REASONS FOR DECISION
Introduction
1 In the decision under appeal (Building Professionals Board v Ball [2008] NSWADT 154), the Tribunal dismissed a disciplinary application lodged under the Building Professionals Act 2005 by the Appellant, the Building Professionals Board ('the Board'). The application sought a disciplinary finding and consequential orders against the Respondent, Mr Darren Ball, who is an accredited certifier.
2 In the same decision, the Tribunal held, at paragraphs [65] to [71], that the Board should pay Mr Ball's costs of the proceedings.
3 The Board does not dispute the order dismissing its application, but has appealed against the costs order. In substance, its grounds of appeal are (a) that the Tribunal made the costs order without according procedural fairness to the Board and (b) that the applicable criterion of 'special circumstances warranting an award of costs' was not satisfied.
4 In the present decision, we deal only with the first of these grounds and with an associated question that arises if this ground is upheld. Although written submissions dealing with both grounds were filed by the parties before the hearing on 22 October 2008, we directed at the hearing that oral submissions should be confined to the first ground and the question associated with it.
The approach adopted by the Tribunal to resolving the question of costs
5 At the hearing of the disciplinary application on 12 December 2007, the parties' legal representatives made opening addresses to the Tribunal and all their evidence, written and oral, was presented. It was then agreed between the parties' representatives and the Tribunal that since there was not enough time for oral submissions, the parties should make written submissions in accordance with a prescribed timetable.
6 The presiding member, Deputy President Olsson SC, gave instructions as follows: (a) the Board should file and serve submissions in support of its case on or before 18 December 2007; (b) Mr Ball should file and serve his submissions on or before 8 February 2008; and (c) the Board should file and serve submissions in reply on or before 15 February 2008. She commenced these instructions with the words 'I formally direct…'
7 Following a suggestion from Mr T Howard, counsel for Mr Ball, that no further matters remained for consideration, Deputy President Olsson said: -
Well, I'll adjourn the matter then for determination. Perhaps only one thing that I should say and that is if you're going to make an application for costs or want to say something about costs do it in the written submissions.
8 Mr Howard said: 'Thank you, Madam Deputy President.' There followed a very brief exchange between Deputy President Olsson and Mr A Grey, who appeared for the Board. The Tribunal then adjourned.
9 The Tribunal's record of the result of the hearing, contained in the Registry's file for the case, included the following: 'Parties to file written submissions. Appl. 18.12.07. Resp. 8.2.08. App reply 15.2.08.'
10 The Board's submissions, dated 21 December 2007, were filed on 2 January 2008. They did not address the question of costs.
11 Mr Ball then sought and obtained leave from the Tribunal to file and serve his submissions on or before 15 February 2008. The time for filing of the Board's submissions in reply was extended to 22 February 2008.
12 Mr Ball filed his submissions on 18 February 2008. The concluding paragraphs ([64] to [69]) contained an application, with supporting submissions, that if the Tribunal dismissed the Board's disciplinary application against him, it should order the Board to pay his costs on a party and party basis.
13 Having requested an extension of time, the Board filed submissions in reply on 7 March 2008. These submissions, which were prepared by Mr Grey, put forward a number of contentions responding to Mr Ball's submissions, then concluded as follows: -
Costs
The Respondent has indicated that a costs order is sought in the event of a dismissal of the Application.
As the Applicant would have to have regard to any actual findings of the Tribunal for the purpose of making submissions on the "special circumstances" test for costs contained in the Administrative Decisions Tribunal Act, the Applicant seeks to reserve making submissions pending the making of a finding by the Tribunal that may activate the costs power.
14 Without communicating further with the parties or their representatives, the Tribunal delivered its decision in the proceedings (Building Professionals Board v Ball [2008] NSWADT 154) on 27 May 2008. The cover sheet recorded the date on which submissions closed as 7 March 2008.
15 Within the section of its reasons dealing with costs ([65 - 71]), the Tribunal outlined Mr Ball's submissions on the matter and indicated that it regarded them as 'compelling'. It did not refer to the absence of submissions by the Board or to the Board's having sought to 'reserve making submissions' until the Tribunal had made a finding that might 'activate the costs power'.
