Owners Corporation PS419696X v Goh & Ors [2021] VSC 126

BUILDING - Building Appeals Board - Jurisdiction - Statutory framework - Sessional membership - Pecuniary interest provisions - Obligation of members - Duty of disclosure - Possible conflict between Board membership and activities as building practitioners - Building Act 1993 (Vic) ss 1, 111-113, 117, 166, sch 3 cls 1, 3(1), 6, 8, 15, 16(1), 19.

For the Plaintiff and the First to Third Defendants in the first proceeding

For the Plaintiffs and the First Defendant in the second proceeding

Aitken Partners Pty Ltd and Fairweather Legal Pty Ltd

For the City of Melbourne (Municipal Building Surveyor) in the first proceeding

For the City of Melbourne (Municipal Building Surveyor) and the Melbourne City Council in the second proceeding

1 The plaintiffs seek judicial review of a decision of the Building Appeals Board of Victoria ('Board') under ord 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ('Rules') to dismiss their application to exclude the expert evidence of Dr J Barnett in BAB case no 450465 ('appeal').[1] They seek an order restraining the Board from considering a written report by Dr Barnett and any evidence he may give.

2 The plaintiff in the first proceeding is the owners corporation ('OC') of a residential building at 581-589 La Trobe Street, Melbourne ('building'). The plaintiffs in the second proceeding are the owners of 54 apartments within the building ('Goh parties').

3 The building was constructed in about 1999 and consists of 138 residential units, 80 car parking spaces, and 18 storage lots with a reception area and restaurant on the ground floor.

4 By a building order dated 23 November 2017, the municipal building surveyor of the City of Melbourne ('building surveyor') required the owners to carry out substantial building works including the installation of smoke detectors, a fire sprinkler and intercom system, fire isolated stairways and re-entries and other works said to cost about $2.5 million. The building order ('building order') was made under s 106 of the Building Act 1993 ('Act'). The plaintiffs appealed to the Board against the building order.

5 On 26 September 2019, the building surveyor served on the plaintiffs an expert report written by Dr Barnett ('report'). Dr Barnett is a highly qualified and licensed professional engineer with many years of experience in fire safety engineering. He had been a sessional member of the Board since November 2015. The plaintiffs objected to the admissibility of the report and sought an order from the Board restraining the building surveyor from calling Dr Barnett as a witness.

6 On 2 October 2019, the Board constituted by its chairperson, Eric Riegler, made orders for the filing of written submissions concerning the objection. Following a request by the Goh parties for an oral hearing, a directions hearing was listed for 12 November 2019. On 6 November 2019, Dr Barnett notified the Deputy Registrar of the Board of his resignation as a member of the Board. The Chairperson was advised of Dr Barnett's resignation on the following day. In his letter of resignation, Dr Barnett referred to his increasing workload and the nature of his private practice, which made it difficult for him to dedicate sufficient time to membership of the Board. Dr Barnett provided a letter of resignation to the Minister on 18 November 2019.[2]

7 The directions hearing was postponed to 19 November 2019, and the objection was heard by the chairperson on that date. The Board's decision was published on 11 December 2019.

(a) to regulate building work and building standards; and

...

(c) to provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes;...[3]

9 Part 8 of the Act is concerned with the enforcement of safety and building standards. Division 2 of pt 8 provides for building surveyors to issue building notices where they are of the opinion that certain circumstances exist.[4] Building orders may be made where the time allowed by a building notice for making representations has expired.[5] Building orders may direct an owner to carry out building work or to stop building work.[6] A building order remains in force until it is complied with or cancelled by the building surveyor or the Board.[7]

10 In the second reading speech for the Building Bill 1993, the Minister for Planning described the Board as a 'one-stop-shop approach to dispute resolution' and said:

It is proposed to enhance the existing functions of the building referees boards by establishing a new Building Appeals Board to be responsible for all appeal matters under the new legislation. The non-legalistic approach of the former building referees board will be, and must be continued.[8]

11 The Board is a specialist expert tribunal established under s 166 of the Act, which provides:

(1) There is established by this Act a Board to be called the Building Appeals Board.

(2) The members of the [Board] are to be appointed by the Governor in Council on the Minister's recommendation.

(3) The [Board] is to consist of -

(a) a person appointed to be chairperson of the Board; and

(b) a person who, in the Minister's opinion, has experience in the building industry or in matters related to that industry, who is to be appointed deputy chairperson of the Board; and

(ba) at least one person who is an Australian lawyer of at least 5 years' standing; and

(bb) at least one person who, in the Minister's opinion, is able to represent the interests of users of the services of building practitioners; and

(c) as many other persons as the Minister considers necessary for the purposes of this Act, and who, in the Minister's opinion, have experience in the building industry or in matters related to that industry.

...

(6) Schedule 3 has effect with respect to the membership and procedure of the [Board].

12 The Board and its jurisdiction are the subject of pt 10 of the Act. The owner of a building may appeal against the imposition of a building order or any condition in it.[9] An appeal to the Board is in the nature of a re-hearing.[10] The Board must consider and determine an appeal, and may affirm, quash, vary or set aside the decision under appeal.[11] It may substitute its own decision, or remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it gives.[12] In addition to its other powers, it has all of the powers of the decision-maker in relation to the decision under review.[13] It has power to make any ancillary or incidental order that it considers necessary to give effect to its determination,[14] or any order that it considers appropriate in the circumstances.[15]

13 Part 1 of sch 3 contains additional provisions dealing with membership of the Board. Clause 1 deals with a member's term of appointment:

(1) Subject to this clause, a member of a Board holds office for a period, not exceeding 3 years, specified in the instrument of his or her appointment.

(2) A member of a Board is eligible for re‑appointment.

(3) The instrument of appointment of a member of a Board may specify terms and conditions of appointment not inconsistent with this Act or the regulations.

(4) A member of a Board appointed by the Minister can be removed from office by the Minister.

14 Clause 3(1) deals with resignation from the Board:

A member of a Board may resign from membership by letter signed by the member and delivered to the Minister.

15 Clause 6 requires the disclosure of pecuniary interests:

(1) If a member of a Board has a direct or an indirect pecuniary interest in a matter which is about to be or is being considered by the Board, the member must as soon as possible after the relevant facts come to his or her knowledge disclose the nature of the interests -

(2) A member who has disclosed a pecuniary interest in a matter under subclause (1) must not be present while the Board is considering or deciding the matter and must not take part or further part in that consideration or decision.

