Pacific Cinemas (Canberra) Pty Ltd v The Administrative Appeals Tribunal and Commissioner for Land & Planning and Lend Lease Property Management (Australia) Pty Ltd [1999] ACTSC 15 (9 March 1999)

Last Updated: 17 June 1999

PACIFIC CINEMAS (CANBERRA) PTY LTD v THE ADMINISTRATIVE APPEALS TRIBUNAL and COMMISSIONER FOR LAND & PLANNING and LEND LEASE PROPERTY MANAGEMENT (AUSTRALIA) PTY LTD

[1999] ACTSC 15 (9 March 1999)

CATCHWORDS

BIAS - Disqualification for - President of AAT previously acted as Chief Solicitor for respondent when applicant commenced proceedings in AAT - President had no knowledge or involvement in matter as Chief Solicitor - Whether President should disqualify himself from hearing proceedings - Whether actual or perceived bias - Whether real possibility of reasonable perception of pre-judgment or bias by fair-minded observer.

BIAS - Disqualification for - President of AAT previously acted as Chief Solicitor for respondent when applicant commenced proceedings in AAT - Whether President should disqualify himself from hearing proceedings - Rulings on questions of law to be decided by legally qualified member under AAT Act - President only legally qualified Tribunal member - "Necessity" principle applicable to prevent frustration of statutory provision - President excused from disqualification - ss 20, 20A Administrative Appeals Tribunal Act 1989 (ACT).

Administrative Appeals Tribunal Act 1989 (ACT), ss15(1), 20, 20A

Administrative Decisions (Judicial Review) Act 1989 (ACT), s6

Government Solicitor Act 1989 (ACT), s5(4)

Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at 294, applied

Webb v R [1994] HCA 30; (1994) 181 CLR 41, at 74, applied

Re Polites; Ex parte The Hoyts Corporation Pty Limited [1991] HCA 31; (1991) 173 CLR 78, at 87-88, 91, applied

Fingleton v Christian Ivanoff Pty Ltd [1976] 14 SASR 530, considered

Falconer v Howe and Baker [1978] WAR 81, considered

R v Moss; Ex parte Mancini [1982] 29 SASR 385, considered

R v His Honour Judge Anderson; Ex parte Carmelo Ioppolo (1979) 5 Fam LR 305, considered

R v Cavit; Ex parte Rosenfield (1985) 73 FLR 385; 33 NTR 29, considered

R v Garrett [1988] 50 SASR 392; 40 A Crim R 213, considered

Carindale Country Club Estate Pty Ltd v Astill [1993] FCA 218; (1993) 42 FCR 307; 115 ALR 112, referred to

Dimes v Grand Junction Canal Proprietors (1852) 3 HL Cas 759, applied

Builders' Registration Board of Queensland v Rauber (1983) 47 ALR 55, at 71-73, applied

No. SC 895 of 1998

Coram: Higgins J

Supreme Court of the ACT

Date: 9 March 1999

IN THE SUPREME COURT OF THE )

) No. SC 895 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PACIFIC CINEMAS (CANBERRA) PTY LTD ACN 810 881 179

Applicant

AND: THE ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

AND: COMMISSIONER FOR LAND & PLANNING

Second Respondent

AND: LEND LEASE PROPERTY MANAGEMENT (AUSTRALIA) PTY LTD ACN 002 894 153

Third Respondent

ORDER

Judge Making Order: Higgins J

Where Made: Canberra

Date of Order: 9 March 1999

THE COURT ORDERS THAT:

1. The application be dismissed.

1. This is an application for an order of review of a ruling made by the President of the Australian Capital Territory Administrative Appeals Tribunal (AAT), Mr M H Peedom, in the course of proceedings in the Tribunal to which the applicant, Pacific Cinemas Pty Ltd (Pacific) is a party.