Relevant legislation
16 It is useful at this stage to set out the legislative provisions relevant to the present decision.
17 Within Chapter 6 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), which is headed 'Procedure of the Tribunal generally', the following provisions bear directly upon the matter of procedural fairness: -
70 Opportunity of parties to make submissions
The Tribunal must ensure that every party to proceedings before the Tribunal is given a reasonable opportunity:
(a) to present the party's case (whether at a hearing or otherwise), and
(b) to make submissions in relation to the issues in the proceedings.
73 Procedure of the Tribunal generally
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice….
(4) The Tribunal is to take such measures as are reasonably practicable: …
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.
18 Under section 35 of the Building Professionals Act, awards of costs in disciplinary proceedings such as these are regulated by section 88 of the ADT Act. Subsection (1) of this section states: -
(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.
19 Within Chapter 7 of the ADT Act, headed 'Appeals', the following provisions are of relevance: -
113 Right to appeal against appealable decisions of the Tribunal
(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal under this Part:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
114 Appeals on questions of law
(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal.
115 Appeals on the merits
(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned.
(3) In determining any such appeal, the Appeal Panel may decide:
(a) to affirm the decision, or
(b) to vary the decision, or
(c) to set aside the decision and make a decision in substitution for the decision it set aside.
The Board's submissions on procedural fairness
20 In the Notice of Appeal and in an Outline of Submissions filed in advance of the hearing, the sole statutory provision explicitly relied on by the Board in contending that it had been denied procedural fairness was section 70(b) of the ADT Act. On 17 October 2008, three working days before the hearing, the Board filed and served a further document headed 'Applicant's Submissions in Reply'. In this document, it referred also to section 73(4)(c). At the hearing, following a suggestion by a member of the Appeal Panel, a third provision, section 73(2), was also relied on.
21 As finally formulated in these two documents and in oral submissions made by its counsel at the hearing, Mr Elliott, the Board's arguments had five major components, as follows.
22 First, by virtue of the three provisions of the ADT Act that have just been mentioned, the Tribunal was obliged at all times to adhere to principles of procedural fairness and natural justice, as developed within the common law. Even apart from these provisions, this obligation existed. In Kioa v West (1985) 159 CLR 550 at 587, Mason J stated that these principles required that a party should be alerted to any critical issue upon which a decision may turn in order that he or she should have an opportunity of addressing it.
23 Secondly, section 73(4)(c) of the ADT Act emphasised that the obligation imposed by section 70(b) was not a 'mere formality'. It did so by requiring that the Tribunal should take such measures as were reasonably practicable to ensure that the parties had 'the fullest opportunity practicable' to be heard or 'otherwise have their submissions considered' in the proceedings.
24 Thirdly, the requirements of procedural fairness did not cease to apply once a hearing had come to an end. Instead, they remained operative until the relevant decision had been made by the Tribunal. This proposition was well illustrated by the High Court's decision in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62. In this case, the Refugee Review Tribunal, at the end of the hearing of an application for review of the respondent's decision refusing to issue a protection visa to the applicant, said that it would put questions regarding 'inconsistencies' in the applicant's evidence to the applicant within the next couple of days and would allow 21 days for the applicant to answer the questions and/or put further information before it. But without following this procedure, the Tribunal delivered a decision adverse to the applicant. The High Court held that this decision should be quashed.
25 In the joint judgment of McHugh, Gummow, Callinan and Heydon JJ, their Honours held at 10 [26 - 27] that the statute governing the Refugee Review Tribunal required it to afford procedural fairness to the applicant. At [27], they continued: -
That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.
26 Fourthly, the stance regarding costs that the Board adopted in its submissions in reply was a reasonable one. There was indeed 'eminent common sense' in its request for submissions on costs to be postponed until after the Tribunal had delivered its decision on the substantive questions in the case. This approach was frequently adopted in courts and tribunals, in order to avoid the extra costs incurred by having to engage in 'shadow boxing'. It was particularly appropriate in the present case because (a) Mr Ball's submissions on costs had raised 'contentious issues' and (b) the determination on costs to be made under section 88 of the ADT Act did not simply call for the exercise of a general discretion, governed by the general principle that 'costs follow the event', but required the Tribunal to be satisfied that a specific criterion - that of 'special circumstances' - had been satisfied.