(3) An act or decision of a Board is not invalid merely because a member contravenes subclause (1) or (2).

...

16 Part 2 of sch 3 is concerned with the general procedure of the Board. Clause 8 provides for the Board to sit in panels determined by the chairperson:

(1) For the purposes of performing any of its functions, the [Board] may be constituted by one or more panels of its members.

(2) The chairperson of the [Board] may determine which and how many of its members are to constitute a panel and what proceedings or classes of proceedings are to be allocated to each panel.

...

17 Part 3 of sch 3 deals with the conduct of proceedings before the Board. Clause 15(1) provides:

(1) The [Board] must give the parties to the proceeding reasonable opportunity to make -

(a) oral submissions at a hearing; or

(b) written submissions in the case of a proceeding that is not a hearing.

(a) may proceed by accepting written submissions or by conducting a hearing; and

(b) may inform itself in any manner it thinks fit; and

(c) is bound by the rules of natural justice; and

(d) is not bound by any rule or practice as to evidence; and

...

(f) must proceed with as little formality and technicality and with as much expedition as the requirements of this Act and the regulations and the proper consideration of the matter before it permit; and

...

(j) may seek the independent advice of a person to assist it in dealing with the proceeding.

(4) A party to a proceeding may appear at a hearing before the [Board] or do anything else in relation to a proceeding before that Board either personally or through an agent.

(5) The Board must disclose to each party to a proceeding any advice it receives under subclause (3)(j) and give each party a reasonable opportunity to make submissions about that advice before determining the proceeding.

18 Clause 16(1) provides that a determination of the Board must be in writing.

19 Clause 19 provides that a determination of the Board may be enforced as if it were a judgment or order of a court of competent jurisdiction.

20 The parties referred in their submissions to the restrictions imposed by statutory provisions dealing with the conduct of members or former members of the Victorian Civil and Administrative Tribunal ('Tribunal') seeking to appear as an advocate or act as an expert witness in a proceeding before that tribunal.

21 Section 25A of the Victorian Civil and Administrative Tribunal Act 1988 (Vic) ('VCAT Act') provides:

If the rules provide for proceedings to be entered in or transferred to lists of the Tribunal and for members to be assigned to those lists -

(a) a member must not represent a party in any proceeding that has been entered in or transferred to a list to which the member has been assigned;

(b) for a period of 2 years after a member ceases to be a member, he or she must not represent a party in any proceeding that has been entered in or transferred to a list to which the former member was assigned, except with the approval of the President.

(1) If the rules provide for proceedings to be entered in or transferred to lists of the Tribunal and for members to be assigned to those lists -

(a) a member must not appear as an expert witness in any proceeding that has been entered into or transferred to a list to which the member has been assigned, except with the approval of the President; and

(b) for a period of 2 years after a member ceases to be a member, the former member must not appear as an expert witness in any proceeding that has been entered into or transferred to a list to which the former member was assigned, except with the approval of the President.

(2) This section is subject to any other provision of this Act or an enabling enactment that allows a member or former member to appear as a witness.

23 Valuer members of the Tribunal are excepted from these restrictions by s 30 of the Valuation of Land Act 1960 (Vic), which provides:

A member of VCAT is not disqualified from appearing as a witness in any hearing under this Part where he or she is not sitting as a member of VCAT.

24 Barristers who were former judges or tribunal members must refuse briefs to appear before a court of which the barrister was a judge or a tribunal of which the barrister was a member unless specified time limits have passed.

25 Rule 101A of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) provides:

(2) A barrister must refuse to accept or retain a brief or instructions to appear before a court if:

(i) of which the barrister is or was formerly a judge, or

(ii) from which appeals lie to a court of which the barrister is or was formerly a judge, and

(b) the appearance would occur less than 5 years after the barrister ceased to be a judge of the court.

(3) A barrister must refuse to accept or retain a brief or instructions to appear before a tribunal that does not sit in divisions or lists of matters to which its members are assigned if:

(a) the barrister is a full time, part time or sessional member of the tribunal, or

(b) the appearance would occur less than 2 years after the barrister ceased to be a member of the tribunal.

(4) A barrister must refuse to accept or retain a brief or instructions to appear before a tribunal that sits in divisions or lists of matters to which its members are assigned if:

(a) the brief is to appear in a proceeding in a division or list to which the barrister is assigned as a member of the tribunal, or

(b) the brief is to appear in a proceeding in a division or list to which the barrister was assigned and the appearance would occur less than 2 years after the barrister ceased to be assigned to the division or list.

26 None of these provisions apply to the Board or to Dr Barnett.

27 The Board proceeded on the basis that the only association between the members of the Board who would ultimately hear the matter and Dr Barnett was that of past commonality of membership of the Board. If the association between a member of the Board and Dr Barnett extended to something more, the Board held that it was open to any party to apply for the recusal of that member.[16] Such an application would be made to the panel ultimately appointed to hear the appeal.

28 Until 18 November 2019, Dr Barnett was a sessional member of the Board.[17] Principally, he conducted his own private practice, which included the preparation of fire engineering reports and appearing as an expert witness in curial proceedings. His membership of the Board was secondary to his private practice.[18]

29 The Board summarised the plaintiffs' submissions in these terms:

(a) there was an association between Dr Barnett and all Board members by virtue of his former membership of the Board;

(b) the association gave rise to an apprehension that the Board might decide the proceeding other than on its legal or factual merits for fear that a determination contrary to Dr Barnett's opinion might adversely impact on:

(i) the public's confidence in the competence of Board members;

(ii) the Board's reputation as an expert merits review body; and

(c) Dr Barnett's competency and reliability would be assumed by members of the Board because of his association with it.

