24 The indirect pecuniary interest arises from the indirect financial assistance obtained through grants from the Council for research.
25 This evidence of association was not intermittent. Rather it revealed a lengthy and substantial professional association through different points of contact extending over a number of years and continuing throughout the Class 1 proceedings (written submissions par 21). The feared diversion from impartial decision making in the eyes of a fair-minded observer, having knowledge of the facts, could reasonably be expected to arise because of the close association between Dr Taylor and the Council.
Without fear or favour
26 Further, that association gives the appearance that Dr Taylor was in the Council's camp, much as one could apprehend bias if the judge were a close relative of one of the parties, or was recently an employee of the party. A commissioner who had undertaken and continued to undertake (including during the hearing) collaborative professional work with Council officers and whose university had been the beneficiary of Council grants earmarked for his research, might be perceived as not bringing an impartial mind to the resolution of the dispute.
Non- disclosure
27 The apprehension of bias is compounded by Dr Taylor's silence about his prior and continuing association with the Council when the matter was listed before him, or at any continuing aspects of the hearing. The fair-minded observer would be inclined to be more concerned about the association, and more inclined to infer a want of impartiality, in circumstances where the Commissioner failed to disclose the association (written submissions par 22).
Fair-minded observer
28 Murlan argued that Dr Taylor's academic post and advancement at Macquarie University was based, in part, on establishing successful community engagement (submissions par 23). Dr Taylor's connection with the Council must have fulfilled or contributed to the satisfaction of those requirements. Murlan submitted that a fair-minded observer would infer that collaborative research projects with the Council, research funding grants from the Council, and the collaborative presentation and publishing of conference papers with Council staff would satisfy community engagement in these terms. Further, as a member of committees established by the Council, Dr Taylor was able to contribute to the development of Council policy.
29 Dr Taylor made such claims in an ARC funding application (see exhibit A p 193). Indeed, Dr Taylor expressly made a claim that "My research findings from (sic) have guided policy and environmental management at Ku-ring-gai Council" ("Australian Research Council Linkage Projects (Round One) - Application Form for Funding Commencing in 2008"). He goes on to acknowledge that the successful application of his riparian assessment tools across the Ku-ring-gai local government area led in turn to their implementation in Hornsby, which together gave him such "success and profile in this area" that he achieved an appointment as an acting commissioner of the Land and Environment Court. The fair-minded observer might very well think that Dr Taylor was saying that he was appointed to the Court because of his successful engagement with the officers of Ku-ring-gai Council.
30 Murlan submitted that Dr Taylor's academic career progression, reliant on demonstrating successful community engagement, amounted to an indirect pecuniary interest (written submissions par 26). The fair-minded observer might apprehend that Dr Taylor was also a university academic whose status and seniority within the university, and prospects for future advancement, depended upon the maintenance and enhancement of links with this particular Council, and for that reason, he might not have an impartial mind when issues that relate to that particular Council were to be considered and determined. Those examples of the association between Dr Taylor and the Council raise a reasonable apprehension of bias whether or not the projects for which grants were made, or the topics on which the papers were presented, were directly connected or referable to the issues in the proceedings.
31 A detailed list of research papers identified by Dr Taylor in the ARC application was filed in Court. The analysis identified a total of ten research papers from 2005 to April 2007. From these ten papers, eight referred either directly or indirectly to the Ku-ring-gai local government area and ecological riparian management. Six research papers were identified as being co-authored with Council employees, and six research papers were identified as having published acknowledgement of Council support, with some overlap of the two. Two of the research papers not co-authored with Council employees acknowledged Council support.
Submissions of the Attorney as Intervenor
32 The Attorney submitted that the Court's task was to make the required evaluative judgment of whether a fair-minded lay observer might reasonably apprehend that Dr Taylor may not have an impartial mind in the Class 1 proceedings regarding the two errors the Court of Appeal identified in relation to a failure to apply the correct test to questions of association. The first error related to Dr Taylor's attendance at the 5th Australian Stream Management Conference in May 2007 (the Albury conference) while the Class 1 proceedings were part-heard where two papers Dr Taylor co-authored with another Council employee were delivered (Attorneys submissions par 7; see also [20] and [57] of the Court of Appeal judgment). The second error was Dr Taylor's "on-going collaborative association" with the Council in relation to the ARC grant (see [63] of the Court of Appeal judgment). In relation to both errors the Court erred in requiring a logical connection between Dr Taylor's activities and the issue in dispute in the Class 1 proceedings. On remitter, this Court's task is to make the required evaluative judgment regarding the two matters in respect of which the Court of Appeal held the primary judge failed to apply the correct test to questions of association. The other matters should be considered only to the extent, if any, they demonstrate the closeness of the relationship between Dr Taylor and the Council at the time of the Class 1 proceedings.
33 Murlan refers to the timing of the Albury conference and the ARC grant as "particularly significant" (Applicant's outline of submissions par 19), but also cites in support of its submissions various other matters that it previously relied upon in the Court of Appeal, including Dr Taylor's membership of the Bushland, Catchments and Natural Areas Reference Group (BCNARG) and the Council's Small Community Grants Committee (SCGC), the Council's grants of funds to or for the benefit of Dr Taylor and students under his supervision in 2005 and 2006, Dr Taylor's collaboration on projects, papers and supervision of students with David Wilks at unspecified times, and his collaboration on conference papers and professional presentations with Peter Davies between 2004 and 2007 (Applicant's outline of submissions par 18). With the exception of Peter Davies' involvement with papers presented at the Albury conference, as indicated above, the Court of Appeal did not identify errors in this Court's approach to any of these other matters when taken individually.
Fair-minded observer
34 The Attorney argued that in making the required evaluative judgment on remitter, the extent of the knowledge to be attributed to the fair-minded observer is important. It is necessary to identify the extent of such knowledge in order to determine, according to the Ebner test, what the observer might apprehend in the context of a particular case. Mason CJ and Brennan J attributed knowledge of the "actual circumstances of the case", including the circumstances leading to the bringing of the action, to the hypothetical fair-minded observer in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87. In S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 the majority of the Court of Appeal (Priestley and Clarke JJA) considered the level of knowledge attributable to a moderately informed observer. In Najjar v Haines (1991) 25 NSWLR 224 at 263 Rogers AJA considered the majority and Kirby P's dissenting approach in S & M Motor Repairs at 368-69 with approval.