27 In this context, Mr Elliott did not go so far as to assert that the Tribunal would inevitably be in breach of its duty to abide by the principles of procedural fairness if it required that all submissions regarding entitlement to costs under section 88 be made to it before it reached its substantive decision in the proceedings. His contention was instead that a request by a party for such submissions to be deferred until after the substantive decision was delivered was at least a 'reasonable' one.
28 Fifth and finally, the Board's 'reasonable' request to be permitted to defer its submissions on costs, being analogous to a reasonable request for an adjournment of proceedings, fell within the scope of propositions stated by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 1. At 611 [40], Gaudron and Gummow JJ said (authorities cited are omitted): -
Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.
29 Two further aspects of the Board's submissions should be mentioned here, as they can be briefly disposed of.
30 First, it was argued that Deputy President Olsson's intimation to the parties at the end of the hearing that the matter of costs should be dealt with in their oral submissions was not a formal direction, but merely a 'comment', principally directed at counsel for Mr Ball though also heard by the solicitor representing the Board. We do not agree. As explained above at [6 - 8], the Deputy President first made what she described as a formal direction that the parties' submissions should be filed and served on or before specified dates, then said a short time later '…if you're going to make an application for costs or want to say something about costs do it in the written submissions' (our emphasis). This was clearly intended to be, and could only be understood as, an instruction enlarging the scope of the formal directions already given.
31 Secondly, it was contended that Mr Ball's submissions on costs to the Tribunal had been based in part on a legal contention, which related to a substantive matter at issue in the proceedings but had not been raised during the proceedings. This contention concerned the scope of the right conferred at common law on the grantee of an easement over land to enter the land and do whatever was necessary to make the easement suitable for the purpose that it was designed to serve. But having been referred by Mr Howard to relevant parts of the evidence and the submissions in the proceedings, we do not consider that this issue was left out of account. Even if it had been, the Board was well placed to deal with it in its submissions in reply and/or to argue that in the particular circumstances it was not a relevant consideration in determining the question of costs.
Mr Ball's submissions on procedural fairness
32 A preliminary submission made by Mr Howard was that because the claim of procedural unfairness made by the Board in its Notice of Appeal and its first set of submissions was based only on section 70(b) of the ADT Act (see [20] above), the Board should not be permitted to rely also on section 73(4)(c). But as we pointed out to Mr Howard, the Board referred to the latter provision in its document headed 'Applicant's Submissions in Reply', which it filed and served three working days before the hearing. In these circumstances, Mr Ball could not be said to suffer prejudice through the Board being permitted to rely on section 73(4)(c). In reaching our conclusions on this ground of appeal, we have accordingly taken this provision into account.
33 Mr Howard's principal argument was that the opportunity given by Deputy President Olsson to the Board at the conclusion of the hearing to address the matter of costs in their written submissions was undoubtedly a 'reasonable' opportunity and therefore satisfied the requirements of procedural fairness, both at common law and under the relevant provisions of the ADT Act. Furthermore, on receiving Mr Ball's submissions to the Tribunal on or soon after 18 February 2008, the Board had become aware that, in accordance with the Deputy President's instructions, Mr Ball had made an application for costs and had advanced arguments in support of that application. The Board had had an ample opportunity to respond to those submissions. In fact, having sought an extension of the stipulated period of seven days in which to file its submissions in reply, it filed and served those submissions on 7 March 2008, more than two weeks after receiving Mr Ball's submissions.
34 Mr Howard pointed that the Board, in its submissions in reply, could readily have included all the arguments that it wished to make in response to Mr Ball's claim for costs. Alternatively, if it had wanted to press its contention that submissions on costs should not be called for until after the Tribunal's substantive decision, it could have applied for the case to be re-listed for argument on this matter.