(a) there was a form of association between all members of the Board;

(b) the membership of the Board differed from that of courts and tribunals;

(c) the panels that hear and determine matters before the Board will almost always include one or more Board members who are building practitioners;

(d) the matters considered by the Board usually comprise complex technical issues;

(e) Board members are selected to sit on a panel by virtue of their experience and expertise in the building industry; and

(f) all members of the Board, apart from the chairperson, are sessional members, who give up their time in private practice or public office to sit on a panel hearing applications made to the Board.[19]

(a) in many cases, membership of the Board results in members having to compromise their private practice to make time to hear and determine matters before the Board;

(b) this could result in a financial sacrifice as the remuneration paid by the Board rarely equated to the hourly rates earned in private practice;

(c) it was unavoidable that members of the Board might sometimes appear as the parties to an application before the Board - for example, where the decision of a member practising as a building surveyor was the subject of an appeal to the Board;[20]

(d) the Board depended on members having current experience in various disciplines within the building industry. That experience may result in a Board member's professional work being scrutinised by the Board; and

(e) the anomaly was unavoidable if the Board was to remain as a specialist Tribunal made up of members from the profession.[21]

32 The Board concluded that any assessment as to whether there is an apprehension of bias must be considered in the context of the Board's operations.[22]

Connection between association and feared deviation

33 The Board then considered whether there was a connection between the association of past commonality of membership and the feared deviation from the course of deciding the case on its merits.

34 After considering the Board's unique characteristics, the Board held that past commonality of membership alone did not give rise to an apprehension of bias for the following reasons:

(a) The number of fire engineers who provide expert evidence in curial proceedings represented a small fraternity. It was not uncommon for an expert fire engineer to be known to one or more members of the panel hearing the matter, especially where constituted by one or more fire engineers.

(b) The Board was different from a court as its function was to determine technical issues. It depended heavily on the specialist knowledge of members in evaluating expert evidence presented by the parties.

(c) Board members have a deep understanding of the technical issues before the Board. This gave them the ability to technically scrutinise expert evidence from all sources. It was reasonable to expect that a member of the Board would not be swayed by the fact that the party presenting the evidence was a previous member of the Board.

(d) By the time the appeal was listed, three months would have elapsed since Dr Barnett's resignation. The time gap between Dr Barnett's membership of the Board and the date when he would give evidence weakened the argument that his former membership might cause a loss of independence or impartiality by the Board.

(e) The association was not one between a sitting member of the Board and a lay witness giving factual evidence where the witness's credibility was likely to be impugned if his or her evidence was not accepted. Expert opinions often differed, and the acceptance of one opinion over another did not mean that the reputation of the expert whose opinion was not accepted was impugned.[23]

35 The Board concluded that a fair minded lay observer would not reasonably apprehend that the sitting panel would be overborne by a desire to maintain the reputation and competence of the Board or of a former member or preserve institutional comity so as to favour one opinion over another especially where there were several technical solutions proffered to resolve a technical issue.[24]

36 Finally, the chairperson referred to the onerous burden carried by the Board in ensuring that its determinations do not compromise the safety of building occupants and members of the public. The risk of not bringing an impartial mind to the matters before the Board could be catastrophic.[25]

37 If an association with the Board resulted in a reasonable apprehension that the panel hearing the proceeding might not bring an impartial mind to the resolution of the appeal, the Board said that all members of the Board would be affected by the same perceived bias.[26] The requirements of natural justice must give way to the doctrine of necessity[27] to ensure that the Board would not be left impotent.[28]

Denial of natural justice to the building surveyor

38 The Board held that the exclusion of Dr Barnett's evidence would be a denial of natural justice to the building surveyor as it would deprive the building surveyor of calling the expert of his choice. Natural justice would not be served by restraining one party from calling the expert of its choice even if bias were apprehended.[29]

39 Moreover, the submission that the building surveyor was at liberty to retain another fire expert did not remedy the denial of natural justice. Dr Barnett might hold an opinion not shared by contemporaries willing to appear as expert witnesses in the proceeding. In that circumstance, the end result is that the building surveyor would be unable to adduce that opinion into evidence at all.

40 The Board determined that natural justice did not require the exclusion of Dr Barnett's evidence and dismissed the application to exclude his evidence. The Board also determined that commonality of past membership did not give rise to an apprehension of bias. The fair minded lay observer would not have a reasonable apprehension that a panel of the Board might deviate from the course of deciding the case on its merits by reason of Dr Barnett's past membership of the Board.

41 The plaintiffs in both proceedings rely on a total of five grounds in support of their application to quash the Board's decision and restrain Dr Barnett from giving evidence. They are in substance the following:

(a) The Board erred in holding that consideration of the written report and oral evidence of Dr Barnett would not give rise to an apprehension of bias that would disqualify it from determining the appeal.

(b) The Board failed to have regard to a relevant consideration, namely all contended connections between Dr Barnett's association with the Board and the alleged apprehension of bias.

(c) There was no rational basis for the Board to find that it was necessary for it to consider the written report and oral evidence of Dr Barnett.

(d) There was no rational basis for the Board to find that the building surveyor would be denied a fair hearing if the Board were not to consider the written report and oral evidence of Dr Barnett.

(e) The Board failed to consider a relevant consideration, namely cl 6, sch 3 of the Act, and ought to have excluded the evidence of Dr Barnett on the basis that he had not disclosed his pecuniary interest.[30]

43 In Ebner v Official Trustee in Bankruptcy, the High Court determined that the governing principle for apprehended bias is that 'a judge is disqualified if 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'.[31]

44 The principle was said to require two steps to be taken in its application.[32] The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an 'interest' in litigation, the nature of the interest must be spelled out. The second requires the articulation of a logical connection between that interest and the feared deviation from the course of deciding the case on its merits.[33]

45 The question of whether a fair-minded lay observer might reasonably apprehend a lack of impartiality is largely a factual one, which must be considered in the legal, statutory and factual contexts in which the decision is made.[34] The cases cited by the parties bear out the strong factual component in the determination of apprehended bias.

46 While the governing principle applies to decision-makers such as the Board, it is necessary to recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the greater divergence there is from the judicial paradigm.[35]

47 How the principle respecting apprehension of bias is applied depends on the nature of the decision and its statutory context, what is involved in the making of the decision, and the identity of the decision maker. The principle is an aspect of wider principles of natural justice, which have been recognised as having a flexible quality, differing according to the circumstances in which a power is exercised.[36] The hypothetical fair-minded observer assessing possible bias is taken to be aware of the nature of the decision and the context in which it is made, as well as to have knowledge of the circumstances leading to the decision.[37] The possibility of bias must be 'real and not remote'.[38]

48 In Isbester, Gageler J identified three analytical steps in determining whether a decision-making body might not bring an impartial mind to the resolution of the question to be decided. They were:

(a) identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a natural evaluation of the merits;

(b) articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits; and

(c) consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.[39]

Would consideration of the written report and oral evidence of Dr Barnett give rise to an apprehension of bias and disqualify the Board from determining the appeal? (Ground 1)

49 Ground 1 was the primary ground relied on by the plaintiffs. In their submissions, they elaborated their concerns with Dr Barnett's past membership of the Board, and the circumstances surrounding his resignation. They did not submit that the Board was actually biased, but highlighted that:

(a) Dr Barnett had sat on panels of the Board with the chairperson;

(b) the Board had a professional association with Dr Barnett;

(c) members of the Board would have had the opportunity to work with Dr Barnett and to have formed professional relationships with him;

(d) members of the Board would defer to him and assume that his opinions were competent and reliable;

(e) Board members empanelled to hear the proceeding might fear that a determination contrary to Dr Barnett's opinion could adversely impact on:

(i) public confidence in the competence of Board members;

(ii) the Board's reputation as an expert merits review body; and

(f) Dr Barnett had been selected by the Minister to serve on the Board having regard to his experience in fire engineering and in the building industry.

