Randren House Pty Ltd v Water Administration Ministerial Corporation

Land and Environment Court (NSW)|2017-11-27|Before: Molesworth AJ, Mr P, Ms J

The relevant legal principles

There was no dispute between the parties as to the relevant test for apprehended bias (Transcript, 27 November 2017, pp 1 and 20). The accepted test is that stated by the plurality of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63: see Antoun v The Queen (2006) 159 A Crim R 513; [2006] HCA 2 at [82]. The two-step test is set out in Ebner v Official Trustee in Bankruptcy at [6]-[8] (citations omitted): [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. [7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. [8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
However, I should note that there is some doubt as to whether the last sentence at [8] actually constitutes a third step: see, eg, Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed 2017, Lawbook Co) at 651-652.
Relevantly for the purposes of the present recusal application, it is important to identify that the rule against apprehended bias is directed to prejudgment rather than predisposition. In this respect, it is useful to set out paragraphs [42] and [43] of Commissioner Heydon's Reasons for ruling on disqualification applications (Commonwealth, Royal Commission into Trade Union Governance and Corruption, Reasons for ruling on disqualification applications (31 August 2015)): [42] Counsel Assisting also pointed out that the rule against bias, actual or apprehended, is directed to prejudgment incapable of being altered by evidence or argument. It is not directed to predisposition capable of being swayed by evidence or argument. They cited the words of Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-2 [71]-[72]: Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. … Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. [43] Counsel Assisting also cited R v S (RD) [1997] 3 SCR 484 at 533-4 [119]. That Canadian case was quoted with approval in Helow v Home Secretary [2008] 1 WLR 2416 at 2435 [57]. In the Canadian case, L'Heureux-Dubé and McLachlin JJ said: It has been observed that the duty to be impartial "does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge, is to recognise, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind".

The jurisdictional matter

The Applicants' first ground is that, under s 7 of the Court Act, the function of hearing and disposing of final hearings is conferred on those appointed as a judge of the Court but not on those appointed to act as a judge of the Court (Transcript, 27 November 2017, pp 2-3 and 50). I interpose here to note that section 7 provides that "[t]he Court shall be composed of a Chief Judge appointed by the Governor and such other Judges as the Governor may from time to time appoint". Hence, as I am appointed to act as a judge (an acting judge); the Applicants contend that I ought to recuse myself because I am disqualified from conducting (or not qualified to conduct) the trial in these proceedings (Transcript, 27 November 2017, pp 14 and 16). In support of this jurisdictional contention (see Transcript, 27 November 2017, p 36), the Applicants made the following submissions.
The Applicants submitted that it is clear from ss 8 and 11 of the Court Act that I was appointed to "act as a Judge" of this Court for a specified time period and that I was not appointed "to be a Judge" of this Court: citing, by analogy, Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 at [71]. The Applicants emphasised that the two appointments are "radically different" by virtue of the "possibility of permanent appointment, and the possibility of reappointment as an acting judge": Forge v Australian Securities and Investments Commission at [71] (Transcript, 27 November 2017, p 49). In this respect, the Applicants submitted that the fact that a person appointed to act as a judge is deemed to be a judge for the purposes of the Court Act and any other Act by virtue of s 11 "is not sufficient to overcome the provision in s 7" (Transcript, 27 November 2017, p 14).
Moreover, the Applicants submitted that it is significant that the Court "must principally be constituted by permanent judges (who have tenure of the kind for which the Act of Settlement [1700 12 & 13 Wm III c 2] provided: appointment during good behaviour for life, or, now, until a set retirement age, with no diminution of remuneration during tenure)": Forge v Australian Securities and Investments Commission at [73]. This was said to be "an abstraction from the more general principle that a Court of the State … must be institutionally independent and impartial" (Transcript, 27 November 2017, p 13).

Institutional integrity and the appearance of impartiality

The Applicants' second, institutional integrity ground is that there is an issue regarding the absence of the appearance of impartiality in circumstances where I, as a person appointed to act as a judge in a small (albeit superior) Court, am "beholden" to the State to re-appoint me as an acting (or permanent) judge whilst hearing and disposing of proceedings where the State and a Minister et cetera are the Respondents (Transcript, 27 November 2017, p 17): citing, by analogy, Forge v Australian Securities and Investments Commission.
In support of this ground, the Applicants submitted that a reasonable bystander might conclude that there is a possibility that I, as an acting judge, might be influenced in hearing and resolving the present proceedings because of the possibility that a decision to reappoint me might be influenced by my conduct and judgment. In the words of Mr King "…it doesn't require much imagination by the ordinary bystander to jump to, with respect, the conclusion that your Honour drew a little while ago, that the conversation between colleagues, whether in the public service or in the ministry [about my reappointment] … may possibly occur" (Transcript, 27 November 2017, pp 18-19).
In response to a question from the Court as to the relevance of, for example, a high profile (reported widely in the media) decision in which I declared a decision of a Minister to be unlawful - Millers Point Community Assoc Inc v Property NSW (2017) 224 LGERA 407; [2017] NSWLEC 92 - the Applicants submitted that an "ordinary member of the public, knowing those facts, may well, if he or she has a matter against the State coming up, may well say, 'unfortunately, we're listed before an acting judge, not a judge of the Court', and there is not a remote possibility that the public reaction to the judgment against the government may well influence that judge in his next decision, his or her next decision…" (Transcript, 27 November 2017, pp 19).
With respect to the relevance of the small size of this Court, the Applicants submitted that the presence of one acting judge in a Court of only six judges heightens the perceived threat to the institutional integrity of the Court (Transcript, 27 November 2017, p 17).

