperson of the BAB (Letter). The Letter asserted that the chair of the panel should recuse himself from the matter. This was largely because of his prior association with the Respondent when he was a member of the BAB years ago.
More specifically, the letter from the Applicant stated that given the adjudicative nature of their past relationship, it is implausible that two professionals who worked together in a judicial context did not form views about one another's judgment, competence, and credibility - qualities which are central to the BAB's assessment in this case. It does not matter whether that view was positive or negative, or whether it was formed six months ago or six years ago: it is the fact that it is almost certain to have been formed that requires recusal. The argument is essentially that the apprehended bias stems from an indirect or direct relationship.

(a) the party seeking disqualification must identify what it is that might lead the decision maker to decide the case other than on its legal and factual merits; and

the party seeking disqualification must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits (Gaudie v Local Court of New South Wales and Anor[3]). We find that the Applicant has not articulated the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits.
The past professional association has no impact on the ability of the panel chair to finally determine the matter. The fact that there was a short professional association does not in these circumstances demonstrate as the Applicant submits any justification that a lay observer might reasonably apprehend that the Chair might not bring an impartial mind to the resolution of the question of the member is required to decide. Such an association in our view does not establish that the panel chair might decide this matter other than on its legal and factual merits.
As noted, the past professional association between the panel chair and the Respondent occurred a number of years ago as members of the BAB and does not evidence any particular close connection or relationship other than being fellow BAB members for a short period of time. It should be also noted that the two BAB Members are from very different professional backgrounds and different commercial and business sectors and have not had any personal or professional interactions or dealings since the Respondent left the BAB.
The Panel further submits, that the appointment of professional members to panels and tribunals, as most of the BAB's members are, means it is not unusual for members to be professionally acquainted with practitioners who are the subjects of hearings
The Panel notes that in Gaudie v Local Court of New South Wales & Anor[4] the Court opined that a judicial officer should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter.
The fair-minded observer according to the courts is taken to be aware of the nature of the decision and the context in which it was made, and as having 'a broad knowledge of the material objective facts...as distinct from a detailed knowledge of the law or knowledge of the character or ability of the decision maker.
That test, the Panel submits applied in Owners Corporation PS419696X v Goh[5], Justice Garde observed in that case, that while the governing principle applies to decision-makers such as the Board, it is necessary to recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the greater divergence there is from the judicial paradigm.
In this case the Applicant is essentially arguing that apprehension of prejudgment or bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.
The decision in Law v Australian Broadcasting Tribunal[6] (Australian Broadcasting) outlined the attributes of the reasonable lay person. The Court also provided guidance as to the parameters in circumstances where the apprehension of prejudgment or bias results from an indirect or direct relationship.
The Court in the Australian Broadcasting case held that:

A reasonably bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry . . . When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.

On the basis of the relevant case law and in particular the decision in the Australian Broadcasting case, the Panel is of the view that in the present case, it is not firmly established that a reasonable bystander will have a reasonable fear that the decision-makers mind is so prejudiced in favour of a conclusion already formed that he will not alter that conclusion irrespective of the evidence or arguments presented to him.
The factors identified above also demonstrated that the prior association between the parties should not lead a fair-minded lay observer to apprehend that the Panel Chair might not bring an impartial mind to the question being determined
Accordingly, we find that the panel chair need not recuse himself/myself from making the determination of the substantive matters the subject of the original hearing.

�Downey v The Municipal Building Surveyor for the Shire of Nillumbik [2025] VBAB 136; (28 October 2025)

PRACTICE AND PROCEDURE - Allegation of apprehended bias made by the applicant in the proceeding - whether a member on the panel considering the appeal proceeding ought to recuse himself on the ground of apprehended bias - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; Gaudie v Local Court of New South Wales and Anor [2013] NSWSC 1425; Owners Corporation PS419696X v Goh [2021] VSC 126; Law v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 considered.

�Downey v The Municipal Building Surveyor for the Shire of Nillumbik [2025] VBAB 136;

At a glance

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Judgment (9 paragraphs)

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Cases Cited (4)

�Downey v The Municipal Building Surveyor for the Shire of Nillumbik [2025] VBAB 136; (28 October 2025)