35 Mr Howard described the Board's decision to 'reserve making submissions' on costs both as conduct in breach of the Tribunal's explicit direction and as a 'forensic choice', made with a view to gaining a forensic advantage over its opponent. The Board wanted, he said, to be in the position of knowing the Tribunal's decision on the substantive aspects of the case before formulating its arguments on costs.
36 In seeking to rebut the Board's contention (see [26] above) that reserving its position on costs was an entirely reasonable step taken in order to avoid 'shadow boxing', Mr Howard relied on Tribunal decisions under section 88 of the ADT Act to the effect that, even though a finding as to whether 'special circumstances' exist must be made, it is often preferable, and clearly not unreasonable, for the Tribunal to direct that submissions on costs should accompany the submissions made on substantive questions.
37 One such decision, which we mentioned during the hearing, is Prasad & anor v Fairfield City Council (RLD) [2002] NSWADTAP 2. At [33 - 34], in dealing with a claim made by the successful parties to Tribunal proceedings that costs should have been awarded in their favour, the Appeal Panel said: -
33 In traditional court practice it is the case that the costs issue tends to be dealt with as a separate matter once the principal decision is delivered. In the Tribunal it is common for it to be addressed as part of the principal case with no further opportunity being given. In this case it was clear that costs was a very live issue for [the successful parties] and they wanted it addressed. They had the opportunity to make submissions as part of their closing submissions on liability, and did so. The Council replied to those submissions.
34 In the circumstances we do not consider that there was an absence of procedural fairness.
38 Mr Howard also relied on the following passage in the judgment of Hedigan J in Wilson v Phoenix Contracting Services & Anor (1998) 14 VAR 52; [1998] VSC 81 (a case also mentioned by Mr Elliott): -
For my own part, I would regard it as a practice to be preferred as a general rule, that the parties should be heard on costs after the delivery of the decision and reasons, rather than before. Doubtless, the Tribunal in this case, after a nine-day hearing, was not anxious to add to the costs of the parties by inviting later and further submissions orally or in writing, particularly in a case in which, as it ultimately appears, it had what appears to be a strong view that the complainant's evidence and that of his witnesses was absolutely unacceptable. A practical approach to the disposition of these matters is to be encouraged rather than discouraged. It was a matter for the Tribunal to decide whether or not in exercising its discretion as to costs it was just as well aided by hearing the parties before it embarked upon the decision as to the facts of the case as afterwards.
39 Finally, Mr Howard sought to distinguish a case relied on by the Board, Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 (see [24 - 25] above). He submitted that in that case the Refugee Review Tribunal, at the conclusion of the hearing, had formed a belief that more evidence was required on a significant question in order to complete the review properly. Procedural fairness therefore required that further steps be taken so that this question, as the High Court said at [31], 'could be ironed out one way or another'. By contrast, there was no suggestion in the present case that the Tribunal considered the process of arriving at a conclusion on costs was incomplete before it delivered its decision.
Our conclusions on the question of procedural fairness
40 Our conclusions with regard to these competing contentions can be shortly stated.
41 In the first place, we agree with Mr Howard's submission that the opportunity to make submissions on costs that the Tribunal provided at the end of the hearing to the Board, as indeed to Mr Ball also, was a 'reasonable' one. At this stage, the Tribunal complied with its specific obligations under sections 70(b) and 73(4)(c) of the ADT Act, as well with its more broadly expressed obligation under section 73(2) to observe 'the rules of natural justice'. The Appeal Panel's ruling in Prasad & anor v Fairfield City Council (RLD) [2002] NSWADTAP 2 that we have quoted above at [37] makes it clear that the parties to Tribunal proceedings have no general right to insist that the making of submissions on costs under section 88 of the ADT Act be deferred until after the Tribunal has delivered its substantive decisions.
42 This is not to say that the Tribunal might not determine, in a particular case, that costs submissions should be deferred in this way. As the Appeal Panel in another retail leases case, Alessa Pty Ltd v Total & Universal Pty Ltd (RLD) [2002] NSWADTAP 16, pointed out at [37], a 'hitherto undisclosed Calderbank letter' (i.e., a 'without prejudice' letter offering to settle the dispute between the parties by way of compromise) might come to light after the Tribunal's decision and constitute an aspect of a party's claim for costs. Usually, such a letter could not properly be disclosed at an earlier stage.