Apprehended bias

Prior to making their submissions in support of this ground, the Applicants set out the relevant test from Ebner v Official Trustee in Bankruptcy (see above). The Applicants submitted that the applicability of this test is not limited to "factual or credit questions" but also relates "to the legal merits of the case" (Transcript, 27 November 2017, p 20). (I interpose here to note that the Applicants said that this test does not inform the answer to its first ground set out above, but does inform its second ground: Transcript, 27 November 2017, p 50.)
In this context, the Applicants contended that my judgment of Randren House Pty Ltd v Water Administration Ministerial Corporation demonstrates that, on the above test, I should recuse myself because, primarily, it might be concluded that I have prejudged an important aspect of the case. Relevantly, the Applicants first focussed on the following part of my decision (concerning the application to amend the extant Summons): [63] The Applicant clearly proposes to make a significant amendment to the extant Summons. It seeks to include a sought order in the nature of a writ of prohibition and/or injunctive relief to prevent the Respondents from directing particular water flows into Yanco Creek or, alternatively, prevent unreasonable use of the waters of Yanco Creek. The Applicant's position is that this amendment is necessary and appropriate because it would protect against the alleged ongoing environmental damage to Yanco Creek. [64] However, these judicial review proceedings do not centrally concern whether or not the Respondents have caused environmental damage and, if so, how they should be restrained. Rather, these judicial review proceedings concern whether or not the Respondents have made particular decisions (which, to be sure, may affect Yanco Creek and its surrounding environment) unlawfully by, for example, failing to have regard to mandatory relevant matters for consideration. The proposed amendment, therefore, does not pertain to a real question raised or otherwise depending on the proceedings. Additionally, a decision not to permit the amendment would not result in any lack of finality to the ultimate resolution of the proceedings or a realistic risk of a multiplicity of proceedings. The critical questions of whether or not the challenged decisions are lawful cannot be dependent on what happens after the proceedings are resolved. [65] Moreover, the risk that separate proceedings may be commenced to address any ongoing environmental damage to Yanco Creek cannot be appropriately addressed by amending the Summons in the manner proposed by the Applicant. The question is whether or not the proceedings will result in finality as to the legality of the relevant decisions of the Respondents. The question is not whether the proceedings will result in finality as to the dispute between the Applicant and the Respondents as to the environmental condition of the Yanco Creek. [66] Additionally, it is of some significance that the application to amend was made informally by way of an attachment to a letter annexed to an undated affidavit on 4 August 2017 (or 8 August 2017). In circumstances where the initiating Summons was filed on 22 June 2015, this request for amendment 25 months later and after no less than 15 earlier interlocutory hearings in the matter, is (without a compelling explanation) entirely unacceptable and even more inappropriate just 12 working days from the commencement of the trial. In all of the circumstances, I find that the Respondents would likely suffer prejudice if the amendment were to be allowed and that so to do would not be consistent with the overriding purpose of civil litigation: Aon Risk Services Australia Ltd v Australian National University.
In support of this ground, the Applicants made the following submissions.
First, with respect to [64]-[65] of my decision in particular, the Applicants submitted that I effectively said that "environmental damage is some vestigial issue which does not pertain to a real issue" and that "if there's a problem about environmental damage, you can go off and sue elsewhere for that": (Transcript, 27 November 2017, pp 21-22). The Applicants submitted that the relevant statements are contrary to section 22 of the Court Act, which provides that: The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
The relevant statements that I made were said to be contrary to section 22 because they demonstrate that the Court has determined not to grant all remedies even if the Applicants appear to be entitled to such remedies but, rather, defer the issue for another day. Thus, the Applicants submitted that it is clear that there is a "possibility that your Honour had resolved the question as to whether or not environmental damage is a real issue and whether or not you will have regard to it, but your Honour simply wants to park that off in some other action" (Transcript, 27 November 2017, p 25). In other words, in deciding the interlocutory Notice of Motion and applications, the "Court has committed itself to an opinion as to a legal question and the relevance of all of the issues relating to that legal question; namely, whether or not a central issue in the case is the environmental damage for which my clients very clearly and specifically claim" (Transcript, 27 November 2017, pp 51-53 and 57): citing British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2.
Secondly, on the assumption that I was correct in saying, effectively "that we're only concerned with the legality of decisions", the Applicants stressed that "on the pleaded case it's absolutely clear that in respect of each and every decision, environmental damage in relation to the water source on my client's land in Yanco Creek is a critical integer of the invalidity" (Transcript, 27 November 2017, pp 22 and 31). In this respect, the Applicants claimed that the question of environmental damage is "fairly and squarely at the heart of the case" by virtue of the pleadings (Transcript, 27 November 2017, p 23). For example, paragraph 3 of the Further Amended Points of Claim is in the following terms: As a result of the river management and works decisions of the Respondents their servants or agents complained of herein and the unnatural use by the Respondents their servants or agents of Yanco Creek as an irrigation canal between 1995 and the date hereof, the natural heritage, the pastures and the geography of Somerset Park have been damaged through excessive inundation of the wetlands including their dependent ecosystems known as the Billabong water source in the Lake Paddock at Somerset Park from artificially created overflows cause (sic) by river operations of the said Respondents and high flows in Yanco Creek with loss and impairment of the natural heritage of Somerset Park its trees, native vegetation and pastures, which loss and damage has been ongoing …
Additionally, the Applicants denied that my statements at [64] were simply a statement of the nature of judicial review proceedings. In this regard, the Applicants submitted that judicial review is not only concerned with the legality of decisions (Transcript, 27 November 2017, p 21).
Thirdly, the Applicants submitted that other paragraphs of my decision ([17]. [23] and [58]) support the conclusion from a reading of [64] that a question arises as to the perception of my independence or impartiality and whether or not I have prejudged the case.
With respect to [17], the Applicants submitted that the factual statement therein that the Court - on 4 August 2017, more than two years after the commencement of the proceedings - fixed the matter for hearing on 27-30 November 2017 is significant because "the Court fixed the matter for hearing before it was ready and before the respondents had served any evidence…" (Transcript, 27 November 2017, p 27). In this respect, whilst the Applicants did not deny that no objection was made to the matter being fixed for hearing, they submitted that "[i]t was the respondents who pressed for the early hearing date before they put on their evidence" (Transcript, 27 November 2017, p 31).
With respect to [23], the Applicants submitted that it is significant that the Court stated that "the privilege of issuing a notice to produce is not unfettered" before setting out the accepted test relating to the need for a person seeking access to documents under a notice to produce to establish a legitimate forensic purpose. The Applicants contended that the issue of a notice to produce to court is a procedural right rather than a privilege.
With respect to [58], the Applicants submitted that it is significant that I decided that the relevant items sought in the Notice to Produce to Court did not meet the requisite tests regarding legitimate forensic purpose in circumstances where some of the documents sought, such as environmental impact statements, were "very relevant" and where the absence of such documents was expressly pleaded (Transcript, 27 November 2017, p 28). Moreover, the Applicants submitted that I had not provided relevant reasons for my decision to set aside parts of the Notice to Produce to Court and that, therefore, it can only be assumed that my reasoning process was based on the same impugned reasoning at [64] of my judgment (Transcript, 27 November 2017, p 31). In the words of Mr King, the logical connection between these issues and "the feared deviation is really twofold": Firstly, the commitment, the natural commitment, which a court or a judge has expressed strong views and made rulings excluding issues and evidence before the trial, to those views, and then be affected by those in his or her decision making at the trial. The second logical connection is linked to the second issue; that is, the institutional integrity point, and that is that there may be an apparent conflict between the duty to decide the matter impartially and independently and the interest of the State which has in its case, which includes, amongst other things, denying that environmental damage has any relevance. (Transcript, 27 November 2017, p 31).
Finally, with regard to the issue of whether the Applicants' recusal application amounts to a collateral attack on my decision in Randren House Pty Ltd v Water Administration Ministerial Corporation, the Applicants made the following two points: Firstly, we're not required to, we haven't appealed that point, but, of course, under the learning of the High Court in relation to interlocutory errors, which affect the final hearing, but you can take that up in a notice of appeal at the end of the case, if that's one's wish. So, in other words, we don't forfeiture or waive any right with respect to the error in the interlocutory judgment, assuming it affects the case at final hearing. That's the first point. The second point is that this application is not a collateral attack on your Honour's judgment. It is consequential upon that judgment. It's looking at the result giving rise, not to speculation, but to concerns that a fair minded lay observer would have with respect to what your Honour perceives to be the real issues in the case. Is it a technical restricted case of the sort that the State would have, and they picked it up in para 1 of their written submissions, or is it a case with broader implications involving environmental damage and ongoing harm to my client's agricultural land and their environmental sensitivities. Not every farmer in this State is someone who is assumed by some people in the city and in the government is interested only in money. Many farmers are interested in conserving the natural heritage of their own properties. When they find governments, who they elect, have actually been the cause of damage to their own natural heritage, which they own, temporarily, intergenerationally for the next generation, but nonetheless own, then they are properly concerned to raise those issues in a court such as this. (Transcript, 27 November 2017, p 33).

