(a) they were not required to be legally qualified but were required to have qualifications, knowledge or experience relevant to the subject matter of such proceedings;
(b) they were not bound by the rules of evidence, or matters of form or technicality and were entitled to rely upon and apply their own knowledge and experience to the resolution of the issues in dispute, and
(c) they stood in the shoes of the consent authority for the purpose of determining the development application.
36 Whilst these factors were characteristic of administrative, rather than judicial, decision-making, it was also significant that the functions exercised by the Commissioners were part of the jurisdiction of the Court, and that their decisions were decisions of the Court and were thus made within the institutional structure of the Court. They were, thus, required to exercise their statutory functions independently of the consent authority from which the "appeal" was brought.
Jurisdiction of this Court
37 Whilst the proceedings in this Court were ultimately concerned with the propriety of the decision made by the Commissioners, the appeal was brought to this Court as an appeal against "an order or decision (including an interlocutory order or decision) of the [Land and Environment] Court on a question of law": LEC Act, s 57(1). The relevant question of law must therefore have been one decided (at least implicitly) in the judgment of Pain J, from which the appeal was brought.
38 The manner in which the matter came before Pain J requires some further explanation. The decision of the Commissioners was first the subject of an appeal to her Honour under s 56A of the LEC Act. Like the appeal to this Court, that appeal was against an order or decision of the Commissioners on a question of law. On 29 October 2007, when her Honour handed down judgment dismissing that appeal, the appellant was not aware of the circumstances upon which it now relies to challenge the decision for apprehended bias. Indeed, the matter of bias not having been raised with the Commissioners for their decision, an appeal would not have lain under s 56A on that ground.
39 An affidavit filed in the Land and Environment Court, the contents of which were not in dispute, recounted how the solicitor for the appellant had become aware of the matters now relied upon with respect to Acting Commissioner Taylor, some months after the first judgment of Pain J, dismissing the s 56A appeal.
40 The matter of apprehended bias was sought to be raised before Pain J, pursuant to a notice of motion filed on 22 August 2008. The particular process invoked was not resolved until the hearing of the application. The "re-amended notice of motion" filed in Court on 18 November 2008 required that the orders of the Commissioners be set aside and the matter remitted for further hearing before a Commissioner or judge other than the Commissioners who heard the matter on the first occasion. The orders were sought pursuant to the Court's "incidental or implied power" and pursuant to r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). Because her Honour was of the view that relief should not be granted on the basis of an apprehension of bias, it was not necessary for her Honour to determine the basis of jurisdiction to grant such relief. However, her Honour indicated a tentative view that she had power under UCPR r 36.15(1) to grant the relief sought. In that respect, the Land and Environment Court was not asked to exercise appellate jurisdiction, but original jurisdiction to set aside an order said to have been made "irregularly, illegally or against good faith".
41 In this Court, both parties accepted that the jurisdiction under r 36.15 was properly invoked and extended to a denial of procedural fairness, based on a reasonable apprehension of bias: see Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; 71 NSWLR 262 at [85] (Spigelman CJ, Tobias and Campbell JJA agreeing), following and applying Cameron v Cole [1944] HCA 5; 68 CLR 571 at 591 and Taylor v Taylor [1979] HCA 38; 143 CLR 1 at 16 (Mason J). There was no discussion of the constraint suggested by Spigelman CJ in Miltonbrook that the "exercise of the discretion under r 36.15 must be similarly clear cut".
42 Although no issue was raised as to the power of the primary judge to grant the relief, a further question arises, namely the proper order to be made by this Court, if it be established that her Honour made an erroneous decision on a question of law.
Erroneous decision on question of law
(a) statement of principles
43 The critical legal question determined by her Honour was the correct approach to be adopted in considering whether aspects of Acting Commissioner Taylor's relationship with the Council gave rise to a reasonable apprehension of bias. Her Honour noted the agreement of the parties that the relevant principles were those identified in the joint judgment in Ebner v Official Trustee in Bankruptcy 205 CLR 337 at [6]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ): [2008] NSWLEC 318 at [47]. The joint judgment in Ebner stated at [6] the principle noted at [27] above. In a passage of importance in this case, concerning the application of the test, the judgment continued at [8]:
"Its application requires two steps. First, it requires the identification of what it is said might lead a judge … 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."
44 However, as will be seen below, reliance upon statements of general principle may have deflected attention from identification of the specific issues to be addressed. Impartiality and independence can be undermined in different ways. In dealing with a statement published by a member of the Refugee Review Tribunal, the High Court wrote in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128 at [21] (Gleeson CJ, McHugh, Gummow and Hayne JJ):
"The kind of suspicion presently relevant is one based, not upon interest, or relationship, or association, but upon a form of prejudgment, or predisposition, or, to use the words of Dawson J, 'preconceptions existing independently of the case'."