43 When the Board indicated in its submissions in reply that it sought to 'reserve making submissions', it did, as Mr Howard maintained, act in breach of the Tribunal's directions. But it also communicated a request (albeit by implication only and somewhat briefly) that the Tribunal should vary those directions by permitting it to defer advancing its arguments on costs. The Tribunal could have responded to this request in one of two ways, both of which would have allowed the Board to put forward its arguments on costs. It could have rejected the request for deferral, while at the same time giving the Board a further short period of time (such as seven days) to address the matter of costs in a supplementary submission. Alternatively, it could have granted the request, in which event it would (in our opinion) be obliged to redress any forensic disadvantage thereby inflicted on Mr Ball by permitting him also to file supplementary submissions.
44 The Tribunal in fact adopted neither of these procedures. Instead, it reached a conclusion regarding costs while aware that the Board had neither filed any submissions on the matter nor indicated, either expressly or by implication, that there was no opposition to Mr Ball's submissions.
45 In our judgment, the Tribunal, by proceeding in this way, failed to comply with its obligation under section 73(4)(c) of the ADT Act to 'to take such measures as are reasonably practicable … to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings'. As we understand this provision, the obligation that it imposes is stricter than that imposed by section 70(b). What must be afforded to the parties is not just a 'reasonable opportunity', but the 'fullest opportunity practicable'. We appreciate that the Tribunal's duty under section 73(4)(c) is confined to taking measures that are 'reasonably practicable'. But in our opinion, both of the courses of action that we outlined above (at [43]) were 'reasonably practicable'. They would not have given rise to significant extra costs or a substantial further delay in resolving the proceedings.
46 This conclusion, we believe, derives indirect support from the passage that we have quoted above (at [28]) from the judgment of Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 1. We refer particularly to their Honours' statement that 'a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness'. It was open to the Tribunal, as we have said, either to reject or accept the Board's request to reserve its position on costs. Both responses would occasion only a short delay in the completion of the proceedings. In a loose sense, therefore, the making of this request was akin to requesting an adjournment. Since, for reasons outlined above at [42], the course of action requested was one that the Tribunal may on occasions consider preferable, the Board's action in making this request could not be characterised as unreasonable.
47 This failure by the Tribunal to accord procedural fairness to the Board as required by section 73(4)(c) (if not also by section 73(2), by virtue of its reference to 'the rules of natural justice') constitutes an error of law: see e.g. Murtagh & Anor v Taylor (EOD) [2005] NSWADTAP 18 at [57 - 59]. It follows, in our judgment, that the Tribunal's order (Order 2) that the Board should pay Mr Ball's costs must be set aside under section 114(2)(a) of the ADT Act.
The future conduct of this appeal
48 The conclusion that we have just reached brings us to what we described above (at [4]) as an 'associated question'. This question is as follows: what order or orders should we now make regarding the future conduct of these appeal proceedings?
49 Pursuant to sections 113, 114 and 115 of the ADT Act (see above at [19]), we may make one of three determinations as to how the Tribunal should be constituted in order to resolve the questions remaining in the appeal. We may remit the case to the Tribunal as originally constituted (see section 114 (2)(b)); we may remit it to the Tribunal as 'similarly constituted' (see again section 114 (2)(b)); or we may ourselves dispose of the appeal, either by making an order in substitution for that initially made by the Tribunal (see section 114 (2)(c)) or, after granting leave under section 113(2)(b) for the appeal to extend to the merits, by deciding under section 115 'what the correct and preferable decision is…'
50 The parties' submissions. In written and oral submissions put forward at the hearing on 22 October 2008, the parties were at odds regarding which of these courses of action should be adopted.