2. Although described as a "decision" in its application for review, Pacific concedes that, for the purposes of the Administrative Decisions (Judicial Review) Act 1989 (ACT), the ruling is to be characterised as "conduct for the purpose of making a decision" and amenable to review under s 6 rather than s 5 (review of "decisions").

3. The history of the matter is not in dispute. The applicant has sought, in matter AT98/126, review of a decision made by the Commissioner for Land and Planning (the Commissioner) on 15 September 1998. Pacific had objected to a development application by the third respondent (Lend Lease) to consolidate two Crown leases and to vary some purposive and gross floor area provisions otherwise applicable. The application was dated 7 October 1998. I assume service of the application occurred shortly thereafter on the Commissioner. A file was opened in the Office of the ACT Government Solicitor on 23 October 1998. The Office had been instructed by the Commissioner to act on his behalf on 22 October 1998.

4. On 26 October 1998, the then President of the AAT, Professor L J Curtis, ordered Lend Lease to be joined as a party and listed the matter for further directions on 11 November 1998. An issue was raised by Lend Lease as to whether Pacific had standing to apply for review of the Commissioner's decision.

5. Until 10 November 1998, Mr Peedom had been the Chief Solicitor for the Australian Capital Territory. That office is a statutory one under the Government Solicitor Act 1989 (ACT). It is unnecessary to go to the terms of that Act. Mr Peedom did so in his ruling which is under challenge. He acknowledges that the receipt of instructions from the Commissioner and the opening of the file and some preparation of the matter by the solicitor with conduct of it occurred whilst he was Chief Solicitor. The officer in question, Mr A Anastasi, was, Mr Peedom also acknowledged, responsible to him until Mr Peedom's appointment as President of the AAT.

6. However, Mr Peedom also stated, and the parties accept this unreservedly, that he had no personal knowledge of, or involvement in, the matter prior to his current appointment.

7. Mr Peedom became aware of the matter only during a briefing on applications then before the AAT given to him by his predecessor, Professor Curtis, on 10 November 1998.

8. Mr Anastasi was given some advice and direction about the matter from Dr D Jarvis, then acting counsel in the Office, subsequently acting Deputy Chief Solicitor. He was directed by Dr Jarvis to attend the hearing scheduled for 11 November 1998 and to "make appropriate submissions as to standing". Dr Jarvis was not able personally to appear in the AAT that day.

9. On 5 November 1998, Mr Anastasi sought instructions from the Commissioner to make submissions concerning Pacific's standing. He obtained those instructions, though the content has not been revealed to date. That is, of course, entirely appropriate.

10. On 11 November 1998, Mr Peedom drew the attention of the parties to the fact that, though he had no personal knowledge of the matter, he had, up until 9 November 1998 inclusive, been nominally the Solicitor for the Commissioner in that solicitors responsible to him until that time had the carriage of the matter. The "Government Solicitor" is nominally on the record for the Commissioner. It is a body corporate. The Chief Solicitor is the most senior officer within that corporation.

11. The acts done by the ACT Government Solicitor through Dr Jarvis and Mr Anastasi, though they were accountable to Mr Peedom for them until 9 November 1998, were, presumably, done pursuant to a general authorisation given by Mr Peedom pursuant to s 5(4) of the Government Solicitor Act 1989 (ACT). There was no specific authority or direction given by Mr Peedom in relation to Pacific's application before he relinquished the office of Chief Solicitor.

12. At the directions hearing, having acquainted the parties with the substance of the matters referred to above, the learned President asked them if there was any objection to him undertaking the hearing of the matter. Neither the Commissioner nor Lend Lease had any objection. Pacific reserved its position.

13. The President then indicated that he would continue to hear the matter. On 7 December 1998, after correspondence between Lend Lease and Pacific through their respective solicitors, Pacific indicated that it would object to Mr Peedom hearing the matter.

14. That application was heard on 14 December 1998. It was opposed by the other parties. On 15 December 1998, the President ruled that he would not disqualify himself and published his reasons for doing so.