The submissions of the Respondents

In responding to the Applicants' three grounds, the Respondents submitted that each of the Applicants' grounds (rather than just the third ground) should be understood as forming part of an apprehended bias application which is to be determined on the test in Ebner v Official Trustee in Bankruptcy (Transcript, 27 November 2017, p 37). In fact, the Respondents claimed that - in respect to the Applicants' first and second grounds - "there hasn't been any real attempt made at analysis of the application of the two-step Ebner test insofar as your Honour hasn't heard why it is that a fair-minded observer might think that your Honour might decide the case other than by reference to the law and the merits of the case and it is in that context that that analysis is necessary" (Transcript, 27 November 2017, p 42). To the extent that the application of the test could be inferred, the Respondent submitted that the Applicants had not established either step.

The jurisdictional matter

The Respondents submitted that the answer to the Applicants' contention regarding whether I have jurisdiction to hear and dispose of the matter with respect to s 7 of the Court Act is found in s 11(3). Section 11(3) provides that a person appointed to act as an acting judge "shall, for the time and subject to the conditions or limitations specified in the person's commission, have and may exercise the functions of a Judge and shall, for the purposes of this or any other Act, be deemed to be a Judge".
Accordingly, the Respondents said that "[y]our Honour has, as your Honour's colleagues and predecessors as acting judges always have, fulfilled all of the functions of a judge of this Court and I'm not aware of any authority that would suggest that your Honour's position as an acting judge simpliciter … would lead to any difficulty whatsoever in respect of an apprehension of bias". In this respect, the Respondents reiterated that there is no authority for the proposition that the Court can never be constituted by an acting judge for (in particular) Class 4 proceedings (Transcript, 27 November 2017, pp 5 and 37).
Moreover, the Respondents contended that, on the test in Ebner v Official Trustee in Bankruptcy, "the fair minded lay observer … would be taken to know of the fact that acting judges may be appointed to the Court and that they would be appointed in accordance with statute".