51 Mr Elliott submitted that we should not remit the case to the Tribunal as originally constituted but should choose one of the two alternative approaches (he made no submission as to which of these two approaches was preferable). The reason that he advanced for ruling out the option of remitting to the Tribunal as originally constituted was that since it had made a decision on the very matter being remitted - i.e. whether the Board should pay Mr Ball's costs pursuant to section 88 of the ADT Act - there would be a reasonable apprehension that it had prejudged the matter. The Board, he said, was entitled to a re-determination without any appearance of pre-judgment.
52 In support of this submission, Mr Elliott relied on the Court of Appeal's decision in Baulkham Hills Shire Council v Basemount Pty Ltd & Anor [2003] NSWCA 189. This case came to the Court on appeal from the Land and Environment Court. In the latter Court, the Chief Judge, Pearlman J, had set aside on appeal a decision of a Commissioner (Commissioner Murrell) and remitted the proceedings for re-hearing and re-determination within the Court conformably with her reasons for judgment. The ground on which Pearlman J had allowed the appeal from Commissioner Murrell was, as the respondent conceded, a denial of procedural fairness. In the Court of Appeal, the relevant ground of appeal for present purposes was that Pearlman J had erred in declining to order that the case should be remitted to a Commissioner other than Commissioner Murrell. The appellant maintained that if the case were remitted to Commissioner Murrell, there would be a reasonable apprehension of pre-judgment.
53 The Court of Appeal allowed the appeal on this ground and ordered that the case should be remitted to a Commissioner other than Commissioner Murrell. The following passage in the judgment of Tobias JA (with whom Handley and IPP JJA agreed) explained the Court's reasoning: -
[19] The nature of the pre-judgment principle was explained by Mahoney JA (with whom Meagher JA agreed) in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. At 435E his Honour observed:
"Pre-judgment refers more to the fact or suggested likelihood that, because he has once reached a conclusion upon an issue of fact or credit one way, a judge will subsequently decide the same issue in the same way."
At 437F his Honour continued:
"What is here in question is pre-judgment. That involves that the judge must decide the case before him upon the basis of the material placed before him in the case and by his appreciation of that evidence, including the witnesses and the evidence they have given, in the instant case. One of the forms of pre-judgment - there are, of course, others - is determining a matter in a particular way because, in another case, the judge has decided the same or a similar matter in the same way."
[20] Mahoney JA then proceeded to discuss in more detail the High Court authorities dealing with the effect of previous decisions of fact or of credibility and, at 442D, concluded in the following terms:
"With only such reservations as were indicated in, for example, the Livesey case (at 299-300) it is, in my opinion, proper to approach a question of this kind upon the basis that, where decisions of fact or credibility have been made, the pre-judgment principle will apply unless it appears that there is a 'necessity' for the judge to sit or that the case is 'an extraordinary case' or one which involves 'special circumstances'."
In the present case it was not suggested that any of those exceptions applied.
[21] It is true that in Spedley Securities Mahoney JA was speaking of a situation where a judge sits to hear a case at first instance after he or she has, in a previous case, expressed clear views either upon a question of fact which constitutes a live and significant issue in the subsequent case or upon the credit of a witness whose evidence is of significance on such a question of fact. In the present case and in one sense, Commissioner Murrell has not expressed clear views upon a question of fact "in another case" being one disassociated with that which she would be required to re-hear. However, in my opinion, the present case is in fact a fortiori. A clearer case of pre-judgment could not be envisaged than where a judicial officer has determined in a considered judgment questions of fact with respect to the very same issues, which he or she is then required to re-determine on a re-hearing of the same case. In fairness, it should be said that senior counsel for the respondents did not suggest to the contrary. What he did do was to refer the Court to the following passage from the judgment of Mason J (as he then was) in re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:
"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 he will decide the case adversely to one party. There may be many situations in which previous decisions of the 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 pre-judgment and this must be 'firmly established'."
[22] In my opinion the present case does not fall within the above principle: it is not one whereby the reasonable apprehension is that Commissioner Murrell will decide the case adversely to the Council. Rather, it is one in which there is a reasonable apprehension that she will not decide the case impartially in the sense that she has (understandably) pre-judged the very issues of fact in respect of the very same development application which she would be required, if she was to re-hear the matter, to now determine afresh….
[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 section 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 section 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.