15. In those reasons the learned President, correctly in my view, accepted that the rules of natural justice applied. Those rules included those requiring a decision maker to refrain from embarking on a hearing if bias could be attributed to him or her, either actually or as perceived by an informed bystander. It was accepted that the President had no personal interest in the proceedings in question such as might require disqualification pursuant to s 15(1) of the Administrative Appeals Tribunal Act.

16. The parties are not in dispute as to the test to be applied. It is that referred to by the learned President in the quotation he made from Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294:

"If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."

17. The learned President also reminded himself of the explanation of the doctrine of disqualification for appearance of bias given by Deane J in Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 74:

"The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first...and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third...and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias."

18. The learned President correctly perceived that the objection raised by Pacific was by reason of association rather than any other cause.

19. He characterised his past association with the Commissioner as that of having previously acted as solicitor for one of the parties before his appointment. The case most in point was that of Re Polites; Ex parte The Hoyts Corporation Pty Limited [1991] HCA 31; (1991) 173 CLR 78.

20. In that case, Mr Deputy President Polites had, as a solicitor, between July and August 1986, advised Hoyts concerning submissions it should make and tactics it should pursue in relation to awards which might be made applicable to its employees, in order to avoid or minimise its labour costs. There were negotiations then underway with the relevant union concerning a proposed industrial agreement and the advice related to the conduct of those negotiations.

21. There were, subsequently, proceedings before the Australian Industrial Relations Commission (AIRC). They arose out of a dispute between Hoyts and the Union. Mr Polites was assigned as a member of the bench to hear the dispute in 1989. It was the Union's contention that in 1988 and up to the hearing, Hoyts was utilising the advice given by Mr Polites in 1986, hence he should disqualify himself. He did so. Hoyts sought to set aside that disqualification.

22. Brennan, Gaudron and McHugh JJ pointed out, at 87, that members of the AIRC would typically have had previous involvement professionally with governments, unions or employers. They will typically have had an "industrial background" and, perhaps, particular attitudes to the exercise of the AIRC's powers.

23. At 87-8, their Honours expressed the test in the following terms:

"A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination."

24. The President acknowledged that his association with the Commissioner as the latter's solicitor had been not brief, as in Mr Polites' case, but ongoing since 1996 when the Commissioner's office was constituted by legislation.

25. Nevertheless, the length of the solicitor/client relationship was not the critical issue in Polites' case. Nor was it the reason Mr Polites disqualified himself. He did so because, in his view, his advice "may" have become relevant as an issue in the proceedings.

26. Their Honours in Polites' case disagreed. They considered, at 91, that:

"The position in 1986, at least so far as concerned those giving the advice, was that a new employment situation was about to occur which, according to their instructions, was different from the situation generally obtaining in the industry. In that context, the advice merely detailed available negotiating options. In particular, it carried no recommendation as to the wisdom, reasonableness or appropriateness of the course of action indicated, whether generally or in the limited circumstances in which that advice was given. In the light of these considerations and the fact that appointees to the Commission will often have had a close association with parties before, or with issues to be determined by, the Commission, it would not be open to the parties or to a member of the public to entertain a reasonable apprehension that, ... Mr Deputy President Polites might not bring an impartial and unprejudiced mind to the assessment of the prosecutors' conduct in 1988 or to the determination of appropriate wages and conditions ..."

27. However, it will be noted that, in giving advice, Mr Polites had done so as a member of a legal firm. It was not suggested that Hoyts was represented by that firm in the 1989 proceedings. Mr Polites was appointed before those proceedings were commenced in the AIRC.

28. Thus, the analogous question in the present case is not whether any specific advice of Mr Peedom is "a live issue" in the AAT proceedings, but rather whether his position as Chief Solicitor at the time the ACT Government Solicitor became the solicitor for the Commissioner in the very proceedings before the AAT over which, as President, Mr Peedom proposes to preside, is such a conflict of interest as to require disqualification.

