Remitter
109In consequence of the above conclusion it is necessary to set aside the Commissioner's judgment and remit the matter to a Commissioner of this court for further consideration. The issue for the court is whether that should be to Brown C, or to a Commissioner other than Brown C, to be nominated by the Chief Judge. The latter type of remittal order is sometimes referred to as an " exclusionary order ".
110Counsel took the court to Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 (' Castle '). In that case, the central issue was the interplay between two provisions of the LEP. In finding against the development, the then Senior Commissioner expressed his dislike of the proposed development in trenchant and powerful terms. In the s 56A appeal, Talbot J upheld only three out of 14 grounds of appeal, but that those errors were sufficient to vitiate the decision. He did not order that the matter be remitted to a different Commissioner.
111In the Court of Appeal, Bell J agreed with Tobias JA, who set aside the remittal order, and substituted an order that the matter be remitted to a different Commissioner. Basten JA took a fairly narrow view of the jurisdiction of the Court of Appeal in the matter and, at the end, set aside Talbot J's order and remitted the matter to the Land and Environment Court " for a judge of that court to determine whether the order of remittal to a Commissioner include the words 'other than the Senior Commissioner' ". He otherwise dismissed the appeal. The binding authority of the Castle decision is, therefore, in the reasoning of Tobias JA, especially on this point (see [70]-[86] of the judgment).
112Tobias JA held that both the s 56A appeal judge, and the Court of Appeal under s 57(2)(b) and s 75A(10) of the Supreme Court Act 1970, had the power to remit the proceedings to a Commissioner other than the trial Commissioner. Tobias JA restated his view, with which Handley and Ipp JJA had agreed, in Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 (' Basemount ') . In Basemount he had emphasised (at [25]) that he was not intending to " lay down any principle of general application to s 56A appeals " on the appropriateness of an exclusionary order. Castle, therefore, demonstrates that a remitter will always depend on all the facts and circumstances of the particular case.
113At [71]ff of Castle , Tobias JA referred to a decision of the Court of Appeal in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 (' Seltsam '), which was decided later than Basemount and involved a case before the Dust Diseases Tribunal. In Seltsam, Mason P exercised the claimed power to make an exclusionary order. He expressly agreed with Basten JA that the power should be exercised with caution and with respect for the authority of the judicial officer or officers in the court or tribunal below who have authority to assign cases. His Honour continued (at [15]):
But where this Court is seized of a matter that persuades it as to the propriety of making a direction of this nature, the power should be used. It should not be left to the President, Chief Judge or List Judge of the court or tribunal below to have to make enquiries and form a judgment on such matters. Rather, absence of a direction should be read as a signal that it is open (but not obligatory) to assign the new trial to the original judicial or other officer.
114Tobias JA then quoted at some length from Basten JA's decision in Seltsam . Basten JA, contrary to the decision of Mason P, had determined that the matter should be left to the President of the tribunal. In Seltsam , Ipp JA had agreed with Mason P, and had dealt in terms with some of the comments of Basten JA, quoted by Tobias JA. Ipp JA said (at [142]):
... It is not an extraordinary occurrence for this Court to order that the case be heard afresh by a different judge...Where a judge has made credibility findings and has indicated a preference for a particular witness or witnesses or has failed to accord a party procedural fairness, the proper administration of justice may require the making of such an order. The need to do so will then arise not because of any established or presumed bias on the part of the judge but simply because of the public interest in providing the appearance of impartial justice. Often, the Court will make such an order of its own motion without hearing the parties. This practice recognises that the identity of the judicial officer who is to hear a particular case should not be regarded as a matter that could benefit or prejudice a particular party. It is not a requirement of procedural fairness that the parties be informed that the remitted trial be heard before a new judge. Moreover, it would often be invidious for a party to seek such an order.
