4 The Applicant argued that Basemount and Castle Constructions do not require that an exclusionary order be made just because findings of fact have been made by the tribunal at first instance which will require reconsideration on the remitter. It is a necessary pre-requisite to a s 56A appeal that a merit determination based on findings of fact will have taken place. The circumstances in which pre-judgment was found in Basemount concerned the denial of natural justice to a council. In Castle Constructions the circumstances were that the commissioner had expressed dislike of the proposal in trenchant and powerful terms. This case is unlike either of those two matters. Further, consistent with the reasoning in Basemount there is no pre-judgment on the real issue.
Finding
5 The principle of pre-judgment giving rise to disqualification arises if there is a reasonable apprehension that the judicial officer "will not decide the case impartially or without prejudice, rather than that she or he will decide the case adversely to one party". Bias by reason of pre-judgment must be "firmly established", Re JRL: ex parte CJL (1986) 161 CLR 342 at 352 per Mason J, referred to in Basemount at [21].
6 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Gleeson CJ, McHugh, Gummow and Hayne JJ) their Honours held at 344 - 345 that the test is whether "a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The same considerations apply to commissioners.
7 Whether an exclusionary remitter order ought be made depends on the particular facts and circumstances of the case, as cited in numerous cases, see for example Basemount per Tobias JA at [25]. At [23] in Basemount Tobias JA stated:
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.