[24] In the present case the error of law, the denial of natural justice to the Council was not exclusively collateral to the merit issues as it involved a question of traffic generation and visual impact. However, it might fairly be said that to impose the impugned condition without notice, evidence or argument and contrary to the respondents' disclaimer, involved pre-judgment of quite a high order necessitating remitter to a bench differently constituted. In my opinion, the primary judge erred in law in declining to so order.
54 Mr Elliott argued further that the Tribunal's costs decision in the present case was based implicitly on a finding that because the case mounted by the Board against Mr Ball was unmeritorious, the Board had acted unreasonably in instituting the proceedings. This, he said, was evidently the basis of the Tribunal's conclusion that there were 'special circumstances warranting an award of costs' against the Board under section 88 of the ADT Act. If the Tribunal, as originally constituted, was asked to re-determine the same matter, being a matter of this nature, there would without doubt be a reasonable apprehension of pre-judgment of pre-judgment of a matter of the kind described in paragraph [22] of Tobias JA's judgment.
55 Mr Howard argued that the appropriate course for us was to remit the question of costs to the Tribunal as originally constituted. He maintained that if for any reason this question had to be redetermined, a close understanding of the factual circumstances relating to the conduct of Mr Ball on which the disciplinary application was based, and to other conduct of both parties, would be required. Only the Tribunal as originally constituted possessed such an understanding.
56 In Mr Howard's submission, the case fell within the range of circumstances outlined in paragraph [23] of Tobias JA's judgment in Baulkham Hills Shire Council v Basemount Pty Ltd. If the Tribunal had made an error of law as alleged, it was not such an error as precluded it from making an impartial decision on the question of costs if the matter were remitted to it.
57 Mr Howard drew our attention also to three cases, of which the following features are relevant to our decision.
58 In Telstra Corporation Ltd v Barrow (1994) 19 AAR 523, the Federal Court, having set aside on appeal a costs order of the Administrative Appeals Tribunal on grounds of procedural unfairness, held (at 541) that the case should be remitted to the Tribunal as originally constituted, if this was 'reasonably possible'. Mr Howard conceded, however, that the issue of prejudgment appeared not to have been raised in the appeal.
59 In Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164, the Court of Appeal followed its decision in Baulkham Hills Shire Council v Basemount Pty Ltd, in circumstances where the original decision-maker (again a Commissioner of the Land and Environment Court) had expressed strong views regarding the merits of the matter sought to be remitted to him.
60 In McGovern v Ku-ring-gai Council [2008] NSWCA 209, the Court of Appeal held inter alia that in the context of a 'multi-member elected decision-making body', such as a local authority, there was no requirement that each of the decision-makers kept an open mind until every decision-maker was prepared to make a decision. Accordingly, the fact that two out of nine councillors charged with deciding whether to approve a development application made up their minds before the decision was made and tried hard to persuade their fellow-councillors to agree with them did not of itself provide grounds for a finding of apprehended bias.
61 Like Mr Elliott, Mr Howard made no submission as to which of the two approaches alternative to that for which he argued was the preferable approach.
62 Discussion and conclusions. In resolving this matter, we have taken into consideration various decisions within the Tribunal that were not cited to us. They provide useful additional guidance because they relate directly to the statutory provisions under which we must make our decision: i.e. sections 113 - 115 of the ADT Act. In chronological order, they are as follows: Z v Director General, Department of Transport (No. 2) (GD) [2001] NSWADTAP 18; Miriani v Commissioner of Fair Trading, Office of Fair Trading (GD) [2005] NSWADTAP 73; Miriani v Commissioner of Fair Trading, Office of Fair Trading [2006] NSWADT 52; WL v Randwick City Council [2008] NSWADT 87 and WL v Randwick City Council (No 2) (GD) [2008] NSWADT 52.