115Having quoted Ipp JA, Tobias JA went on to say (in Castle at [76]):
Like Mason P, I agree with Basten JA that this or any other Court should be slow to make an order that proceedings be remitted to a judicial officer other than the officer who heard the original proceedings. However, I respectfully disagree that the curial reticence to make such an order should increase in relation to the constitution of a statutory tribunal created as a court of record or that the making of such an order demonstrates a lack of confidence on the part of the Court in the ability of the relevant tribunal properly to organise its own affairs. I therefore agree with the approach of Mason P and Ipp JA which I have recorded in ... these reasons ...
116Tobias JA pointed out (at [80]) that none of the errors identified by Talbot J in Castle " were of the type found by the Chief Judge in her judgment in Basemount". The Senior Commissioner's exercise of his discretion in Castle was, therefore, not shown to be either " unreasonable or plainly unjust ".
117Tobias JA went on to consider further submissions made on behalf of the appellant, and it is appropriate to repeat at length His Honour's analysis (at [82]-[86]):
82 It was submitted that in applying that test, his Honour ought to have concluded that a fair-minded lay observer might reasonably apprehend that if the matter was remitted to the Senior Commissioner, he might not bring an impartial mind to the redetermination of the appellant's application on its merits and this was particularly so where, on any such re-determination, cl 30 of the LEP was to be taken out of the equation. The error of law committed by the primary judge, if there was clearly an apprehension of pre-judgment in the relevant sense, was his Honour's failure to determine that the interests of justice required the making of an exclusionary order. Further, it was submitted that his Honour erred in law by failing to make such an order by leaving it to the Chief Judge to determine whether the Senior Commissioner should hear the remitter or some other Commissioner. In other words, his Honour had a duty, which he could not defer to the Chief Judge, to determine for himself whether the Senior Commissioner was disqualified from hearing the remitter upon the ground of apprehended bias and, if he came to the conclusion that he was so disqualified, to make the appropriate exclusionary order.
83 The appellant further submitted that the Council's submission that the appellant had been unable to demonstrate "something more than error" on the part of the Senior Commissioner so that the pre-conditions to the making of an exclusionary order referred to by Mason P in Seltsam at [12] had not been satisfied, was in error. For an exclusionary order to be made, not only must the decision-maker be shown to have committed error (thus entitling the appellant to an order for remitter), but also there was a need to demonstrate something more being in the present case, that the Senior Commissioner acted in such a way as to give rise to a reasonable apprehension of bias: see also Basemount at [23].
84 Accordingly, in the present case, not only had it been demonstrated that the Senior Commissioner had erred in law in a number of respects thus requiring a remittal order, but also "something more than error" had been demonstrated, namely, reasonable apprehension of pre-judgment of the merit issues which were required to be determined afresh on that remitter.
85 In my opinion the appellant's submissions should be accepted. With respect to the Senior Commissioner, there can be little doubt that the nature and expression of his findings were such as to clearly give rise to a reasonable apprehension that he may not decide the case on remitter impartially in the relevant sense. This is because he was required on the evidence then before him to determine the very merit issues in respect of which the appellant's development application is now required to be determined afresh. This he did adversely to the appellant. He has thus pre-judged those issues so far as the remitter is concerned. This is not to say that he was not justified in rejecting the development on its merits for the reasons he then gave. It is not for me to comment on the Senior Commissioner's merit decision one way or the other. I can assume for present purposes that it was entirely justified. But that does not detract from the fact that the Senior Commissioner determined the development on its merits which, whether justified or not, would reasonably convey to a fair-minded lay observer that if the matter remitted to him, he may not bring an impartial mind to a fresh determination of the very same merit issues.
86 Accordingly, it was insufficient, in my respectful view, for the primary judge to leave the decision as to whether such a reasonable apprehension existed to determination by the Chief Judge when re-listing the matter pursuant to his powers under the Court Act. Once his Honour was seized of the matter it was his duty, in accordance with principle, to determine whether there was a reasonable apprehension of pre-judgment and if so, to direct that the proceedings be remitted to a Commissioner other than the Senior Commissioner. Such a direction ought to have been made. In my respectful opinion his failure to do so constituted appellable error.