Institutional integrity and the appearance of impartiality

The Respondents rejected the Applicants' claim, in the Respondents' words, that I am ineligible to hear and dispose of the proceedings because I might, due to my appointment as an acting judge, be favourably disposed towards the State because of a potential concern about reappointment. The Respondents made the following submissions in support of their position.
First, the Respondents claimed that the fair-minded lay observer would be taken to know that acting judges have taken oaths of office and understand their obligation to bring an impartial mind to all proceedings, including those involving the State as a party (Transcript, 27 November 2017, p 6).
Secondly, the Respondents denied that Forge v Australian Securities and Investments Commission "provides authority in relation to this Court not being able to be constituted as a Court by reference to your Honour's status as an acting judge" (Transcript, 27 November 2017, p 39). In fact, the Respondents submitted that the decision is not authority for any principle that the "appointment of any acting judge gives rise to an apprehension of bias in circumstances where that acting judge may be eligible for re-appointment" (Transcript, 27 November 2017, p 39).
In support of this, the Respondents emphasised that this case concerned a constitutional challenge to the validity of a section of the Supreme Court Act 1970 relating to the appointment of acting judges of the Supreme Court. With respect to the passages emphasised by the Applicants, the Respondents submitted that the propositions were unremarkable but of no real relevance to the present recusal application (Transcript, 27 November 2017, pp 38-39).
Conversely, the Respondents submitted that the following paragraphs of the decision of Heydon J (as his Honour then was) in Forge v Australian Securities and Investments Commission are of relevance to the present application (citations omitted): [269] Like permanent judges, acting judges of the Supreme Court of New South Wales are appointed by the Governor on ministerial advice by commission under the public seal of the State. Like permanent judges, acting judges are qualified for appointment if they are legal practitioners of at least seven years' standing, or if they hold or have held a judicial office of New South Wales or of the Commonwealth, or of another State or a Territory. Like permanent judges, acting judges are obliged to take not only the oath of allegiance but also the judicial oath (to "do right to all manner of people after the laws and usages of the State of New South Wales without fear or favour, affection or ill-will"). These oaths are not seen as mere words. Acting judges have "all the powers, authorities, privileges and immunities and fulfil all the duties of" permanent judges. Among those immunities is immunity from suit, and among those privileges is the protection afforded by the law relating to contempt of court. The protection and immunity of both permanent and acting Supreme Court judges performing duties as judges extends to judges when performing ministerial duties as judges. The remuneration of acting judges, like that of permanent judges, is, subject to parliamentary disallowance, determined from time to time by the Statutory and Other Offices Remuneration Tribunal, is directly appropriated from the Consolidated Fund, is a statutory entitlement and cannot be reduced during the term of the respective officers. Both acting and permanent judges are only removable from office by the Governor after the Governor has received, first, a report of the Conduct Division of the Judicial Commission of New South Wales setting out its opinion that the matters referred to in the report could justify parliamentary consideration of the removal on the ground of proved misbehaviour or incapacity and, secondly, an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity. Both acting and permanent judges are subject to the same system of complaints and discipline administered by the Judicial Commission of New South Wales and to the same capacity for scrutiny by the Independent Commission Against Corruption. The intra-curial arrangements for the transaction of the business of the Court of Appeal apply indifferently as between permanent Judges of Appeal and acting Judges of Appeal, and the intra-curial arrangements for the transaction of the business of a Division apply indifferently as between permanent judges appointed or nominated to that Division and acting judges so appointed or nominated. Hence the same practices in relation to the court administration apply - assignment of judges, sittings of the court and allocation of courtrooms. [270] Apart from those statutory provisions treating permanent and acting Supreme Court judges indifferently, both permanent and acting judges are subject indifferently to the general law and subject to the same duty to apply it. They are subject to the same possibilities and procedures of appeal and the same requirements of impartiality and of apparent impartiality. They must treat all parties equally, and protect the right of the parties to meet the case each is making against the other. They are bound by the same rules of natural justice. They are bound by the same duties to hear cases fairly, find facts accurately, and apply the law, correctly ascertained, to the facts found. [271] In addition, since the work of both permanent and acting judges takes place in public, and since the reasons for judgment of both permanent and acting judges are publicly available, acting judges are equally open to the same scrutiny by their peers, the profession and the public as permanent judges. Both acting and permanent judges share the same professional ethos, tradition and culture. They share the same concern for professional reputation. There is no legislative provision permitting interference by the executive or the legislature in the work of acting judges any more than there is in relation to permanent judges, and there are equally well-established customs precluding interference. It was not suggested by the applicants that the actual process and techniques by which acting judges tackle the issues thrown up for their decision differ from those employed by permanent judges.
Thirdly, the Respondents contended that a similar argument (albeit in a different context) to that advanced by the Applicants failed before the Court of Appeal in the constitutional case of Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240. Relevantly, the Respondents highlighted Basten JA's explanation of the constitutional principles relating to invalidity and the institutional integrity of the Court at [100]-[110] and his Honour's observation at [111] that most of the cases applying the relevant constitutional principles relating to invalidity and the institutional integrity of the Court "…have arisen in respect of the existence or exercise of powers of removal of judges…". Ultimately, although not directly on point, the Respondents suggested that these principles - including the absence of any effect of appointing an acting judge on the institutional integrity of the District Court - might provide some relevant guidance (Transcript, 27 November 2017, p 41).