29. The learned President adverted only to the question of his advice, if any, relevant to the application of Pacific. Clearly, there was none. The reasonable bystander would accept that. The mere fact that the Commissioner, whoever occupied the office, had been a regular client of the ACT Government Solicitor would not be cause for disqualification. The hypothetical bystander would understand that the question is whether he or she would consider it inappropriate for the President to preside over a matter for which he had had administrative responsibility and ultimate accountability, though having no actual prior knowledge of the matter or involvement in it.

30. It is no different from a situation in which a senior member of a firm of solicitors, having been appointed to judicial office, is asked to adjudicate upon a matter which had been ongoing at the time when he or she was a member of that firm, though he or she had no personal knowledge of or involvement with it.

31. In Fingleton v Christian Ivanoff Pty Ltd [1976] 14 SASR 530, the Full Court of the Supreme Court of South Australia found that the fact that the State Crown Solicitor was the administrative head of both prosecutors and magistrates did warrant disqualification of magistrates in cases prosecuted before them for the Crown. That was notwithstanding that the Crown Solicitor had never, nor ever intended, to give any direction to magistrates. It was the apparent affront to judicial independence which warranted that course.

32. A different result followed in Falconer v Howe and Baker [1978] WAR 81. Again, magistrates and prosecutors were part of the same administrative hierarchy. Nevertheless, that was not deemed sufficient for a suspicion of bias. There were, in contrast to Fingleton's case, statutory instruments considered to authorise prosecutors to appear before magistrates notwithstanding the apparent conflict. It was, of course, a current relationship.

33. That distinction was recognised in R v Moss; Ex parte Mancini [1982] 29 SASR 385, (King CJ, Jacobs, Mohr and Matheson JJ, Wells J dissenting). There the common membership of magistrates and prosecutors of the Attorney-General's Department would have warranted disqualification for bias in matters involving both, but for statutory authority.

34. Professional involvement with the matter in question is a different form of association.

35. In R v His Honour Judge Anderson; Ex parte Ioppolo (1979) 5 Fam LR 305, the Full Court of the Supreme Court of Western Australia did not consider that a judge should disqualify himself because a litigant had been a client of his former firm, albeit at a time when he had been a member of it. The party had never consulted the judge. The prior matters had not been matrimonial.

36. The latter is a distinction which was regarded as of significance, though it cannot be concluded that the opposite result would certainly have followed had the prior instructions to other members of the firm been matrimonial.

37. R v Cavit; Ex parte Rosenfield (1985) 73 FLR 385; 33 NTR 29, is a more obvious case. A Crown Prosecutor was granted leave. Whilst on leave he was appointed an acting magistrate. Nader J considered it critical in finding a perception of bias that, although there was no actual conflict in relation to the particular matter, the continuing real and significant connection with the prosecution required disqualification. The former prosecutor would, probably, return to prosecute after ceasing to act as a magistrate. The prior relationship would not be perceived as permanently ended.

38. By way of contrast, in R v Garrett [1988] 50 SASR 392; 40 A Crim R 213, a trial judge had, as Solicitor-General, appeared for the Crown on appeals brought by the accused against earlier convictions in factually unrelated matters, though some had involved charges of a similar character. Before the Full Court (King CJ, Jacobs and von Doussa JJ), a ground of appeal raised a question as to perception of bias. However, in the relevant matters in which the former Solicitor-General had appeared, only questions of law had been involved. There was no perception of any "personal view" of the case.

39. Von Doussa J noted that the role of a barrister is to represent a party impartially and without expressing a personal view, though, as King CJ noted, whether such a past role required disqualification depends on the circumstances.

40. It would, I think, be more difficult to avoid disqualification in the latter case if the judge had personally prosecuted the criminal trial, even though the then current matter was different from that prior matter.