118Tobias JA went on to deal with the question of whether the Court of Appeal could and should exercise the exclusionary power in disposing of the appeal, and concluded (at [99]-[102]) in the affirmative.
119The essence of the principle espoused in Basemount had been articulated by Mahoney JA in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 (' ANI '), but Tobias JA also relied upon (and quoted at [21]) the following passage from Re J.R.L.; Ex party C.J.L (1986) 161 CLR 342 (at 352 per Mason J):
...It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the
judicial officer will not decide the case impartially or without
prejudice, rather than that he will decide the case adversely to one
party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an
expectation that he is likely to decide issues in a particular case
adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an
impartial and unprejudiced mind in the sense in which that
expression is used in the authorities or that his previous decisions
provide an acceptable basis for inferring that there is a reasonable
apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ''firmly established"...
120In Basemount , on the hearing of a s 56A appeal, the applicant conceded an error of law in the imposition of a condition, and Pearlman J remitted the case to the same Commissioner (Murrell C). In the appeal from Pearlman J's decision, Tobias JA found that the relevant provisions of the Court Act indicate that it is permissible to remit the matter to another Commissioner, but that it is not automatic simply because of the success of the s 56A appeal. His Honour said (at [23]):
Before concluding, I should make it clear that the present case is being decided on its own facts. It should not be assumed that merely because a Commissioner's decision is set aside on a s 56A appeal on the ground of error of law that it necessarily follows that any re-hearing and re-determination of the appeal should be by a Commissioner other than the Commissioner from whose decision the appeal was brought. There are many errors of law which would not require an exclusionary order under s 56A(2)(b). Thus if a Commissioner has mistaken the law and asked himself or herself the wrong question, there may be no reason why the appeal should not be remitted to that Commissioner to be determined by him or her in accordance with law. Again, where the error only involves the misconstruction of a statutory provision or the like there may be no reason why the Court as originally constituted cannot apply the facts as found by it to the law as declared on the appeal. In such cases the Commissioner's earlier decision may have been based on a false issue or be otherwise severable so that there will have been no pre-judgment on the real issue.
121In view of the finding that the Commissioner was guilty of a pre-judgment of " quite a high order ", Tobias JA concluded that Pearlman J had erred in declining to order the remittal of the matter to a different Commissioner.
122I accept that Tobias JA has set out in Castle and Basemount the correct approach to be taken in respect of exclusionary orders when " something more than error " has been established.
123Mr Galasso, for the Council, submitted that an exclusionary order should be made on this appeal on the basis that Commissioner Brown's consideration of the appeal was materially infected by errors in his approach to zoning and his consideration of SEPP 1, and also on the basis that he displayed " something more than error ", namely pre-judgment. He relied on the judgment of the Court of Appeal in Basemount , but also submitted that the notion of pre-judgment needed to be considered also in light of the recent majority High Court decision in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 (' BAT '), especially at [1], [49], [103]-[104], [139], [145].
124In the Dust Diseases Tribunal Curtis J had made an interlocutory finding, adverse to the tobacco company, that it had dishonestly concealed destruction of relevant documents, that might have proven prejudicial to it in litigation, under the pretence of a document retention policy. His Honour later refused to disqualify himself from presiding in subsequent proceedings brought against the company by another party. The Court of Appeal agreed with him, but Allsop P dissented from the majority decision of Tobias and Basten JJA. The company appealed that " split " decision to the High Court.
125There does not appear to be any major difference among the judges of the High Court as to the correct principles to apply, but the court divided on the outcome of applying them to the facts of the case, clearly indicating that bias cases always involve questions of degree, " and particular circumstances may strike different minds in different ways " (per French CJ at [3]).