(b) distinguishing roles
45 Her Honour noted key aspects of the test at [48]. She further noted the Council's submission that, as compared to judges, Commissioners had a different role to play in the Court and were subject to different expectations: at [50]. Her Honour continued at [51]:
"A commissioner of the Court, whether acting or permanently appointed, is expected to have qualifications and experience which enables him or her to carry out the merit functions necessary for the determination of Class 1 proceedings. That is likely to require work experience and study to achieve the necessary expertise. It is also likely to mean a commissioner will have some familiarity broadly with the issues before him or her and that is desirable. That leads to consideration of the Council's submissions … to the effect that several cases have confirmed that acquaintanceship with issues and even preconceived views are acceptable for decision-makers. The cases cited are referring particularly to tribunal members exercising administrative functions rather than courts, whereas the Commissioners must operate within the Court. Their role, however, requires an application of their expertise in a way which is analogous to the role of tribunal members considered in these cases."
46 Her Honour then noted the following reference in Ebner at [4]:
"The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making."
47 As she stated, this passage was applied in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [99] by Gleeson CJ and Gummow J, and the distinction between judicial decision-making and extra-curial processes was further discussed by Hayne J at [180]-[181], and [187]. After referring to the last paragraph, her Honour concluded:
"In the case of an 'expert' tribunal, it is assumed a decision-maker may be under no constraints to account for opinions or facts discovered in the course of some other decision."
48 The appellant took issue with these passages in her Honour's judgment, submitting that they resulted in the application of a less demanding test in relation to the appearance of impartiality, as applicable to Commissioners, in contrast to that applied to judges. That weakening of the principle was said to be erroneous in law.
49 This ground of challenge is rejected. First, in terms of principle her Honour's remarks were in accordance with the distinction drawn in those authorities.
50 Secondly, the distinction was relevant. Although the comments of Hayne J in Jia Legeng, with which Gleeson CJ and Gummow J agreed at [100], were expressly stated to be applicable to cases of pre-judgment, and the appellant presented its case in terms of the Acting Commissioner having a financial interest in the outcome of the proceedings and as having an association with the Council, there were aspects of the grounds which invoked an element of pre-judgment, noted by her Honour at [58]. Indeed, the appellant appears itself to have treated the characterisation of the role of the Commissioner as relevant. In dismissing a submission made by the appellant, her Honour stated at [54]:
"The fact that Dr Taylor is not a judge and does not swear an oath of office is not a circumstance suggesting an apprehension of bias might more readily arise in this case, contrary to the thrust of the Applicant's submission at par 25."
51 Thirdly, this challenge was made in relation to a section of the judgment setting out matters of principle. Her Honour then dealt separately with the various grounds alleging pecuniary interest and inappropriate association. There is no suggestion that, in carrying out this more particular task, her Honour misapplied the principles which she had correctly identified at [50] and [51].
(c) pecuniary interests
52 Her Honour dealt with questions of financial or pecuniary interest in relatively succinct terms at [55]-[56]. Whilst noting that the concept of "interest" extends beyond pecuniary interest, the primary judge noted that the appellant's reliance was on the concept of pecuniary or financial interest, as identified in four respects. Her Honour noted that the benefits to Dr Taylor were "indirect" in that none of the payments for research were made to him directly. She stated that "all sums were paid to Macquarie University and used on research projects generally within Dr Taylor's areas of expertise and interest, riparian management".
(d) association
53 In dealing with the question of association, as a basis for a reasonable apprehension of bias, her Honour acknowledged the width of the concept as expressed by Deane J in Webb v The Queen [1994] HCA 30; 181 CLR 41 at 74, referring to cases where the apprehension might arise from "some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings". Her Honour also referred to statements in the High Court in Re Polites; Ex parte the Hoyts Corporation Pty Ltd [1991] HCA 31; 173 CLR 78. In that case a Deputy President of the Australian Industrial Relations Commission had disqualified himself from sitting on a Full Bench because, whilst a legal practitioner, he had given advice to one of the parties. In concluding that there was no foundation for a reasonable apprehension as to the impartiality of the Deputy President, the Court (Brennan, Gaudron and McHugh JJ) stated at 87-88:
"The prior involvement of a Deputy President with associations or with governments who are frequently parties to proceedings before the Commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case; nor can the prior acquisition of 'skills and experience' amount to such a disqualification. …
A prior relationship of legal advisor and client does not generally disqualify the former advisor, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal advisor should not sit."
(e) the relevant connection
54 Her Honour then proceeded to deal separately with the various grounds of "association" relied on by the appellant, although she did not specifically refer again to the four matters of financial interest which were also relied upon as a basis of inappropriate association.