Apprehended bias

In challenging the Applicants' third ground, the Respondents commenced by arguing that my remarks at [64] of the interlocutory decision do nothing more than recognise the nature of judicial review proceedings, the jurisdiction of the Court and "the role that environmental damage is said to have on the Applicants' version of the case … to the invalidity of those decisions" (Transcript, 27 November 2017, p 44). In support of this, the Respondents made the following points.
First, the Respondents clarified that, contrary to the Applicants' allegation, they have not sought to run a technical case. What the Respondents seeks is for the Court "to adhere to the established understanding of what constitutes legal error for the purposes of relief of the kind sought in judicial review proceedings and this Court's Class 4 jurisdiction" (Transcript, 27 November 2017, p 43).
Secondly, the Respondents submitted that it is clear from the extant Summons and Points of Claim that the present proceedings are judicial review proceedings in which issues such an ongoing environmental loss and damage are extraneous "in the sense [that] these are not issues simpliciter for the Court to determine" (Transcript, 27 November 2017, p 44). That is to say, the Applicants did not identify any ground in the extant Points of Claim in which one of the impugned decisions is said to be invalid simply because there was loss and damage to its property. Hence, whilst the questions of environmental loss and damage may be relevant if these questions can be shown to be mandatory relevant considerations, they are not centrally relevant questions.
Thirdly, the Respondents emphasised the Court's use of the qualifying word "centrally" in [64] and the qualification "(which, to be sure, may affect Yanco Creek and its surrounding environment)".
With respect to the Applicants' arguments pertaining to the passages at [17], [23] and [58] of my interlocutory decision, the Respondents contended that there was no error or anything inappropriate in the Court fixing the matter for hearing on 4 August 2017 in the context of the Respondents not yet having filed their evidence (Transcript, 27 November 2017, p 45). The Respondents submitted that the Applicants did not, at the relevant time, contest that the matter should be fixed for hearing (although they recognised that the Applicants sought dates in 2018). Moreover, the Respondents noted that, contrary to the relevant practice note dealing with case management and designed to ensure just, quick and cheap proceedings, the matter has been before the Court on many occasions over a long period of time (during which time the Court - differently constituted - has, inter alia, refused applications for discovery).
Ultimately, in response to the Applicants' overarching argument of the logical connection between the impugned paragraphs of my interlocutory decision and the applicability of the test in Ebner v Official Trustee in Bankruptcy, the Respondents denied that any logical connection had been established. In particular, the Respondents denied that the Court had demonstrated any commitment to excluding any issues or evidence because the Court has not yet excluded any issues or evidence. Rather, the Respondents submitted that "[y]our Honour hasn't done anything more than identified the central concern of these proceedings".
Finally, the Respondents made a number of submissions concerning relevant apprehension of bias case law. First, the Respondents, referring to Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, cited the statements of principle at [12]-[13] and [53]. In particular, the Respondents stressed the statement at [53] that "[t]he fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality".
Secondly, the Respondents distinguished British American Tobacco Australia Services Ltd v Laurie - which concerned a trial judge in an interlocutory decision: making a finding of (extremely serious) fraud without qualification or doubt and expressing extreme scepticism - on the basis that "the factual circumstances of this case are very different". In fact, the Respondents said that this example of the types of circumstances in which a trial judge has been found to have disqualified himself is of some significance.
Thirdly, the Respondents reiterated that, as confirmed in Alexandria Landfill Pty Ltd v Roads and Maritime Services [2017] NSWLEC 148 at [33], "[t]he hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision".

Costs

The Respondents submitted that it seeks its costs in respect of the Applicants' recusal Notice of Motion. Whilst the Respondents said that the motion is being determined as part of the trial, it submitted that it remains a preliminary issue that could have been ventilated at a significantly earlier point in time (from 9 November 2017).
The Applicants did not seek costs in their Notice of Motion and made no submission as to costs, save to say that the recusal application was made at the appropriate time (Transcript, 27 November 2017, p 49).