(a) the role of an expert witness who was once a member of the Board is not analogous to that of an advocate who appeared before but was never a member of the Board;

(b) the Board's role in assessing expert evidence is identical to that of a court. The Board is not relieved of the obligation to assess expert evidence because it is an expert specialist tribunal;

(c) the passage of time since Dr Barnett's Board membership has not weakened the association sufficiently to allay the apprehension of bias; and

(d) considerations of credit are no less important when assessing the correctness of an opinion than when assessing the truth of a recollection.

(a) the plaintiffs failed to identify a proper connection between Dr Barnett's former membership of the Board and the reason why the fair-minded lay observer may have apprehended bias;

(b) the plaintiffs failed to consider the particular characteristics of the Board and the statutory context in which it operated;

(c) the matters identified by the plaintiffs were not capable of satisfying the standard necessary to show apprehended bias; and

(d) there could be no reasonable apprehension of bias once regard was had to the circumstances in which the Board operated and the doctrine of necessity.

52 The parties filed affidavits as to the conduct of the appeal before the Board.

53 The plaintiffs relied on Dr Barnett's sessional membership of the Board until 12 November 2019.[40] Dr Barnett sat as a panel member usually where the issues concerned fire safety.[41]

54 Parliament has given specific directions as to the constitution of the Board. The deputy chairperson is required to have experience in the building industry.[42] The Board is to include at least one person who is able to represent the interests of users of the services of building practitioners.[43] It is also to include as many other persons as the Minister considers necessary for the purposes of the Act, and who have experience in the building industry.[44]

55 These legislative requirements highlight the role of the Board as a specialist expert tribunal for the building industry. They reflect the general intention underlying the Act, which is to provide for a system that 'maximises the involvement of the industry in the regulatory framework'.[45] In 2001, ss 166(3)(ba) and (bb) were added to the Act, providing for the appointment of legal practitioners and consumer representatives.[46]

56 The statutory framework of the Board ensures that it is comprised of persons who have the requisite technical expertise to consider the building matters that may be the subject of proceedings before the Board. A substantial part of the workload of the Board consists of appeals from building surveyors.[47]

57 Importantly, the statutory scheme contemplates that Board members will continue to work in the building industry whilst serving on the Board. Clause 6(5) of sch 3 provides that a member of the Board must not be taken to have a pecuniary interest in a matter merely because the member is engaged in the building industry or in any matter connected with that industry.

58 Clause 6(6) of sch 3 provides that a member of the Board must be taken to have a pecuniary interest in a matter relating to a building or building work if the person:

(b) has assisted in making an application for a building permit or occupancy permit for the building or work; or

(c) is the relevant building surveyor in respect of an application for a permit for that building or building work.

59 These provisions contemplate that Board members will be engaged in various occupations in the building industry whilst serving as members of the Board. They also define when a member of the Board will have a pecuniary interest so as to be ineligible to sit as a member of a panel appointed to decide a matter. Thus architects, designers, building surveyors, engineers, building practitioners, and other persons involved in designing a building or in preparing applications for permits regarding a building are disqualified from sitting as members of a panel concerned with that building.

60 The Board's powers in cl 15 of sch 3 are consistent with its role as a specialist expert tribunal. It can proceed by way of written submissions.[48] It may inform itself in any manner it thinks fit.[49] It is bound by the rules of natural justice, but not by any rule or practice as to evidence.[50] It may conduct a proceeding in private if it considers it in the public interest or the interest of justice to do so.[51] It must proceed with as little formality and technicality and with as much expedition as the requirements of the relevant statutes and the proper consideration of the matter before it permit.[52] All of these provisions reflect the statement of intent in the second reading speech that a 'non-legalistic approach' 'will be, and must be continued' as was characteristic of the Board's predecessor, the Building Referees Board.[53]

61 Review of these provisions shows an underlying recognition and intention by Parliament that sessional members of the Board would be drawn from the building industry and from the professions and trades which constitute it. The need to appoint expert members to the Board to hear appeals is met by the ministerial appointment of skilled persons in the industry. Clause 6 of sch 3 gives definitive guidance as to how conflicts of interest are to be managed, and plainly contemplates that sessional members of the Board will ordinarily be able to actively pursue their occupations in the industry.

62 There was no dispute that only the Board could determine the appeal brought by the plaintiffs. There is no other court or tribunal in Victoria which has jurisdiction to hear and determine the plaintiffs' appeal. No other body or tribunal has the fire safety and engineering expertise required to resolve the technical issues that arise in the appeal.

63 The Board based its reasons in part on the doctrine of necessity, referring to the decision of Metropolitan Fire and Emergency Services Board v Churchill, where Gillard J held that the doctrine applied to a disciplinary hearing concerning a firefighter's conduct.[54]

64 In Laws v Australian Broadcasting Tribunal, Mason CJ and Brennan J held that even if there were a case for holding that a reasonable apprehension of bias attached to all of the members of a tribunal, the operation of the rule of necessity would ensure that it was not disabled from performing its statutory functions.[55] The statutory requirement that a tribunal perform the functions assigned to it prevails over and displaces the rules of natural justice.[56]

65 The rule of necessity operates so that the rules of natural justice cannot be used to frustrate the intended operation of a statute which sets up a tribunal and its statutory functions. The rule of necessity permits a member of a court who has some interest in the subject matter of the litigation to sit in a case where no judge without such an interest is available to sit.[57]

66 In Laws, Deane J agreed with Mason CJ and Brennan J but imposed what he described as two prima facie qualifications. The rule of necessity would not apply in circumstances where its application would involve positive and substantial injustice, and then only to the extent that necessity justifies.[58]

67 The suggested concern arises solely from Dr Barnett's former membership of the Board. The doctrine of necessity requires that the plaintiffs' appeals to the Board be heard and determined by the Board. I consider that there is no incapacity on the part of the Board, which ordinarily acts through a panel, and no reason why the Board should not undertake its normal role.

