Willoughby City Council v Finlay

Director General Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd [2009] NSWLEC 228 CASES CITED: Nicholls v Michael Wilson and Partners Ltd [2010] NSWCA 222 Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163

PROSECUTOR: Mr T Howard, barrister SOLICITORS: Mallesons Stephen Jacques LEGAL REPRESENTATIVES: DEFENDANT: Mr M Arch SOLICITORS: Concordia Pacific

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 HIS HONOUR: When this sentencing matter was called on for hearing this morning the defendant applied, without prior notice, for me to disqualify myself on the ground of apprehended bias, due to findings of fact and credibility I made in a companion case favourable to the principal of the defendant in the companion case who is to be called as a prosecution witness in this case. His evidence will be strongly contested by the defendant in the present case who had no opportunity to give evidence in the earlier case, and will bear on the resolution of material issues. I have decided that I should accede to the application.

2 Two observations may be made before I explain my reasons. The first concerns the desirability of giving notice of a recusal application as soon as possible. Although the defendant was unaware that I was assigned to hear this case until late yesterday afternoon when the Court list was published, notice of the application could have been given earlier than it was. The application for disqualification could then have been listed before 10am and, if it had been decided favourably to the defendant, arrangements might have been made for another judge to hear the case today. Because the application was not notified or made until 10am, it has been impracticable to make arrangements for the case to proceed forthwith before another judge.

3 The second observation is that this matter throws up the desirability of companion sentencing hearings on prosecutions of different defendants arising out of the same circumstances being heard together, with evidence in one case to be evidence in the other, where there are likely to be evidentiary contests between the defendants. That would avoid not only the potential for a recusal application but the spectre of potentially inconsistent findings because of different evidence at two hearings. In the present case the circumstances go a long way towards explaining why that did not happen: the defendant in the companion case originally pleaded not guilty whereas the defendant in the present case pleaded guilty; therefore there had to be two hearings. However, the defendant in the earlier case eventually did plead guilty. The prosecutor frankly offers the comment that there was then an opportunity to bring the hearing of the two cases together. With the benefit of hindsight, that may have been so.

5 This prosecution relates to unlawful demolition of a building by a contractor, BCPD Pty Ltd, whose principal was Mr Mayhew. The defendant, Ms Finlay, was the architectural designer retained by the owners. The charge is that she authorised the unlawful demolition. In a companion prosecution against BCPD, I convicted BCPD, fined it $30,000 and ordered it to pay the prosecutor's costs agreed at $45,000: Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163. I made a finding, on the evidence before me, that Mr Mayhew was misled by Ms Finlay in material respects: at [35] - [36]. Mr Mayhew is to be called by the prosecution in the present case but Ms Finlay was not called to give evidence in the earlier case. Therefore she had no opportunity to contest the evidence of misleading conduct in the earlier case.

6 In the present case, there is a submission by the prosecutor that Ms Finlay engaged in misleading conduct, which the prosecutor's submissions characterise as deceitful, in not disclosing material matters to the prosecutor/consent authority nor to the principal certifying authority. In addition, it is virtually certain that there will be a contest between Ms Finlay and Mr Mayhew as to whether she did engage in the misleading conduct towards him, as I found in the earlier proceedings. Of course, all issues will be resolved on the evidence in the present case and not on the basis of any finding made on different evidence in the earlier case. Nevertheless, alleged misleading conduct by Ms Finlay is in issue in the present case in at least the two respects to which I have referred and Mr Mayhew's evidence will or is likely to be relevant in both respects. In the circumstances, the defendant submits that there is an apprehension of bias because I have accepted in the earlier proceedings the evidence of Mr Mayhew in relation to alleged misleading conduct by Ms Finlay.

7 In Director General Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd [2009] NSWLEC 228, in which I refused to disqualify myself from hearing a sentencing matter, I addressed the principles relating to apprehended bias at [6] - [9]: "6 The test of apprehended bias was stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6-7] (omitting citations): `6 …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 question is one of possibility (real and not remote), not probability.'

7 The hypothetical fair-minded lay observer is one who is properly informed but is not presumed to have a detailed knowledge of the case: Johnson v Johnson [2000] HCA 48, 201 CLR 488 at [13].

8 In Australian National Industries Ltd v Spedley Securities Limited (in liq) (1992) 26 NSWLR 411, the Court of Appeal by majority found that the trial judge, having heard the first of a number of related proceedings, should not hear any further proceedings. The further proceedings raised the same issues which depended or might depend upon the evidence of the same witnesses in respect of whom the judge had made adverse findings either of fact or upon their credit or had commented adversely upon their recollection or commercial integrity: at 426 and 432. Mahoney JA who was one of the majority said that he confined what he had to say to the issues of fact and credibility of the kind there in question: at 437. It is in that context that his Honour's later statement is to be understood that there would be an unacceptable appearance of pre-judgment if the judge previously dealt with the issue of fact or credibility which would be before him in the subsequent case: at 438.

9 As Rothman J said in Abraham as Tutor for Abraham v St Marks Orthodox Coptic College (No 4) [2008] NSWSC 1031 at [26], Australian National Industries Ltd v Spedley involved a series of cases in which identical issues arose and in which in the first such case the judgment depended on adverse findings on the credit of witnesses involved in the corporation. That finding was central to the judgment and all other proceedings depended on the same evidence from the same witnesses called by the corporation." 8 In Nicholls v Michael Wilson and Partners Ltd [2010] NSWCA 222 the Court of Appeal held that the primary judge had erred in rejecting an application for recusal. It was held at [3] - [4]: "[3] So stated, the approach required to be applied by the court is a relatively undemanding one: that is because of the value placed by the law on not merely the fact, but the perception, that judges will determine cases on the material before them, uninfluenced by extraneous views, namely views formed otherwise than in the ordinary course of the trial, hearing from the parties on both sides of the record, and based on admissible evidence. On the other hand, the administration of justice would soon become unmanageable if judges were too readily disqualified because of pre-trial judgments, adverse to the interests of a particular party. The answer in a particular case will depend on the nature of the decision being made and the surrounding circumstances, a position which gives rise to important questions as to the knowledge and understanding of the proceedings which must be attributed to the hypothetical fair-minded lay observer.

[4] As explained by Allsop P in British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414 at [5]: 'The fictitious 'fair-minded lay observer' and what he or she might think is a mechanism deployed by the courts for protecting the respect and integrity of the judicial system through a test employing a reasonable member of the public. That test involves an evaluation by judges as to how the public, through the posited 'fair-minded lay observer', would view the working of the legal system in the particular instance under consideration.'" 9 The present case raises either the same or closely related issues which depend or might depend upon the evidence of Mr Mayhew in respect of whom I have made favourable findings of fact or credibility in the earlier proceedings. His evidence will be challenged by Ms Finlay but was not open to challenge by her in the earlier proceedings. His evidence is relevant to the state of mind of Ms Finlay and, she says, will go also to the question of her control over the causes of the offence. In my opinion, the circumstances are sufficient to attract the principles relating to apprehended bias. 10 Consequently, I disqualify myself from hearing this matter. I direct the parties to proceed forthwith to the registry to obtain a new hearing date not before me.

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