Consideration

At the outset, it is important to recognise that the law relating to judicial recusal "rests on the fundamental proposition that a court should be fair and impartial, and that sometimes a judge's personal or prior 'connection' with that case should lead to him or her not sitting on it, notwithstanding the initial lawful allocation": Grant Hammond, Judicial Recusal: Principles, Process and Problems (2009, Hart Publishing) at xi. In other words, "[t]he law relating to recusal deals with the circumstances in which a judge (or other independent decision-maker), acting under legal power, should take no part, or no further part, in a decision or in the steps leading to a decision, although he or she has been initially allocated the matter to decide it": Michael Kirby, "Judicial recusal: differentiating judicial impartiality and judicial independence?" (2015) 4 British Journal of American Legal Studies 1, 2.
In clarifying the nature of their recusal application, the Applicants submitted that "Ebner doesn't inform the answer to our first point" (Transcript, 27 November 2017, p 50) and suggested that their first jurisdictional ground is properly part of the recusal application because the consequence of a finding that I do not have jurisdiction would be that I would make an order recusing myself from the matter (Transcript, 27 November 2017, p 36).
Conversely, the Respondents submitted that "[i]n relation to an apprehension of bias application, Ebner is the critical test and all the grounds will require consideration by reference to the Ebner test".
In this context, I consider that it is not open to the Applicants to, as part of this recusal application, challenge whether or not I have jurisdiction simpliciter.
It is clear that the Applicants' application (by way of Notice of Motion) is for me to make an order recusing myself "from the trial of the matter". The Notice of Motion is not, for example, an application, or separate legal question, concerning whether or not I have jurisdiction to hear and dispose of the matter or whether a relevant provision of the Court Act is invalid because it offends the Constitution.
As put above, the law relating to recusal concerns whether a judge (or acting judge), acting under legal power, should take no further part in proceedings notwithstanding the initial lawful allocation. The law relating to recusal is part of the law of natural justice and, in particular, the rule against bias (see, eg, Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed 2017, Lawbook Co) chapter 9. The law relating to recusal is of a fundamentally different nature to the law relating to whether a decision-maker has jurisdiction under a statute to hear and dispose of a particular matter.
Accordingly, the Applicants' suggestion that a jurisdictional issue simpliciter can be properly part of a recusal application on the basis that if the relevant acting judge is shown not to have jurisdiction, then he or she will recuse themselves from the proceedings is not correct. An acting judge who does not have jurisdiction was never empowered to hear and dispose of the proceedings. Indeed, an acting judge without jurisdiction to hear and dispose of a matter would not have the power to decide a recusal application.
In contrast, an acting judge who offends against the rule against bias has disqualified himself or herself from hearing particular proceedings due to some personal or prior 'connection' that gives rise to actual or apprehended bias. For similar reasons, as submitted by the Respondents, given that the Applicants' application is a recusal application, the accepted principles governing the law of recusal must apply to the whole of the application and not only particular grounds.
On this basis, it is necessary that I consider and determine the Applicants' recusal application, and its three constituent grounds, by addressing the question of whether a fair-minded lay observer might reasonably apprehend - for the three principal reasons the Applicants gave - that I might not bring an impartial mind to the resolution of the question(s) that I will be required to decide. To decide this, it is necessary to, first, consider the matters that the Applicants have identified that might lead me to decide this case other than on its legal and factual merits and, secondly, consider the Applicants' articulation of the logical connection between these matters and the feared deviation.
However, what I am not required to decide is the bare question (divorced from the issue of apprehended bias) of whether I should recuse myself because I do not have lawful authority or jurisdiction under the Court Act to hear and dispose of the matter.

The identification of the matters that might lead me to decide the case other than on its merits

As has been set out in considerable detail above, the Applicants claim that there are three matters that might lead me to decide this case other than on its merits. First, I might decide this case other than on its merits because, as a person appointed to act as a judge, I do not have jurisdiction to hear the trial in these proceedings. Secondly, I might decide this case involving the State other than on its merits because, as a person appointed to act as a judge, I have the potential to be reappointed or permanently appointed by the State. Thirdly, I might decide this case other than on its merits because I have already prejudged the issue of the relevance of the issue of environmental damage in an interlocutory decision and/or prematurely listed the matter for hearing and/or inappropriately excluded potential (relevant) evidence such as potential environmental impact statements.

The logical connection

With respect to the first matter, it is difficult to sensibly apply the second step of the accepted test. Is the argument that I might deviate from deciding the case on its merits because I do not have jurisdiction under the Court Act? If so, why? This demonstrates how the question of jurisdiction is inapt for consideration in a recusal application (as was possibly implicitly recognised by the Applicants in stating that the two-step test does not apply to their first ground).
Put simply, if I do not have jurisdiction, I cannot hear and dispose of the matter regardless of whether or not I might deviate from deciding the case on its merits. Hence, and for the reasons given earlier, I find that there is no logical connection between the first matter identified by the Applicants (the jurisdictional matter) and any feared deviation from the course of deciding the case on its merits.
With respect to the second matter, the logical connection according to the Applicants is that I might harbour a (potentially subconscious) desire to improve my chances of being reappointed as an acting judge or being permanently appointed as a judge by favouring the State in the present proceedings.
With respect to the third matter, the logical connection according to the Applicants is that I might favour the State in the present proceedings because I might have prejudged an important issue in the proceedings adversely to the Applicants; namely, by stating that the issue of environmental damage is not centrally relevant in the proceedings. Similarly, the Applicants appear to contend that I might favour the State in the present proceedings because I might have prejudged other aspects of the substantive proceedings by excluding potential evidence (by setting aside, in part, the First Applicant's Notice to Produce) and by prematurely listing the matter for hearing.