68 The plaintiffs sought that the Board exclude the evidence of Dr Barnett. The Board declined to do so, referring to its obligation to afford natural justice to the building surveyor as well as the plaintiffs.

69 In Board of Education v Rice, the House of Lords expounded the duty of decision-makers to act in good faith, to listen fairly to both sides, and to give each of the parties the opportunity to correct or contradict any relevant statement prejudicial to their position.[59]

70 These fundamental duties of a decision-maker have been recognised in many cases. In R v Board of Visitors of Hull Prison; Ex parte St Germain (No 2), findings of guilt were quashed because witnesses intending to give supporting evidence did not attend the trial.[60] In Moore v Guardianship and Administration Board, the board failed to hear from a potential witness capable of giving relevant evidence.[61] The board's decision was quashed as a breach of the rules of natural justice.[62] In Stead v State Government Insurance Commission, the High Court applied the principle that a party was entitled to a fair trial at which the party could put his or her case before the judge.[63] In Ex parte Napier v Executive Director Corrective Services,[64] the refusal to permit the applicant to call a witness who could give evidence which was not irrelevant or of no value was held to be a failure to afford natural justice.[65]

71 In Slade v Gea, Carruthers AJ held that a magistrate's refusal to allow the defendants to call a witness who could have given relevant evidence amounted to the denial of a fair hearing.[66] His Honour referred to the judgment of the Privy Council in Mahon v Air New Zealand Ltd where it was said that:

The rules of natural justice that are germane to this appeal can...be reduced to those two that were referred to by the Court of Appeal of England in R v Deputy Industrial Injuries Commissioner, Ex parte Moore...The first rule is that the person making a finding...must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests...may be adversely affected by it, may wish to place before him...[67]

72 In R v Deputy Industrial Injuries Commissioner; Ex parte Moore, Diplock LJ said:

...the second rule requires the deputy commissioner...to consider such 'evidence' relevant to the question to be decided as any person entitled to be represented wishes to put before him...[68]

73 The building surveyor is entitled to file a report or call any expert witness of his choice to give relevant evidence to the Board. There was no basis on which the Board, consistently with the rules of natural justice, could have excluded Dr Barnett's report and evidence. The Board was clearly correct when it declined to do so.

74 In Finance & Guarantee Company Pty Ltd v Auswild, Riordan J referred to previous authority and noted that there was no requirement for the evidence of an expert to be independent or impartial.[69]

75 As Dodds-Streeton J said in Ananda Marga Pracaraka Samagha Ltd v Tomar (No 4):

In my opinion, relevant authority establishes that while...objectivity and independence are sought of expert witnesses, such qualities are not preconditions of competence, even in the case of expert witnesses. The sanction for failure to fulfil the obligations imposed by relevant authority and curial protocols is not the exclusion of the expert's evidence, but rather, the significant risk that it will fail to persuade.[70]

76 To the same effect, Wigney J concluded in Rush that an actual or perceived lack of independence, impartiality or objectivity on the part of an expert witness goes to weight, not admissibility.[71]

77 The plaintiffs submit that Dr Barnett's evidence should not be received. Given these authorities, this submission cannot be sustained. At the highest, criticism of Dr Barnett because of his past role as a Board member could only go to the weight to be given to his evidence and not to its admissibility.

78 In their submissions, the parties referred at length to decided cases on apprehended bias. It should be observed, however, as the High Court did in Isbester, that the decided cases depend on their statutory and factual contexts, and the nature of the decision to be made.[72]

79 The plaintiffs referred to Road Corporation v Love, where a judge disqualified himself because an expert planning witness to be called had given evidence in an earlier proceeding in support of the judge's objection concerning a development near the judge's home.[73] The judge and his wife had frequently been in contact with the expert over a period of at least 15 months, and had received the expert at their home on a number of occasions.[74]

80 The plaintiffs also referred to Temwell Pty Ltd v DKGR Holdings Pty Ltd, where a party's solicitor had prepared the judge's mother's will, and the judge was a co-executor of the estate together with the solicitor.[75] There were abuse of process claims involving the solicitor who was likely to be a witness. The judge had a long standing relationship with the solicitor, and recused himself from the trial.[76]

81 A third decision relied on by the plaintiffs was Fried v National Australia Bank Ltd, where the judge and his wife had a continuing association with an accountant who was to give evidence in a trial before him.[77] The judge recused himself because he had acquired an understanding of the accountant's character and the way in which the accountant carried out his professional responsibilities which might subconsciously influence his assessment of the accountant's evidence.[78]

82 The building surveyor referred to Gillies v Secretary of State for Work and Pensions, where the complainant's appeal against a benefits agency was dismissed by a tribunal that was constituted by a medical member with two other non-medical members.[79] The complainant alleged that there was a reasonable apprehension that the medical member was biased because she occasionally provided expert medical reports to the benefits agency in her private practice. The House of Lords held that there was no basis for a finding that there was a reasonable apprehension of bias. The medical member's relationship with the benefits agency was as an independent medical adviser. In both capacities, the medical member had to draw on her own medical knowledge and experience when testing her views against other evidence.[80]

83 The plaintiffs sought to distinguish Mildura Rural City Council v Minister for Major Projects, where Morris J held that there was no reasonable apprehension of bias. A panel member considering a proposal to establish a containment facility for hazardous waste declined to disqualify himself although he had a close association with the state government.[81] Morris J held that it was quite unlikely in the case of an independent professional and qualified adviser that loyalty to a government or party would override individual judgment and integrity.[82]

84 They also sought to distinguish Ego Pharmaceuticals Pty Ltd v Minister for Health and Ageing, where Downes P declined to disqualify a tribunal member who was a scientist and lawyer and legally represented clients in dealings with the government agency associated with the decision making under review.[83]