41. In the present case, the fair-minded lay observer would, I think, wonder whether those who had carriage of the matter might not have relied upon previous advice and directions from Mr Peedom in relation to such matters, at least up until 9 November 1998. Thus it seems to me that the relationship between Mr Peedom and the matter in question was such as would require him to have disqualified himself, though as actual bias is not suggested, he might be excused by necessity or waiver from doing so.

42. I would think that it would be no answer to a charge of conflict of interest, a related topic, for a private solicitor in a large firm to say that, although another member acted for his client's opponent, he had no actual knowledge of the file in question. Nor would such a plea succeed even if it was asserted that the file had been or would be protected from access by some procedure such as a "Chinese wall": see, for example, Carindale Country Club Estate Pty Ltd v Astill [1993] FCA 218; (1993) 42 FCR 307; 115 ALR 112.

43. In my view, it follows, therefore, that Mr Peedom was not correct to conclude as he did as to the perception of bias by a fair-minded observer. It is the relationship to the particular matter, not merely the particular client, which is significant. Further, as the advice given in relation to this matter is, properly, the subject of legal confidentiality, it is impossible to know that it is not based on the recent advices, or directions, of Mr Peedom when Chief Solicitor. For both of those reasons it seems to me there would be a perception of bias.

The "necessity" principle

44. Counsel for Lend Lease submitted that, even if the President should have upheld the submission as to perception of bias, that did not entail his disqualification.

45. That argument was supported by reference to s 20A of the AAT Act:

"(1) The Tribunal may, of its own motion or on application by a party, request the President to reconstitute the Tribunal to give a ruling on a question of law or on a question that, in the opinion of the requesting Tribunal, is a question of law."

46. Subsection (4) limits the composition of such a Tribunal to:

"(a) the President;

(b) the Deputy President;

(c) a senior member who is enrolled as a legal practitioner ... for not less than 5 years."

47. It was agreed that, presently, the President is the only legally qualified member. There is no Deputy President.

48. Pacific points out that s 20A is not mandatory. Thus, even though the standing issue is, no doubt, a question of law or, at least, involves such a question, the President could exercise his powers under s 20 to refer the matter to a Tribunal constituted by members other than himself.

49. It was conceded by Pacific that the thrust of s 20A is such that it supports a view that it will usually be desirable for questions of law to be determined by a member with legal qualifications. It is clearly the intent of s20A that that should be so.

50. Certainly, if the potentially disqualified officer is the only one who may perform a judicial or quasi-judicial function, necessity will excuse the officer from disqualification, at least where no actual bias is present: see Dimes v Grand Junction Canal Proprietors (1852) 3 HL Cas 759.

51. The necessity principle was discussed by Brennan J in Builders' Registration Board of Queensland v Rauber (1983) 47 ALR 55 at 71-73.

52. Of significance in deciding this question is the perceived intention of the legislature. Brennan J, at 72, particularly noted:

"... the operation of the rule is limited to what is necessary to prevent a failure of justice or the frustration of a statutory provision."

53. That places in context his Honour's observation at 73:

"Of course, if there is an alternative tribunal available to exercise the relevant power, there is no room for invoking the exception of necessity."

54. In this case, it seems to me that the statute contemplates that questions of law be decided by legally qualified members. It would frustrate the purpose of that provision if the President was to refer this matter to an unqualified member.

55. Further, that question of law, itself, does not determine the merits of the matter. Whether necessity would permit the substantive application to be heard by the President or by a Tribunal including the President, does not arise for decision at the present time.

56. It follows that the application will be dismissed.

57. I will hear the parties as to costs.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins

Associate:

Date: 10 March 1999

Counsel for the applicant: Mr A J H Morris QC

Instructing solicitors: Minter Ellison

Counsel for the third respondent: Mr G Flick SC

Instructing solicitors: Freehill Hollingdale & Page

Date of hearing: 3 February 1999

Date of judgment: 9 March 1999

Date of reasons for judgment: 10 March 1999