63 We are persuaded by Mr Elliott's contention that the primary issue in dispute between the parties is governed by the Court of Appeal's decision in Baulkham Hills Shire Council v Basemount Pty Ltd & Anor [2003] NSWCA 189. The question of costs could only be remitted for re-determination by the Tribunal as originally constituted if we were prepared to hold that the following statement by Tobias JA at [22] was not applicable to it: -
A clearer case of pre-judgment could not be envisaged than where a judicial officer has determined in a considered judgment questions of fact with respect to the very same issues which he or she is then required to re-determine on a re-hearing of the same case.
64 In ruling that we must treat this passage as governing the present situation, we take careful account of how the Tribunal reached its decision that there were 'special circumstances warranting an award of costs' under section 88 of the ADT Act. As Mr Elliott submitted, the basis of this decision was that there were evident weaknesses, of which the Board should have been aware before instituting proceedings, in the case that it mounted against Mr Ball and that for this reason the Board acted unreasonably in bringing the matter to the Tribunal. Although such a decision did not, it would seem, involve making findings on questions of disputed fact, it did involve a value-judgment - that is, as to the reasonableness of the Board's conduct. The concerns regarding pre-judgment that Tobias JA expressed in Baulkham Hills Shire Council v Basemount Pty Ltd appear to us to be just as significant when the decision in question involves a broad value-judgment as when it involves making findings on questions of disputed fact.
65 As we understand other cases, such as Telstra Corporation Ltd v Barrow (1994) 19 AAR 523 and Miriani v Commissioner of Fair Trading, Office of Fair Trading (GD) [2005] NSWADTAP 73, where remitter to the original decision-maker has been ordered in comparable circumstances, the question whether an express claim of pre-judgment by this decision-maker has been made is significant. This did not occur in the two cases just mentioned, but has occurred in the present case.
66 While we acknowledge that there would be practical advantages in asking the Tribunal members who ruled on the substantive merits of the Board's application to decide (after taking the Board's submissions into account) whether it should be liable for costs, we consider that the overriding concern to avoid an appearance of pre-judgment must, in the light of authorities such as Baulkham Hills Shire Council v Basemount Pty Ltd, be treated as paramount.
67 As between remitting the matter of costs to the Tribunal differently constituted and retaining it for decision by us, we favour the latter approach, for two reasons in particular. They are as follows.
68 First, the Board in its appeal has claimed that the Tribunal's approach to determining 'special circumstances' was attended with error. We therefore have before us a ground of appeal that we have not addressed at all. It seems appropriate to us that we should do so, rather than leaving it as a potential ground of appeal at a later stage.
69 Secondly, although the Board has indicated in its submissions that it intends to apply for leave to adduce further material in the appeal, this material appears to be (to use a crude label) 'quasi-legal' rather than truly evidentiary. It constitutes the text of an accreditation scheme and ministerial guidelines relating to this scheme. This distinguishes the present case from an Appeal Panel decision that we have found particularly useful in the present context, namely, Z v Director General, Department of Transport (No. 2) (GD) [2001] NSWADTAP 18.
70 In that case, the respondent to the appeal indicated that it wished to adduce fresh material if, as the appellant wished, leave was granted for the appeal to extend to the merits. At [9], the Appeal Panel said: -
Had it been the case that there was no likelihood that any fresh material would be introduced, the Appeal Panel would have been inclined to have proceeded to dispose of the matter, as the relevant material is not great in volume or complexity and finality would be achieved. However, it is not desirable that the Appeal Panel be called on to consider fresh evidence and possibly make additional findings beyond those already made by the Tribunal.
71 In deciding that we should retain this appeal for determination by us, rather than remitting it to the Tribunal under section 114(2)(b), we do not reach any conclusion as to whether our own future disposition of it should remain within the confines of section 114 or should involve extension to the merits under section 113(2)(b) and a consequent decision under section 115. That question remains open for determination.
72 As already indicated, our primary ruling in this decision is that Order 2 of the Tribunal made on 27 May 2008 must be set aside.
73 In order to determine the future progress of this appeal before us, the matter is set down for further directions at 9.30 a.m. on Thursday 13 November 2008. At that directions hearing, the principal question to be addressed will be the time and date of a further hearing by the Appeal Panel. Those attending the directions hearing on behalf of the parties should be in a position to indicate the days on which the parties' representatives would be available for such a hearing.