The fair-minded observer

I have concluded that the Applicants have not established that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions in these proceedings that I would be required to decide for the following reasons.
First, the jurisdictional matter raised by the Applicants could not lead a fair-minded observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the proceedings because, as reasoned above, there is no logical or rational connection between the issue of jurisdiction and apprehended bias.
However, even if I am wrong about this, the position would remain the same because (even though the issue of jurisdiction does not fall to be determined in and of itself in a recusal application) the fair-minded lay observer would accept that I do have jurisdiction under the Court Act (by dint of being appointed to act as a judge of the Court) unless there was some evidence to indicate otherwise.
Furthermore, if I was required to answer the legal question raised by the Applicants as to jurisdiction (which, in my view, I am not), then, I would conclude that, as the Respondents argued, s 11(3) of the Court Act stipulates that I, being a person appointed to act as a judge, have and may exercise the functions of a judge and am deemed to be a judge for the purposes of the Court Act. Hence, contrary to the Applicants' claim, for the purpose of s 7 of the Court Act - governing the composition of the Court - I am deemed to be a judge and, therefore, empowered to constitute the Court.
Secondly, the reappointment matter raised by the Applicants could not lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the proceedings. The reason for this is that the fair-minded lay observer would be taken to know (or would at least accept without uneasiness) that: … both permanent and acting judges are subject indifferently to the general law and subject to the same duty to apply it. They are subject to the same possibilities and procedures of appeal and the same requirements of impartiality and of apparent impartiality. They must treat all parties equally, and protect the right of the parties to meet the case each is making against the other. They are bound by the same rules of natural justice. They are bound by the same duties to hear cases fairly, find facts accurately, and apply the law, correctly ascertained, to the facts found. In addition, since the work of both permanent and acting judges takes place in public, and since the reasons for judgment of both permanent and acting judges are publicly available, acting judges are equally open to the same scrutiny by their peers, the profession and the public as permanent judges. Both acting and permanent judges share the same professional ethos, tradition and culture. They share the same concern for professional reputation. There is no legislative provision permitting interference by the executive or the legislature in the work of acting judges any more than there is in relation to permanent judges, and there are equally well-established customs precluding interference. It was not suggested by the applicants that the actual process and techniques by which acting judges tackle the issues thrown up for their decision differ from those employed by permanent judges. (Forge v Australian Securities and Investments Commission at [270]-[271]).
Hence, in the absence of any relevant evidence to suggest otherwise, the fair-minded lay observer could not reasonably apprehend that I might not bring an impartial mind to the resolution of these proceedings against the State simply because I am an acting judge of the Court rather than a judge of the Court.
Moreover, I consider that if the fair-minded lay observer was to consider this matter in the way suggested by the Applicants, they would also be taken to know that (as indicated above) I recently handed down the high-profile decision of Millers Point Community Assoc. Incorporated v Property NSW. Therefore, even if a fair-minded lay observer was to have a reasonable apprehension of this nature in the abstract (which I have concluded is fundamentally erroneous), such an apprehension would be allayed with respect to me.
Finally, I also consider that the fair-minded lay observer could not reasonably apprehend that I might not bring an impartial mind to the resolution of the proceedings because of any concern with the institutional integrity of this Court. In circumstances where there is only one acting judge of the Court (albeit a small court) and I was initially appointed to replace a permanent judge for one year (and have been subsequently reappointed for one year to ensure the full working capacity of the Court), the fair-minded lay observer could have no reasonable apprehension that the Court's institutional integrity might be compromised. As has been recognised, the appointment of acting judges "…can assist the courts, and hence serve the public interest, in significant ways [by, inter alia] strengthen[ing] a bench that is depleted due to temporary illness or unavailability, and may provide a cost-effective way to manage short-term workload pressures": Gabrielle Appleby et al, "Temporary Judicial Officers in Australia" (Report commissioned by the Judicial Conference of Australia, March 2017) at 1.
That is to say, it would be accepted that acting judges - providing the composition of the Court retains its protected character as a Court of predominantly permanent judges - perform their role in the same manner and with the same commitment to impartiality and independence as judges (albeit for a defined temporary period).
Thirdly, I consider that the alleged prejudgment matter raised by the Applicants could not lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the proceedings. I will first consider the critical issue of prejudgment with respect to my reasoning at [64] of the interlocutory decision (which appeared to be the Applicants' focus).
The Applicants are correct that this impugned paragraph concerning the application to amend the extant Summons reveals a view of the Court as to the nature and ambit of the proceedings. However, the Applicants are not correct that the view of the Court revealed is, essentially, a pronouncement from the Court that (in the Applicants' words') "we're only concerned with the legality of decisions". What is said is that "these judicial review proceedings do not centrally concern whether or not the Respondents have caused environmental damage and, if so, how they should be restrained" (emphasis added). This is then immediately followed by the statements that "[r]ather, these judicial review proceedings concern whether or not the Respondents have made particular decisions (which to be sure, may affect Yanco Creek and its surrounding environment) unlawfully by, for example, failing to have regard to mandatory relevant matters for consideration" and "[t]he proposed amendment, therefore, does not pertain to a real question raised or otherwise depending on the proceedings" (emphasis added).
The question is not whether the impugned paragraph discloses a predisposition of the Court or view of the Court (capable of being changed). Instead, the question is: does this paragraph rise so high such that it could indicate to a fair-minded lay person that my mind might not be open to being persuaded that these judicial review proceedings actually centrally concern something other than the legality of the particularised decisions or conduct et cetera? I am of the view that the answer to that question must be no.
Whilst these sentences speak for themselves, a conclusion cannot properly be drawn that the Court has prejudged the proceedings by confining the parameters of its future consideration of the issues in the proceedings to the legality of decisions. At most, the Court has expressed its "tendency of mind" or "predisposition" that these judicial review proceedings - as is traditionally the case with judicial review proceedings - centrally (but not exclusively) concern the legality of particular decisions. (I interpose here to note that the Applicants may well be correct that judicial review is not limited to decisions per se, however, the extant Summons in this case lists seven categories of "decisions" rather than, for example, conduct.)