126French CJ said (earlier in [3]):
In my opinion the Court of Appeal was correct. The judge made it clear in the interlocutory ruling that he was basing his conclusions on the limited evidence put before him and that a different picture might emerge at trial. His finding would not appear, to a fair-minded lay observer, to give rise to a reasonable apprehension of bias in different proceedings some years later against the same defendant. In my opinion, which differs from that of the majority in this case, the appeal against the decision of the Court of Appeal should be dismissed.
127In reply, Mr McEwen submitted (pars 32ff) that, as stated by Castle and Beaumont , an exclusionary remittal order is discretionary and depends on the facts and circumstances of the case, and the appellant had not demonstrated " something more than error " on the Commissioner's part.
128Mr McEwen distinguished the present case from the situations in Castle, Basemount , and Preferred Projects (Buildings) Pty Ltd v Warringah Council [1999] NSWLEC 283; 106 LGERA 144 (' Preferred Projects '), in which Talbot J held that a Commissioner be disqualified from hearing the proceedings on the ground that he had in fact already made up his mind in respect of a number of matters requiring determination in the new appeal, giving rise to a genuine apprehension of bias. His Honour said (at [24]):
The apprehension that the Commissioner may not bring an unbiased and open mind to the issues which arise for determination for a second time is, in my opinion, well founded. The present application is an attempt to meet the observations made by the Commissioner on the last occasion. For the council to succeed it is apparent that the Commissioner will be expected to change his mind about opinions and conclusions presented by experts and with whom he has actually chosen to agree or disagree. A fundamental problem stems from the Commissioner expressing views about foreshadowed changes which it was not necessary for him to express in the earlier proceedings. That having been done however, the disinterested observer would be entitled, in my opinion, to apprehend that it is unlikely that the Commissioner can be brought to the position where he actually changes his mind.
129Mr McEwen submitted that the facts and circumstances of the present case did not demonstrate pre-judgment, but, rather, were similar to Neate v Shellharbour City Council (No 2) ("Neate") ([2007] NSWLEC 541, in which Pain J upheld a s 56A appeal and remitted the matter to the same Commissioner. Her Honour said that pre-judgment on the " real issue " must be " firmly established ", and that, in fact, the real issue in that case had not yet been decided, so there could be no reasonable apprehension of a pre-judgment of it, Her Honour said (at [15]-[16]):
15 I agree with the submission of the Applicant that as the Senior Commissioner has applied the wrong legal test he has not yet determined the matter in issue. The reasonable apprehension of pre-judgment of the merit issue does not arise.
16 I do not consider on the facts and circumstances of this case that a fair-minded observer would have a reasonable apprehension of pre-judgment on the part of the Senior Commissioner if the matter were remitted to him. It follows that I do not consider an exclusionary order for remittal is appropriate in this case.
130Mr McEwen submitted that the legal consequence of Brown C's conceded error in the present case, i.e. applying the wrong test to determine whether the development met objective (iii), was that the relevant question was not determined. Mr McEwen argued that there was no reason the Commissioner could not re-determine the question, because there was no evidence to suggest that he would not be impartial.
131In reply, Mr Galasso submitted that the Commissioner's lack of impartiality was evident by the way in which the applicant pleaded its case - " individually and...accumulatively " - because the Commissioner effectively determined what he would do on the SEPP 1 objection. Furthermore, he submitted that the present case differed from Neate in that this matter was based on the " factual circumstances or the principles " of the SEPP 1 objection, rather than a failure to have regard to a DCP. Mr Galasso also suggested that the respondent was resisting an exclusionary remittal because " one could not seriously be regarded as wanting to hang on to Commissioner Brown unless one anticipates an expectation of a not dissimilar result " (T 11.02.11, p49, L49-p50, L1).
132I do not accept Mr Galasso's arguments in favour of an exclusionary remittal order, and I consider that it is appropriate to remit the matter to Commissioner Brown to redetermine the matter in regard to ground 1, and objective (iii).