85 The building surveyor relied on Gascor v Ellicott, which involved complex technical issues as to the economics of producing offshore natural gas.[84] One of the three arbitrators in the proceeding was the leading counsel for the producers in another onshore natural gas pricing dispute and cross-examined expert witnesses who were to be called by the buyers in the current arbitration on similar issues. The Court of Appeal held that a fair minded member of the public would not reasonably apprehend that the arbitrator might not bring an impartial and unprejudiced mind to the resolution of the issues in the current arbitration. It was a reasonable and not fanciful or fantastic apprehension that was to be established, and the apprehension was to be attributed to an observer who was fair-minded.[85]

86 The parties also referred to Vakauta v Kelly, where a judge made critical remarks about the evidence given by the defendants in previous cases.[86] The High Court held that the remarks would have invoked in the mind of a fair-minded lay observer a reasonable apprehension that the judge might not bring an unprejudiced mind to the resolution of the matter before him.[87]

87 In Casey v Australian Broadcasting Tribunal, the tribunal had determined previously that several broadcasting standards had been contravened by programs of which the applicant was a presenter.[88] A request was made to the Tribunal to exercise its statutory powers to conduct an inquiry into the applicant. The applicant contended that the tribunal was permanently barred from taking such action against him on the basis of apprehension of bias. Wilcox J held that the whole of the circumstances were important, including the fact that the tribunal could be constituted by members who had not participated in the earlier determination. A public perception that the tribunal had already formed a view about the applicant's conduct did not determine the question of apparent bias. There must be attributed to the fair minded observer a level of information which includes a knowledge of the persons who would make each of the relevant decisions.[89] It was a sufficient safeguard against any tendency of tribunal members to support the decision of their colleagues as a result of institutional loyalty that persons who had previously been involved refrain from participating in the final decision.[90]

88 Recusal decisions by judges and tribunals commonly involve consideration of professional associations. In Waterhouse v Independent Commission against Corruption (No 3), Basten JA refused to recuse himself despite performing the role of Acting Commissioner of the Commission prior to his appointment as a judge, and professional associations with another judge who had represented the plaintiff's family in the past.[91]

89 Likewise in Permanent Custodians Ltd v Geagea, a party was president of a school at the same time as the judge was president of a different school. There were a number of communications between them relating to the schools.[92] Rothman J held that the existence of a professional association between a party and a judge prior to appointment did not, without more, form a basis for disqualification of the judge.[93] The judge's relationship with the party was more distant than the relationship between the Bar and the Bench or solicitors or counsel.[94] There was no domestic relationship or personal friendship, or impediment to the unprejudiced resolution of the proceeding.[95]

90 In Seven Network Ltd (No 2), recusal was sought of a member of the Australian Competition Tribunal who was formerly a member of the Australian Competition and Consumer Commission. The member had presided in arbitrations between the same parties in relation to TV analogue services. The member declined to recuse himself as the nature of the decision to be made concerned digital services and was quite different from the earlier arbitrations.[96]

91 In Neil v Legal Profession Complaints Committee (No 2), the appellant asked a judge of the Court of Appeal to recuse himself on the basis that he was formerly a member of the Legal Profession Complaints Committee and the Legal Practice Board. There was no evidence that the judge had previously dealt with the complaint.[97] The judge declined to recuse himself on the basis that his association with the bodies ended on judicial appointment, and there was no reason for him to have any interest as to whether the disciplinary proceeding should succeed or fail. There was no logical connection between the past association and the alleged deviation from the course of deciding the appeals on their legal and factual merits.[98]

92 It is appropriate to make the following threshold observations about Ground 1:

(a) The plaintiffs did not submit that the Board misdirected itself as to the legal tests to be applied to determine whether there was a reasonable apprehension of bias under the principles set out in Ebner and Isbester.

(b) The plaintiffs did not submit that the Board made an error of fact or misstated the facts.

(c) It was common ground that the doctrine of necessity requires the appeal to be heard and determined by the Board, and that there is no other tribunal or body with jurisdiction to do so.

(d) It is an ordinary responsibility of the chairperson to select members for the panel who will hear and determine the appeal.

(e) The chairperson can convene a panel which has no association to Dr Barnett other than past common membership of the Board.

(f) By the time that judgment is handed down in this proceeding, over 16 months will have elapsed since Dr Barnett's resignation. It may be 18 months or more before a panel of the Board can conduct a hearing of the appeal.

(g) As time passes, Dr Barnett's role as a past Board member becomes ever more distant.

93 The plaintiffs face the obvious difficulty of persuading the Court that the fair-minded lay observer might reasonably apprehend that the panel to be convened to hear the appeal might decide the appeal for reasons other than its merits when the composition of the panel to hear the appeal is not final and the panel has not had any opportunity to consider any application for recusal.

Was it necessary for the Board to exclude Dr Barnett's report and evidence in order not to have a reasonable apprehension of bias?

94 In my view, the Board did not err in determining that it was not disqualified from receiving Dr Barnett's report and hearing his evidence as:

(a) the Board's role is that of a specialist technical tribunal composed of well qualified and experienced members drawn from the building industry;

(b) a large number of proceedings before the Board involve the evaluation and determination on the merits of technical issues with the assistance of expert evidence;

(c) it is inherent in the role, establishment and structure of the Board that members acting in their ordinary professional capacities will appear as witnesses before the Board;

(d) this is the inevitable consequence of the technical jurisdiction of the Board and the sessional nature of Board membership;

(e) the provisions of the Act relating to pecuniary interests are predicated on this situation, and prescribe what is and is not permissible;

(f) the suggested association with Dr Barnett does not extend beyond common past Board membership;

(g) while issues relating to credit can arise in any proceeding, credit issues are unlikely where the evidence is purely technical in nature;

(h) there would be a breach of the rules of natural justice if the building surveyor were denied the opportunity of tendering a report or calling evidence from Dr Barnett, whose evidence is plainly relevant to the issues to be decided;

(i) it is open to the plaintiffs to retain their own expert witnesses as to the merits of the appeal. There is no reason why the Board would defer to Dr Barnett's evidence given that equally cogent evidence might be forthcoming from opposing experts, and given the considerable expertise of Board members themselves; and

(j) the fair-minded observer would conclude that the decision of the panel hearing the appeal to accept or reject Dr Barnett's evidence as against other expert evidence would make no difference to the Board's reputation as an expert merits review body.

95 The plaintiffs made much of a submission that a determination contrary to Dr Barnett's opinion might adversely affect public confidence, the reputation of the Board, or the Board's institutional comity. I disagree. Public confidence in the Board depends on the fairness of its processes, and the quality of its decisions. Public confidence and the reputation of the Board are not affected by whether a panel decision on technical matters agrees in whole or part with the expert opinion of a former Board member.