Nevertheless, the Applicants may persuade the Court during the substantive hearing that these judicial review proceedings (in this respect, the extant Summons is titled "Further Amended Summons (Judicial Review)" and describes the type of claim as "JUDICAL REVIEW and ancillary relief") are actually not centrally about the legality of decisions but, in fact, proceedings which, for example, centrally concern whether or not the Respondents have caused, contrary to law, ongoing environmental damage to Yanco Creek or heritage impacts. Although the Court has not suggested that environmental damage is a "vestigial issue", even if that were so, it is not apparent from the interlocutory decision that I have any such crystallised, permanent view of this nature.
Critically, it cannot be correct that (acting) judges must decide interlocutory applications and proceed to trials with their minds as a blank slate as to the nature and ambit of the proceedings. However, what the Court cannot do is close its mind: Hills Shire Council v Mouawad (2014) 203 LGERA 233; [2014] NSWLEC 59 at [27]. For example, it could have been improper if I had said words to the effect of "environmental damage is not and will not be relevant at all [or must only be of peripheral/secondary relevance] to the determination of these judicial review proceedings because the Minister did not have an obligation to consider this matter in making any of the challenged decisions". On a fair and reasonable reading, that is not at all what is conveyed in the interlocutory decision and is certainly not what I intended to convey.
The present circumstances can be strongly distinguished from those cases in which apprehended bias has been established. In Johnson v Johnson, the plurality noted at [17] that in R v Watson (1976) 136 CLR 248; [1976] HCA 39, the judge "had stated categorically, at commencement of the trial, that his opinion of the parties was such that credit was a 'non-issue', and that he would not believe either of them unless his or her evidence was corroborated".
Similarly, in British American Tobacco Australia Services Ltd v Laurie, the judge's "finding of fraud was otherwise expressed without qualification or doubt … was based on actual persuasion of the correctness of the conclusion" and the judge "did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubts about the possibility of different materials explaining the difficulties experienced by the judge" (at [145]).
Here, as the Respondents submitted, I did not make any (concluded) finding or determination of a contested issue between the parties as to the nature and the ambit of these proceedings. Rather, my predisposition in considering the interlocutory application based on the submissions of both the Applicant and the Respondents was my understanding (which I mistakenly understood to be uncontroversial between the parties) that these judicial review proceedings centrally concern the legality of decisions. In my view, this predisposition was not unreasonable in all of the circumstances and was not expressed in a way (or, at the very least, not intended to be expressed in a way) that indicated the Court's mind was settled or entrenched in this respect.
It must be remembered that the context of the relevant sentences of the interlocutory judgment was the consideration of, inter alia, an interlocutory application to amend the extant Summons based on quite limited submissions shortly before the commencement of the trial. It is open, and perhaps not uncommon, for a Court to give one of a number of reasons for deciding an interlocutory application without binding itself to that view in the different context of the final trial. A clear example of this is a proceeding concerning an interlocutory injunction. If a Court grants an interlocutory injunction because it is persuaded of certain matters (or takes a view as to the central concerns of the case), it does not follow that they have prejudged the case of whether to permanently grant an injunction at a later date (or prejudged what will ultimately be the central concerns of the case).
With respect to the Applicants' submissions concerning the fixing of the hearing dates and my decision regarding the Notice to Produce to Court, I find that these matters (independently or cumulatively) could not lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the proceedings.
On 4 August 2017, I fixed the dates of the hearing in these proceedings. This was at a point well beyond the normal point in judicial review proceedings at which hearing dates would be fixed. Whilst the Applicant expressed its preference for dates in 2018, it certainly did not strenuously object to the hearing being listed in November or subsequently seek to change the listing in light of, for example, the Respondents' evidence. Moreover, the fair-minded lay person would be aware that I expressed a reason for fixing the hearing dates as being a concern (directed at both parties) as to the unusually slow progression of the case. The fair-minded lay person would not be surprised that, consistently with the overriding purpose of civil litigation, courts endeavour to ensure the efficient administration of justice in a manner that may not accord with the preferences of one or both parties. Accordingly, it is very difficult to see how a fair-minded person could possibly apprehend from this circumstance that I might not be impartial.
Similarly, my decision on the Notice to Produce to Court was, contrary to the Applicants' suggestion, not a decision to exclude evidence or confine the ambit of the Applicants' case. As is clearly expressed in the interlocutory decision, the decision to set aside, in part, the Notice to Produce to Court was made because, in my view, the Notice to Produce to Court did not accord with the well-established tests. That is to say, I was not satisfied, inter alia, that the Applicant established that the Notice to Produce to Court disclosed a legitimate forensic purpose for most of the categories of documents that it sought. The Applicants may cavil with the merits of my decision in this respect and seek leave to appeal it. However, this is clearly not a determination of what evidence is or is not ultimately admissible in the proceedings. No fair-minded lay person could possibly reasonably apprehend that I might not decide the case impartially merely because I decided this procedural issue against the Applicant.
For all of the above reasons, my decision is that the Applicants have not established that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions in these proceedings. Accordingly, I will dismiss the Applicants' Notice of Motion.

Costs

As recorded above, the Respondents expressly sought a costs order in the event that the Applicants' Notice of Motion was dismissed and this submission went unchallenged by the Applicants.
The general rule for costs relating to a notice of motion in Class 4 proceedings is that if the Court is to make any order as to costs, costs follow the event unless it appears to the Court that some other order should be made.
I agree with the Respondents that the motion before the Court constituted a confined preliminary issue warranting a costs order and I consider that the general rule applies and that, therefore, the Applicants should pay the Respondents' costs of the motion.

Orders

The Court makes the following orders: 1. The Applicants' Notice of Motion filed 27 November 2017 is dismissed; 2. The Applicants are to pay the Respondents' costs of the Notice of Motion as agreed or assessed; and 3. The matter is listed for a directions hearing before Molesworth AJ on 16 February 2018.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2017

(2014) 203 LGERA 233

(2017) 224 LGERA 407

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