55 The grounds of appeal challenged three passages in her Honour's judgment dealing with association. The first passage occurred under a heading referring to Dr Taylor's membership of the Council's "Small Community Grants Committee" from 18 October 2005 until 5 August 2008: at [60]. Although her Honour identified specific grounds under particular headings, the discussion was not in all respects fully compartmentalised. Thus, before dealing with the Small Community Grants Committee membership, her Honour had outlined under the previous heading the appellant's case with respect to Dr Taylor's involvement in the reference group, the advisory activities of which were "particularly relied on by the [appellant] as these potentially have some relevance to" the blue gum high forest: at [58]. It seems that her Honour's rejection of this challenge was part of the subject matter of the discussion at [60]. In that paragraph her Honour accepted a submission made by the Council, that "Ebner requires that there be a logical connection between the activities and matters before the decision-maker in the proceedings". Her Honour then stated that there was "no connection" between the activities of the reference group or the Small Community Grants Committee and "the matters in issue in the proceedings".
56 Similar language was used in a different context, to which exception was also taken and to which reference will be made below. Such a connection is implicit in the analysis undertaken in Re Polites. However, that analysis was concerned with a specific challenge to impartiality and was therefore expressed differently from the general statements in Ebner. In Ebner, the relevant connection was expressed to be between the matter giving rise to the apprehension and the "feared deviation from the course of deciding the case on its merits". That test did not necessarily require a connection with the "matters in issue". However, in the context of a suggestion of pre-judgment arising from the Acting Commissioner's membership of the reference group, reference to a connection between the impugned activities and the matters in issue was not inappropriate. This ground of challenge is rejected.
57 The same concern (as to a required connection with an issue in dispute) was raised by the appellant with respect to a number of collaborative research projects undertaken between Dr Taylor and Council staff, together with the conference papers co-authored with a Council staff member, presented at the Albury conference which occurred in the course of the proceedings. With respect to the collaborative research projects which were no longer on foot, it was not inappropriate for her Honour to look for disqualifying connections with the matters in issue in the proceedings. Such an approach was consistent (by analogy) with that required by Re Polites. However, the attendance at the conference while the case was part-heard before the Commissioners fell into a different category. Whilst it might not, by itself, have given rise to any reasonable apprehension of bias, the manner in which that question was addressed was too limited. A case of continuing association must be addressed by reference to the broader test of creating a potential for deviation from the course of deciding the case on its merits, being a test not limited to a connection with the issue in dispute.
58 A similar challenge was raised by the appellant with respect to the two concluding passages in her Honour's judgment at [68]-[69]. The conclusion commenced by acceptance of the principle that "all the facts of the association such as proximity, duration, nature and intensity should be considered", drawing on the reasoning of Kirby P in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 372-373. Her Honour explained that the appellant had relied upon an extensive catalogue of the Acting Commissioner's research and other activities in relation to the Council, but rejected the challenge on the basis that the appellant had done no more than "simply identify the activities of an academic scientist engaged in expanding his expertise through the usual channels of collaborative and other research, and his entirely proper engagement with the community in his area of academic expertise": at [68]. Her Honour then held that neither individually nor collectively did the various matters "including financial interest" suggest that a reasonable bystander might consider there was a possibility that the Acting Commissioner might not bring an unbiased mind to the issues in the proceedings. Her Honour concluded:
"The link between any interest and/or association and the issues in the Class 1 proceedings has not been established."
59 The appellant submitted that her Honour's reasoning in this respect involved a decision on a question of law, namely that the relevant legal test required the connection there articulated. That approach, the appellant contended, was an erroneous application of the reasoning in Ebner.
60 In this Court, the appellant placed emphasis on the circumstances with respect to the ARC grant application. The appellant contended that the preparation and submission of, and expectations in relation to, this application demonstrated a close and on-going connection between the Acting Commissioner and the Council at the time of the hearing. The relationship was not one which had ceased with the Acting Commissioner's appointment to his position within the Court. To the extent that the grant application constituted a continuation of activities which had long pre-dated his appointment within the Court, and accepting that the activities were entirely appropriate and expected of an academic with his research interests, those activities must, nevertheless, have affected his proper role as a Commissioner and the cases on which he could sit. Development applications to which the Council was a party could not properly fall within his exercise of the Court's jurisdiction.
61 In considering such circumstances, the appellant argued that it was erroneous to limit consideration by reference to the connection between the activity and the issue in the proceedings.
62 This complaint is justified. A close connection between an adjudicator and one party may be sufficient to give rise to a reasonable apprehension of partiality without there being any connection between the nature or subject matter of the relationship and the issue in dispute. The relationship in the present case was professional in nature, but in other circumstances it might have been purely social. It is easy to envisage a social relationship having characteristics sufficient to preclude one party acting as an independent decision-maker with respect to disputes between the other and third persons. The fear of deviation from a proper degree of independence and impartiality would not, in such circumstances, necessarily depend upon any connection between the characteristics of the relationship and the issue in dispute. Whilst such a connection may be necessary where that which is feared is pre-judgment of the dispute, to limit the consideration in that way with respect to all forms of association is erroneous.