96 As far as institutional comity is concerned, Dr Barnett's profile as a member of the Board has significantly receded in the time that has elapsed since the Board decision. In my view the fair-minded lay observer would not take the view that any of these matters might give rise to a reasonable apprehension of bias, or might cause a Board member not to make a decision on the merits.

97 Rather, a fair-minded lay observer would have regard to the qualifications and expertise of Board members, their substantial experience in the building industry, and to their significant legal and public responsibilities when making decisions about fire safety. There is no logical reason why a fair-minded lay observer would consider that the members of the panel might depart from decision making on the merits merely because an expert appearing before them was a past Board member.

98 I conclude that a fair-minded lay observer would not reasonably apprehend that the panel of the Board ultimately appointed to hear the appeal would depart from the course of deciding the appeal on the merits because Dr Barnett was previously a member of the Board.

99 In their written submissions, the plaintiffs advanced an additional argument arising from the circumstances of Dr Barnett's resignation from the Board. They said that the Board's letter of 13 November 2019 suggests that there was some form of communication between the chairperson and Dr Barnett prior to the adjournment of the directions hearing scheduled for 12 November 2019. They submitted that the chairperson should have said whether this was so and that in the ordinary course, any contact by an expert retained by a party with the chairperson would be grossly inappropriate.

100 There are two answers to this submission. First, the plaintiffs have not shown that the contact between Dr Barnett and the chairperson (if there was any) was related in any way to the substance or merits of the appeal. Rather the evidence suggests that Dr Barnett advised of his resignation as a member of the Board to the Deputy Registrar who passed the information on to the chairperson. Secondly, any residual concern about this issue is simply resolved if the chairperson does not sit as a member of the panel that ultimately hears and determines the appeal. It will then be clear that the ultimate decision makers were not affected by anything that may have passed between Dr Barnett and the chairperson concerning Dr Barnett's resignation.

101 I am not satisfied that the plaintiffs have made good Ground 1 or shown error in the Board decision such as would attract the operation of ord 56 of the Rules or cause the Board decision to be quashed. Ground 1 fails.

Did the Board fail to have regard to a relevant consideration being all contended connections between Dr Barnett's association with the Board and the alleged apprehension of bias? (Ground 2)

102 In addition to the submissions discussed above, the plaintiffs submitted that the Board chose to ignore relevant considerations being the matters set out in the 'Urgent Supplementary Submissions of the First named Applicant' dated 6 December 2019 ('supplementary submissions') and in particular paragraphs [10], [11], and [15]. In substance, these paragraphs contend that Dr Barnett and his firm performed work in relation to the building and charged a fee of at least $5,016, including GST for the period between 1 February 2014 and 14 March 2014. This work concerned a 2013 building notice which is similar to the building order the subject of the appeal. The plaintiffs then submitted that there may be issues of credit relating to previous opinions and advice offered by Dr Barnett's firm.

103 The Board addressed the supplementary submissions in an addendum to the Board decision.[99] Orders on 2 October 2019 were made for the filing of written submissions by all parties. The directions hearing was conducted on 19 November 2019 when all parties were heard. No further orders were sought by the parties at that hearing. The Board said that it would determine the matter based on the material presented as at that date. The supplementary submissions were received by the Board on 6 December 2019.

104 The Board discerned that the supplementary submissions raised a different issue to the issues before the Board. It would be unfair if the new issue was taken into consideration as the building surveyor would need to obtain further instructions in relation to the matters raised in the supplementary submissions. As a result, the chairperson limited his decision to the submissions made by the parties up to and including 19 November 2019.

105 The Board's decision is plainly correct. In the Matter of an Application by the Chief Commissioner of Police, a plurality of the High Court noted that in R v Theophanous,[100] the Court of Appeal of Victoria had observed that once argument had been presented at the hearing leave was necessary before further submissions were made and that leave to do so would be granted only in very exceptional circumstances.[101]

106 In Carr v Finance Corporation of Australia Ltd (No 1), Mason J said:

The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.[102]

107 The chairperson acted correctly and in accordance with these authorities in relation to the supplementary submissions which were filed late and without leave. The plaintiffs did not at any time seek or obtain leave from the Board to rely on their supplementary submissions.

108 While the matters raised in the supplementary submissions were not decided or taken in account, there is no injustice or unfairness to the plaintiffs. They are at liberty to make the same submissions to the panel ultimately appointed to hear the appeal. It is a matter for the panel appointed to hear the appeal to deal with these submissions if they are pursued.

Was there no rational basis for the Board to find that it was necessary for it to consider the written report and oral evidence of Dr Barnett? (Ground 3)

Was there no rational basis for the Board to find that the building surveyor would be denied a fair hearing if the Board were not to consider the written report and oral evidence of Dr Barnett? (Ground 4)

109 These grounds must be rejected for the reasons I have given above.

110 Dr Barnett's report and expert evidence have a high level of relevance to the issues in the appeal, and are relied on by the building surveyor. A failure by the Board to receive the report and the evidence of Dr Barnett would be a failure by the Board to listen fairly to the building surveyor's case and a denial of natural justice. The authorities that I have set out above make it clear that the evidence must be received.[103]

111 For this reason, and the reasons I have already set out above, Grounds 3 and 4 must fail.

Did the Board fail to consider a relevant consideration namely cl 6 sch 3 of the Act and should it have excluded the evidence of Dr Barnett on the basis that he had not disclosed his pecuniary interest? (Ground 5)

112 Ground 5 raises a new matter not argued before the Board and is misconceived.

113 Clause 6(5) of sch 3 of the Act provides that a member of the Board must not be taken to have a pecuniary interest in a matter merely because the member is engaged in the building industry, or in any matter connected with that industry. As a person engaged in the building industry, Dr Barnett was not precluded from acting or advising in relation to the building. When the appeal commenced, he was obliged under cl 6(1) to advise the chairperson that he had a pecuniary interest. There is no evidence one way or the other as to whether he did, as the point was not raised before the Board.

114 Under cl 6(2), the effect of a pecuniary interest is to disqualify a member from being a member of the panel, or from being present when the panel is considering or deciding the matter. Dr Barnett was never a member of a panel appointed to hear and determine the appeal, and is not now a member of the Board. His appointment to the panel that would decide the appeal was never in contemplation. There is no evidence that Dr Barnett or the Board acted in breach of cl 6 or the pecuniary interest provisions of sch 3 and no reason why his evidence should be excluded.

116 The grounds relied on by the plaintiffs all fail. There is no basis for quashing the Board decision by an order for certiorari or for judicial review under ord 56 of the Rules. The proceedings must be dismissed.

117 The plaintiffs' appeal to the Board will now proceed to hearing by a panel to be appointed by the chairperson having regard to the requirements of the Act and the guidance given in these reasons.

CITY OF MELBOURNE (MUNICIPAL BUILDING SURVEYOR)

CITY OF MELBOURNE (MUNICIPAL BUILDING SURVEYOR)

[1] In the matter of the Owners Corporation PS419696X v City of Melbourne (No 2) [2019] VBAB 42 (Riegler M) ('Board decision').

[8] Victoria, Parliamentary Debates, Assembly, 11 November 1993, 1690 (Robert Maclellan, Minister for Planning).

[17] Dr Barnett formed the panel at the Board on nine occasions in 2018 and 2019 - see [2018] VBAB 8, [2018] VBAB 17, [2018] VBAB 18, [2018] VBAB 19, [2018] VBAB 26, [2018] VBAB 31 and [2019] VBAB 17, [2019] VBAB 31, [2019] VBAB 39.

[18] Dr Barnett acted as an advocate or expert before the Board on six occasions in 2018-2020 - see [2018] VBAB 38, [2019] VBAB 3, [2019] VBAB 5, [2020] VBAB 44, [2020] VBAB 53 and [2020] VBAB 91.

[20] Referring to ss 140, 141 and 142 of the Act.

[27] Referring to Metropolitan Fire and Emergency Services Board v Churchill [1998] VSC 51.

[30] This ground was relied on only by OC.

[31] [2000] HCA 63; (2000) 205 CLR 337, 344 [6] (Glesson CJ, McHugh, Gummow and Hayne JJ) ('Ebner').

[33] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, 146 [21] (Kiefel, Bell, Keane and Nettle JJ) ('Isbester'), citing Ebner (n 31) 345 [8].

[35] Ibid 146 [22], citing Ebner (n 31) 343-4 [4]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 563 [181] (Hayne J).

[36] Isbester (n 33), 146 [23], citing Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 612 (Brennan J).

[37] Ibid, citing Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438, 459 [68] (McHugh J); Stollery v Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509, 519 (Barwick CJ).

[39] Isbester (n 33), 155-6 [59], cited in Martin v Minister for Immigration and Border Protection [2018] FCA 893, [33] (Lee J).

[44] Ibid s 166(3)(c). There are currently about 55 members of the Board. Apart from the chairperson, they are all sessional.

[45] Victoria, Parliamentary Debates, Assembly, 11 November 1993, 1694 (Robert Maclellan, Minister for Planning).

[46] Building (Amendment) Act 2001 (Vic) s 8(1).

[49] Ibid cl 15(3)(b). See Zaitsev v Building Appeals Board [2019] VSC 364, 14 [47] (Quigley J).

[50] Act sch 3 cls 15(3)(c), (d). See Valorne Pty Ltd v Building Appeals Board [2013] VSC 641, 12 [18] (Daly AsJ); You v Thomas [2014] VSC 255, 5 [14]-[17] (McMillan J); Anstee & Calnan v Eyers [2011] VSC 79, 5 [15], 16-18 [56]-[64] (Osborn J).

[53] Victoria, Parliamentary Debates, Assembly, 11 November 1993, 1690 (Robert Maclellan, Minister for Planning).

[54] [1998] VSC 51.

[55] [1990] HCA 31; (1990) 170 CLR 70, 88 ('Laws').

[57] Ibid 88-9, citing Dimes v Proprietors of Grand Junction Canal [1852] EngR 789; (1852) 3 HLC 759, 787-788; Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243, 259 (Isaacs J); Builders' Registration Board (Queensland) v Rauber (1983) 57 ALJR 376, 385-386, 392 (Brennan and Deane JJ).

[59] [1911] UKLawRpAC 18; [1911] AC 179, 182.

[60] (1979) 1 WLR 1401.

[61] [1990] VicRp 80; [1990] VR 902, 914.

[63] [1986] HCA 54; (1987) 161 CLR 141, 145, quoting Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55, 67.

[64] (Full Court of the Supreme Court of Western Australia, Seaman, Anderson, Scott JJ, 15 August 1994).

[66] [2001] NSWSC 38, [86] ('Slade').

[67] [1984] 1 AC 808, 820-821 (Lord Diplock), quoted in Slade (n 66) [96].

[68] [1965] 1 QB 456, 490, quoted in Slade (n 66) [99].

[69] (2019) 59 VR 288, [57]-[60]; ASIC v Rich [2005] NSWSC 149; (2005) 190 FLR 242, 300 [242]; 324-5 [348]-[349]; Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622, [8]-[9], [36] (Wigney J) ('Rush'); Ananda Marga Pracaraka Samagha Ltd v Tomar (No 4) [2012] FCA 385; (2012) 202 FCR 564, 570 [35] (Dodds-Streeton J) ('Ananda').

[72] Isbester (n 33) 146 [20], [23] (Kiefel, Bell, Keane and Nettle JJ).

[73] (2010) 27 VR 156 (Cavanough J).

[75] [2003] FCA 345 (Merkel J).

[77] [2000] FCA 787 (Weinberg J).

[79] [2006] UKHL 2; [2006] 1 All ER 731.

[81] [2006] VCAT 623.

[83] [2012] AATA 113; (2012) 125 ALD 588.

[84] [1997] 1 VR 332 (Brooking, Tadgell and Ormiston JJA).

[86] [1989] HCA 44; (1989) 167 CLR 568.

[88] (1988) 16 ALD 680.

[91] [2016] NSWCA 134.

[92] [2013] NSWSC 693.

[96] [2004] A Comp T 6.

[97] [2017] WASCA 158, [3].

[100] [2003] VSCA 78; (2003) 141 A Crim R 216, 286 [204].

[101] [2005] HCA 18; (2005) 79 ALJR 881, 885 [22].

[102] [1981] HCA 20; (1981) 147 CLR 246, 258, cited in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318, 330 [30]. See also R v Zhan Yu Zhong [2003] VSCA 56, [2]-[4].