63 The on-going collaborative association in the present case was one which was no doubt mutually beneficial to both the academic researchers and the Council. The major contributions anticipated from the Universities (through payment of the salaries of the chief investigators), and from an ARC grant, may have allowed the Council to obtain valuable research for a small contribution to the total package. For the chief investigators, including the Acting Commissioner, the carrying out of such research may well have constituted a significant element of their academic and professional careers. There was sufficient basis in these circumstances for the Court to be required to ask whether the reasonable lay observer might reasonably apprehend that the Acting Commissioner might not bring an impartial mind to the determination of an appeal in relation to a development application which had been refused by the Council, in proceedings involving the Council as a party.
Limited statutory disqualification
64 On the assumption that there may have been error in the approach taken by the primary judge to the general law principles of apprehension of bias, the Council contended that the result reached by the primary judge was nevertheless correct, because s 14 would in any event preclude the decision being set aside on such a basis. That followed because, the Council contended, the kind of bias relied upon was less clear cut than that which was dealt with by s 14(1). Even in the case of a failure to comply with s 14(1), the decision of the Court would not be vitiated: sub-s (2).
65 The Council accepted that s 14 was not a comprehensive statement of the circumstances in which a Commissioner might be disqualified from sitting on proceedings. For example, par (a), limited to pecuniary interests, would not cover obvious cases of pre-judgment or bias arising out of previous dealings. Similarly, par (b), whilst referring to officers and employees, would not cover a person who was an applicant for employment or was an independent contractor with on-going expectations of work. Nor would paragraph (b) cover employment by a developer or owner of land the subject of a development application. Accepting the limited operation of the provision, the Council nevertheless argued that sub-s (2) conveyed the statutory intention that a reasonable apprehension of bias based upon interest or association should not vitiate a decision of the Court: cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91].
66 There may well be circumstances where such an inference may be drawn from the terms of a specific statutory scheme: see, eg, Greyhound Racing NSW v Cessnock & District Agricultural Association Inc [2006] NSWCA 333 at [112]-[121]. Such an inference may more readily be drawn in respect of industry or sporting bodies given regulatory powers over their members which, in turn, may elect representatives to the board of the regulatory body. A provision such as s 14 is usually directed to the avoidance of conflicts of interest in respect of boards or other bodies, including local councils. Thus, s 14(1) may be seen as effecting a similar purpose to that of s 451 of the Local Government Act 1993 (NSW), requiring councillors to disclose a pecuniary interest in any matter which may come before the council, and to that of ss 191-192 of the Corporations Act 2001 (Cth) and s 27F of the Commonwealth Authorities and Companies Act 1997 (Cth), dealing with directors having a "material personal interest" in a matter to be decided by the board. Section 14(2) has a counterpart in s 374(d) of the Local Government Act. Section 14 is not, in terms, addressed to the position of a person performing an adjudicatory function in an independent tribunal or court. Its apparent purpose is to ensure that Commissioners, who will often perform functions otherwise vested in local councils, are subject, pursuant to s 14(1)(a), to similar controls designed to avoid conflicts of interest.
67 As already noted, the statutory scheme within which Commissioners operate will inform an analysis of the scope, content and application of principles of apprehension of bias; s 14 forms part of that statutory scheme. As Cripps CJ (LEC) held in Berk v Woollahra Municipal Council (1992) 76 LGERA 138 at 145, at a time when commissioners were known as assessors, s 14 "is an indication of Parliament's view of the nature of the assessor's function". It does not, however, as contended by the Council, necessarily preclude a conclusion that a decision of Commissioners should be set aside because infected by a reasonable apprehension of bias. In these circumstances, an erroneous decision of a material question of law having been made out, the final decision of the primary judge should be set aside.
Relief in this Court
68 The next question concerns the orders which should be made by this Court. In particular, it is necessary to consider whether it is either open, or appropriate, for this Court to make orders disposing of the proceedings, that is by setting aside the decision of the Commissioners and remitting the matter to the Land and Environment Court for determination of the development application afresh. The answer to that question depends upon the proper construction of s 57 of the LEC Act.
69 Section 57(2) provides that this Court shall:
"(a) remit the matter to the Court for determination by the Court in accordance with the decision of the Supreme Court, or
(b) make such other order in relation to the appeal as seems fit."
70 The scope of this provision has been considered, over the years, in numerous cases, including recently in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 71 NSWLR 230; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138 and HIA Insurance Service Pty Ltd v Kostas [2009] NSWCA 292 at [18]-[22] (Spigelman CJ) and [24] (Allsop P); see also at [118]-[120]. These cases enunciate the following principles: