McGOVERN v KU-RING-GAI COUNCIL [2008] NSWCA 209 (1 September 2008)

NEW SOUTH WALES COURT OF APPEAL

CITATION:
McGOVERN v KU-RING-GAI COUNCIL [2008] NSWCA 209
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40103/07
40114/08

HEARING DATE(S):
30 June 2008

JUDGMENT DATE:
1 September 2008

PARTIES:
David McGovern and Roslyn McGovern (Appellants)
Ku-ring-gai Council (First Respondent)
M Allan (Second Respondent)

JUDGMENT OF:
Spigelman CJ Basten JA Campbell JA

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
LEC 40607/05

LOWER COURT JUDICIAL OFFICER:
Pain J

LOWER COURT DATE OF DECISION:
20 February 2007; 11 February 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
[McGovern v Ku-ring-gai Council] [2007] NSWLEC 22;
[McGovern v Ku-ring-gai Council (No. 2)] [2008] NSWLEC 50

COUNSEL:
F M Douglas QC/K Connor SC/A J O’Brien (Appellants)
Dr J Griffiths SC/Ms M Allars (First Respondent)
P McEwan SC (Second Respondent)

SOLICITORS:
Bradfield & Scott (Appellants)
Deacons (First Respondent)
Harris Friedman Hyde Page (Second Respondent)

CATCHWORDS:
ADMINISTRATIVE LAW – bias – distinction between acts of prejudgment and conflicts of interest – test for prejudgment – whether local councillors incapable of persuasion
ADMINISTRATIVE LAW – bias – test for reasonable apprehension of bias – differences in application of test to judicial and administrative decision-makers – statutory context of decision-making process – level of knowledge of fair-minded observer – whether local council acting as consent authority created reasonable apprehension of bias – whether conduct of council officer created reasonable apprehension of bias – whether councillors formed views after consideration of available information– [Local Government Act] 1983 (NSW) ss 8, 232, Chapter 7 – [Environmental Planning and Assessment Act] 1979 (NSW) s 79C
ADMINISTRATIVE LAW – procedural fairness – whether objector to development application entitled to procedural fairness
ADMINISTRATIVE LAW – validity of decision-making process – whether decision invalid if member of collegiate decision-making body tainted by apprehended bias – characteristics of collegiate decision-making bodies – “but for” test
COSTS – discretion to award – order as to costs in unresolved part of proceedings relating to previous development application – whether unsuccessful applicant pays two sets of costs – respondents joined in similar interest – where one respondent is decision-maker – [Civil Procedure Act] 2005 (NSW) ss 64(3), 98 – [Courts Legislation Amendment Act] 2007 (NSW) Schedule 6[28] – [Land and Environment Court Act] 1979 (NSW) s 58(3)(c) – Uniform Civil Procedure Rules 2005 (NSW) r 42.1, Schedule 6, cl 15
LOCAL GOVERNMENT – building control – development applications – how development application must be made – whether substantial compliance with statutory requirements – whether irrelevant considerations taken into account – documents and information required for development application – requirements of development control plans – [Environmental Planning and Assessment Act] 1979 (NSW) s 78A, 79C – Environmental Planning and Assessment Regulation 2000 (NSW) cll 50, 51, Schedule 1, Part 1, cll 1, 2
LOCAL GOVERNMENT – regulation and administration – powers, functions and duties of local council – whether decision by local council granting development consent invalidated by reason of apprehended bias – whether councillors formed views after consideration of available information – whether communications between councillors and agent of applicant created apprehension of bias – whether conduct of council officer created apprehension of bias – [Local Government Act] 1983 (NSW) ss 8, 232, Chapter 7
STATUTORY INTERPRETATION – whether requirements for valid development applications mandatory – standard of compliance with statutory requirements – [Environmental Planning and Assessment Act] 1979 (NSW) s 78A – Environmental Planning and Assessment Regulation 2000 (NSW) cll 50, 51, Schedule 1, Part 1, cll 1, 2
WORDS & PHRASES – “fair-minded observer” – “reasonable apprehension of bias”

LEGISLATION CITED:
[Administrative Decisions (Judicial Review) Act] 1977 (Cth), s 6
[Courts Legislation Amendment Act] 2007 (NSW), Schedule 6 [28]
[Civil Procedure Act] 2005 (NSW), ss 10, 64, 98, Parts 3-9, Schedule 6, cll 15, 17
[Environmental Planning and Assessment Act] 1979 (NSW), ss 5, 77, 78A, 78C, 79C
Environmental Planning and Assessment Regulation 2000 (NSW), cll 50, 51, Schedule 1, Part 1, cl 2
[Land and Environment Court Act] 1979 (NSW) ss 58, 69
[Local Government Act] 1993 (NSW), s 8, 232
[Local Government Act] 1960 (WA), s 174
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

CATEGORY:
Principal judgment

CASES CITED:
[Australian National Industries Ltd v Spedley Securities Ltd (In liq)] (1992) 26 NSWLR 411
[Baker v Canada (Minister of Citizenship and Immigration)] [1999] 2 SCR 817
[Botany Bay City Council v Remath Investments No. 6 Pty Ltd] [2000] NSWCA 364; 50 NSWLR 312
[Builders’ Registration Board of Queensland v Rauber] (1983) 57 ALJR 376
[Briginshaw v Briginshaw] [1938] HCA 34; 60 CLR 336
[Calvin v Carr] [1979] UKPC 1; [1980] AC 574; [1979] 1 NSWLR 1
[Cooper v Wilson] [1937] 2 KB 309
[Corporation of the City of Enfield v Development Assessment Commission] [2000] HCA 5; 199 CLR 135
[Cranky Rock Road Action Group Inc v Cowra Shire Council] [2006] NSWCA 339; 150 LGERA 81
[Craddock v Davidson] [1929] St R Qd 328
[Dickason v Edwards] [1910] HCA 7; 10 CLR 243
[Ebner v Official Trustee in Bankruptcy] [2000] HCA 63; 205 CLR 337
[Ethell v Whalan] [1971] 1 NSWLR 416
[F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2)] [2007] NSWLEC 537; 158 LGERA 250
[Frome United Breweries Company Ltd v County Borough of Bath] [1926] AC 586
[Helman v Byron Shire Council] (1995) 87 LGERA 349
[Hot Holdings Pty Ltd v Creasy] [2002] HCA 51; 210 CLR 438
[IW v The City of Perth] [1997] HCA 30; 191 CLR 1
[John v Rees] [1970] Ch 345
[Johnson v Johnson] [2000] HCA 48; 201 CLR 488
[JRL; Ex parte CJL] [1986] HCA 39; 161 CLR 342
[Kindimindi Investments Pty Ltd v Lane Cove Council] [2006] NSWCA 23; 143 LGERA 277
[Kioa v West] [1985] HCA 81; 159 CLR 550
[Laws v Australian Broadcasting Tribunal] [1990] HCA 31; 170 CLR 70
[Lane v Norman] (1891) 66 LTS 83; (1891) 61 LJ Ch 149
[Livesey v New South Wales Bar Association] [1983] HCA 17; 151 CLR 288
[Lynch v Hodges] (1963) 4 FLR 348
[Macsween v Fraser] (1956) 1 FLR 10
[Manion v Rankin] (1914) 4 Tas LR 78
[Meadowvale Stud Farm Ltd v Stratford County Council] [1979] 1 NZLR 342
[Minister for Immigration and Multicultural Affairs v Jia Legeng] [2001] HCA 17; 205 CLR 507
[Moore v Doyle] (1969) 15 FLR 59
[Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW] [2006] NSWCA 129; 153 IR 386
[Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities)] [1992] 1 SCR 623
[Old St Boniface Residents Association v Winnipeg (City)] [1990] 3 SCR 1170
[Oshlack v Richmond River Council] [1998] HCA 11; 193 CLR 72
[Parramatta City Council v Hale] (1982) 47 LGRA 319
[Pipi Holdings Pty Ltd v Council of the City of Caloundra] [2000] QSC 343; 111 LGERA 117
[The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman] [1980] HCA 13; 144 CLR 13
[The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group] [1969] HCA 10; 122 CLR 546
[The Queen v Corporation of the City of Marion; Ex parte Independent Grocers’ Co-operative Ltd (No. 2)] (1984) 37 SASR 436
[The Queen v Watson; Ex parte Armstrong] [1976] HCA 39; 136 CLR 248
[R v Amber Valley District Council; Ex parte Jackson] [1985] 1 WLR 298
[R v Goodhall] [2007] VSCA 63; (2007) 15 VR 673
[R v London County Council; Ex parte Akkersdyk & Fermenia] [1892] 1 QB 190
[R v Mullins; Ex parte Stenhouse] (1971) Qd R 66
[R v Optical Board of Registration; Ex parte Qurban] [1933] SASR 1
[R v Piccin] [2001] NSWCCA 35
[R v West Coast Council; Ex parte Strahan Motor Inn] [1995] TASSC 47; (1995) 4 Tas R 411
[Re Gould; Re Australian Railways Union] (1967) 87 CAR 939
[Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam] [2003] HCA 6; 214 CLR 1
[Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin] [1997] HCA 6; 186 CLR 622
[Re Minister for Immigration and Multicultural Affairs; Ex parte Miah] [2001] HCA 22; 206 CLR 57
[Re Refugee Review Tribunal; Ex part Aala] [2000] HCA 57; 204 CLR 82
[Ridge v Baldwin] [1963] UKHL 2; [1964] AC 40
[S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd] (1988) 12 NSWLR 358
[Save Richmond Farmland Society v Richmond] [1990] 3 SCR 1213
[Scurr v Brisbane City Council] [1973] HCA 39; 133 CLR 242
[Short v Mackay] (1951) 73 CAR 23
[Stead v State Government Insurance Commission] [1986] HCA 54; 161 CLR 141
[Steuart v Oliver (No 2)] (1971) 18 FLR 83
[Stollery v Greyhound Racing Control Board] [1972] HCA 53; 128 CLR 509
[Timbarra Protection Coalition Inc v Ross Mining NL] [1999] NSWCA 8; (1999) 46 NSWLR 55
[Thomas v Hayward] (1907) 9 WALR 212
[Vakauta v Kelly] [1989] HCA 44; 167 CLR 568
[Webb v The Queen] [1994] HCA 30; 181 CLR 41
[Zanatta v McCleary] [1976] 1 NSWLR 231

TEXTS CITED:
Aronson, Dyer and Groves, [Judicial Review of Administrative Action] (3rd ed, 2004) pp 457-458
Forbes, [Justice in Tribunals], 2nd ed (2006) The Federation Press at [15.2]
Halsbury’s Laws of England (1989) vol 1(1), Administrative Law, 4th ed

DECISION:
(1) In proceedings no. 40103 of 2007:[ ](a) dismiss the appeal;[ ](b) order the appellants to pay 75% of the second respondent’s costs of the appeal and 25% of the Council’s costs of the appeal.[ ][ ](2) In proceedings no. 40114 of 2008:[ ](a) grant the applicants leave to appeal and direct that the notice of appeal be filed within seven days;[ ](b) in respect of the appeal, set aside the orders made by Pain J in the Land and Environment Court on 11 February 2008 and in lieu thereof order that the applicants pay:[ ](i) 25% of the costs of the Council, and[ ](ii) 75% of the costs of the second respondent of the proceedings in that Court incurred after 28 October 2005.[ ][ ](3) Order that the respondents pay 75% of the appellants’ costs of the proceedings in this Court, in the following proportions, namely 50% payable by the Council and 25% payable by the second respondent.

JUDGMENT:

On 11 October 2005, Ku-ring-gai Council (“the Council”) granted consent by a 7-3 majority to a development application made by Mrs Allan for proposed additions and alterations to her property. The appellants, who were Mrs Allan’s neighbours, objected to the development application.

The appellants challenged the Council’s determination to grant consent to the application by way of class 4 proceedings in the Land and Environment Court. They sought a declaration that the development consent was invalid and consequential orders restraining the Council and Mrs Allan from taking steps to carry out the development. Pain J dismissed the appellants’ application in the Land and Environment Court on 20 February 2007. The appellants appealed from that decision.

Pain J reserved on the question of costs, which was the subject of further argument. On 11 February 2008, Pain J ordered the appellants to pay costs incurred by both the Council and Mrs Allan in the proceedings. The appellants sought leave to appeal from the costs orders.

(i) the trial judge committed legal error in imposing too high a test of reasonable apprehension of bias;

(ii) the conduct of Councillors Ryan and Ebbeck created a reasonable apprehension of bias;

(iv) there was a reasonable apprehension of bias on the part of a Council officer, Mr Miocic, who was responsible for a report recommending that the Council give consent to the development application;

(vi) the Council failed to address relevant considerations and took into account irrelevant considerations.

1. The general approach to whether there is a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power: [9], [42], [72], [82]–[83], [113], [234]

2. The test has a flexible quality depending upon the nature of the power, the character of the repository of the power and the circumstances in which the power comes to be exercised. Importantly, quite different standards operate in relation to local councillors as compared with judges: [7]–[8], [11], [71], [75], [77], [160], [234].

3. The important question for present purposes is how the test operates in relation to a local government authority, constituted by elected councillors, which has a diversity of functions including the broadly political and those of an administrative decision-maker granting authority for specific developments, in accordance with statutory criteria: [5], [13], [75], [151], [234].

4. The test for reasonable apprehension of bias by pre-judgment is whether an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion: [15], [20], [23], [236].

5. Where a person’s involvement in the decision-making process can be characterised, in substance, as constituting him or her a party to the proceedings the issue is not one of “pre-judgment” but one of “conflict of interest”: [28]. Conflict of interest cases involve different considerations to pre-judgment cases: [25]–[26], [30], [39], [236].

6. The trial judge stated the test relating to reasonable apprehension of bias incorrectly by asking whether the decision-maker would, rather than might, not be impartial. There was appellable error; nevertheless, the conclusion her Honour came to was correct: [3], [236].

7. In respect of councillors, the fair-minded observer would expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers: [80].

8. Caution should be exercised in identifying legal error in the test used by the trial judge on a purely semantic basis. Her Honour’s comments were both expressly and implicitly directed to the circumstances before her: the proper test in relation to local councillors exercising powers as a consent authority. The approach her Honour adopted, rejecting the claimed apprehension of bias, was not erroneous in all the circumstances: [110], [115].

9. In the context of a multi-member elected decision-making body, there is no requirement that each of the decision-makers keep an “open mind” until every decision-maker is prepared to make a decision: [51], [56], [236].

10. The fact that Councillors Ryan and Ebbeck came to a conclusion that the application should be approved, prior to the final decision, and expressed themselves in strong terms did not of itself establish that they were not open to persuasion. Both formed their views after consideration of the information available to them, particularly the report by Council officers, and on direct observations: [49]–[50], [59], [236]. Neither Councillor took a step or made a statement that constituted a proper basis for a finding that they were not open to persuasion: [60]–[61], [236].

11. The communications between Councillor Ebbeck and Mr Allan, and Councillor Ryan and Mr Allan did not demonstrate a fixed view on the Councillors’ part, not based on relevant material. The communications demonstrated that the Councillors were firm supporters of the application: [124], [127]–[128]. The Councillors did not effectively become advocates of the development application so as to indicate a reasonable apprehension of bias: [158], [161].

12. Mr Allan’s role as the vendor’s agent for a home purchased by Councillor Ryan did not demonstrate a basis on which to find a reasonable apprehension of bias on Councillor Ryan’s part: [162].

13. If a member of a multi-member decision-making body was affected by apprehended bias, the consequences for the validity of the decision depends on whether the person reasonably suspected of pre-judgment decided the outcome: [31], [45]–[46].

14. Even if Councillors Ryan and Ebbeck had not voted, the result would have been the same. If either or both Councillors could be said to have predetermined the issue, and the apprehended bias principle applied to them, it could not be said that the principle applied to the Council itself. The “but for” test is not satisfied: [62].

15. Where impropriety has been established, the courts will not inquire into its actual effect, if any, on the decision. Even though the votes of the two councillors alleged to have been partial were not decisive, if the Councillors were disqualified, their participation during deliberations and voting may have tainted the proceedings and vitiated the decision: [100], [103].

16. The appellants did not establish that Mr Miocic had some personal benefit to be obtained from approval of the development application and that the staff report failed to deal with the appellants’ objections such that his behaviour demonstrated an apprehension of bias based on interest: [1], [168], [176], [183], [234]. Mr Miocic took steps to ensure that councillors were fully apprised of the circumstances of the application and sought to support the officer’s recommendation: [1], [179], [234].

17. Any failure of the development application to comply substantially with statutory requirements must be treated as non-compliance with a precondition to the power of Council to determine the application: [1], [184], [189], [234].

18. The terms of s 78A(9) of the Environmental Planning and Assessment Act 1979 (NSW) (“EP&A Act”), stating that regulations may specify “other things” to be submitted with a development application, are mandatory. In light of the language and context of s 78(9) and the Environmental Planning and Assessment Regulation 2000 (NSW) (“EP&A Regulation”), the only compulsory documents required with a development application are a site plan, a sketch of the development and a statement of environmental effects (Schedule 1, Part 1, cl 2): [1], [191], [195], [201].

19. The development application was not invalid because it was not accompanied by a survey prepared by a registered surveyor, a heritage impact statement and a statement of environmental effects. The first two documents were not required by s 78(9) of the EP&A Act and cl 2 of Part 1 of Schedule 1 of the EP&A Regulation. The absence of the documents would not have invalidated the consent: [1], [203], [234].

20. The development consent was not invalid on the basis that the site plan was inadequate because it was only necessary that the plan substantially comply with a requirement that it “indicate” the matters referred to in cl 2(2) of Part 1 of Schedule 1 of the EP&A Regulation: [1], [195], [202], [234].

21. The Council’s guidelines did not create statutory preconditions to the exercise of power by the Council as a consent authority: [1], [201], [203], [234].

22. There is no statutory prohibition on members of a consent authority taking into account submissions from an interested member of the public relevant to the exercise of the authority’s powers: [1], [206], [234].

23. Mr Allan’s comments about the bona fides of the appellants and the lack of merit in their objections to the application were not irrelevant considerations: [1], [206]–[207], [234].

24. The Council’s staff report had regard to the applicable policy relating to “first floor decks, balconies and roof top terraces” in the Development Control Plan 38, as required by s 79C(1)(iii) of the EP&A Act: [1], [211]–[212], [234].

1 SPIGELMAN CJ: In this matter I have read the judgment of Basten JA in draft. Subject to the following observations, I agree with his Honour’s analysis of the issues that arise in this case. I wish to express my own reasons on the apprehended bias case with respect to the two Councillors about whom the appellants contend the relevant apprehension exists.

2 The well-established test for apprehended bias applies, as Basten JA shows, not only to judicial decision-makers but also to statutory decision-makers. Subject to statutory modification or the doctrine of necessity, the test is applicable to consent authorities exercising powers under planning legislation, as has arisen in the present case.

3 In the present case, her Honour did state the test in an incorrect manner and did so on a number of occasions. It appears that she applied an incorrect test by asking whether the decision-maker would, rather than might, not be impartial. There was, in my opinion, appellable error. Nevertheless, the conclusion her Honour came to was correct.

4 Two distinct issues arise in this appeal and the appellant has to succeed on both. The first issue is whether it can be said that either of the two Councillors whose conduct is in question has committed what is generally referred to as an act of “pre-judgment” and, accordingly, that an independent observer might reasonably believe she and/or he might not have brought an impartial and unprejudiced mind to the decision-making process. The second and quite distinct, issue, even if the answer to the first question is yes, is whether the decision-making process is invalidated in circumstances where their votes were not essential to the final decision taken.

5 It must be kept in mind that the relevant bias which the independent observer might reasonably apprehend, is that of the Council as the statutory decision-maker, not that of individual Councillors. However, on the facts of this case, unless either or both Councillor Ryan and Councillor Ebbeck had committed pre-judgment, the Council as a whole could not be said to have done so.

6 Lawyers are, understandably, susceptible to approaching such issues, when they arise in the context of a statutory power, by treating judicial decision-making as some kind of paradigm, departures from which have to be explained or even justified by reason of the particular statutory power or decision-making body. In my view this is an incorrect approach. The case law on judicial decision-making is not a starting point when determining the application of the apprehended bias test in a specific statutory context. The statute must be part of the assessment from the outset and not treated as some kind of qualification of a prima facie approach.

7 How the apprehended bias test is applied is, as Basten JA indicates, affected by the statutory functions being performed and by the identity and nature of the decision-maker who is obliged by statute to perform those functions. The content of what the test requires varies from one context to another by a process involving, and usually determined by, statutory interpretation.

8 Each of the elements in the apprehension of bias principle requires a context specific approach which may, and usually will, differ from that appropriate for a judicial decision-making process.

9 In each case the Court must have an understanding, in the particular context of:

· What is the process involved in ‘resolving the question’ that the decision-maker “is required to decide”.

· What may constitute an absence of ‘impartiality’ or lack of ‘prejudice’ in the mind of the decision-maker?

· What might a “fair minded lay observer ... reasonably apprehend” as to the above two matters.

10 These issues require a context specific approach, generally as a process of statutory interpretation. It is unnecessary to consider the longstanding debate as to whether the requirements of procedural fairness constitute a principle of the common law engrafted, subject to statutory modification, on the exercise of public power or whether the requirements emerge by reason of the proper interpretation of the statute conferring the power. On either basis an impartial and unprejudiced mind is required.

11 However, as Hayne J has put it, it is necessary to inquire “what kind or degree of neutrality (if any) is to be expected of the decision-maker” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [187]). That expectation will differ from one statutory context to another. As indicated above, the judicial paradigm is not universally applicable.

12 No doubt in most contexts an open mind must be regarded as a good thing. However, a mind that never shuts will generally be a public nuisance.

13 Of particular significance in the present case is that the relevant statutory power is vested in a democratically elected Council exercising a discretionary power expressed in broad terms to which multiple considerations apply and with respect to which the range of permissible opinion is extraordinarily wide – including issues of policy, taste and philosophy – not least by the adoption of an express formulation as to what constitutes “the public interest” (s 79C(1)(e) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”)).

14 Although the Australian test for apprehended bias, as expressed in terms of two “mights”, sets a low threshold, with respect to a pre-judgment case the identification of what constitutes a lack of ‘impartiality’ or of ‘prejudice’ in the mind of the decision-maker involves an issue of some specificity.

15 The test for pre-judgment in Australian law is, in my opinion, to the same effect as that identified by the Supreme Court of Canada in Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 where, in the terminology of the majority judgment: the decision-maker must be “capable of being persuaded” (at 1197c); pre-judgment is of such an “extent” that contrary representations “would be futile” (at 1197d-e); statements said to constitute pre-judgment must be an “expression of final opinion ... which cannot be dislodged” (at 1197f); the position of the person must be “incapable of change” (at 1197g). The “incapable of persuasion” test was applied again in Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213 at 1224g.

16 A similar approach has been adopted in Australia on pre-judgment issues in Jia Legeng where, in the joint judgment of Gleeson CJ and Gummow J, their Honours referred to a test of whether the decision-maker “is open to persuasion” (at [71] and [105]), or whether the “conclusion already formed [is] incapable of alteration, whatever evidence or arguments may be presented” (at [72]).

17 To similar effect are the observations of Hayne J, namely, that a decision-maker will apply his or her opinion “without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case” (at [185]). His Honour went on to refer to the test terms of whether “the evidence will be disregarded” (at [186]).

18 Also to similar effect are the observations of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100 that the decision-maker “will not alter that conclusion irrespective of the evidence or arguments presented”. In that case, members of the Tribunal had filed a defence which encompassed a pleading asserting the fact into which the Tribunal was to inquire. Their Honours concluded that that act was based on the evidence known to them at the time of the pleading. It was not appropriate to conclude that “the members of the Tribunal will not decide the case impartially when they hear the evidence and arguments ... at the ... inquiry” (at 101).

19 In F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537; (2007) 158 LGERA 250 Biscoe J referred to the relevant passage in the judgment of Sopinka J in Old St Boniface Residents Association and stated at [122] that this was a test of actual not of apprehended bias. His Honour also characterised the observations of Gleeson CJ and Gummow J in Jia Legeng at [71]-[72] as being a test of actual bias.

20 I do not agree. The Supreme Court of Canada was concerned with apprehended bias. It appears that the Canadian apprehended bias test differs – by asking whether the decision-makers would not be impartial, as distinct from might not be impartial. Nevertheless, Australian authority supports a similar concept of what constitutes pre-judgment.

21 Biscoe J’s reference to the judgment of Gleeson CJ and Gummow J in Jia Legeng at [71]-[72] was to that part of their Honours’ judgment concerned with the actual bias submissions. However, their Honours at [100] agreed with the reasoning of Hayne J on apprehended bias and went on at [105] to expressly apply an “open to persuasion” test for apprehended bias.

22 Furthermore, as the joint judgment of the High Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 554, a “fair and unprejudiced” mind:

23 The “open to persuasion” test is an appropriate formulation for bias by pre-judgment, to which the dual “might” test of apprehended bias must be applied; that is, that an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion.

24 As set out at [4]-[5] above, the first issue to be determined is whether either or both of Councillor Ryan or Councillor Ebbeck were not open to persuasion. The second issue is whether the decision-maker – in this case the Council as a collegiate body – can be characterised as not open to persuasion because one or two members are not open to persuasion.

25 Many of the authorities upon which the appellants rely are not cases of pre-judgment. It is important, in my opinion, to distinguish a conflict of interest case from a pre-judgment case. There are two relevant differences.

26 A conflict of interest requires a different analysis as to the relationship, as reasonably perceived, between the interest and the decision. Questions of fact and degree do not arise in the same way. In a pre-judgment case it is necessary to consider the degree of ‘closure’ of the allegedly closed mind. Where a relevant conflict of interest is established the reasonable apprehension follows almost as of course.

27 Secondly, in my opinion, a different approach is appropriate when the vote or votes of the allegedly biased decision-maker(s) was not determinative. In a conflict of interest case it appears to me appropriate to conclude without further inquiry, that the statutory requirements of a valid decision-making process have not been complied with or that an adverse conclusion of what an independent observer might believe would more readily be drawn.

28 Many of the authorities upon which the appellants relied employed the language of pre-judgment but are, on their facts, cases in which one of the decision-makers has, as a matter of substance, placed himself or herself in the position of conflict of interest, indeed becoming a party to the decision-making process. Where a person’s involvement in the decision-making process can be characterised, in substance, as constituting him or her a party to the proceedings the issue is not, in my opinion, one of ‘pre-judgment’ but one of ‘conflict of interest’.

29 In Canada the basic authority is Old St Boniface Residents Association. In that case Sopinka J who delivered the judgment of the majority said at 1196:

30 The present is a pre-judgment, not a conflict of interest, case. Authorities involving conflicts must be treated with care. Furthermore, as indicated above, authorities on judicial decision-makers must be treated with particular care.

31 Even if either or both of the Councillors had pre-judged the issue and, accordingly, one or two members of the decision-making body was or were affected by apprehended bias, there remains the issue whether that affected the whole of the decision-making process. The actual decision-maker is the Council. The appellant contends that an impartial observer might reasonably assume a process of infection – the rotten apple in the barrel test. Such a conclusion is not necessary and must depend on the circumstances of the statutory regime and of the case. The independent observer in administrative law, like the ordinary reasonable reader in defamation law, is not avid for scandal.

32 As I have indicated above, the test for apprehended bias is applied more stringently in the case of judicial decision-makers. That also applies to jurors. However, even in the case of the jury, as a multi-member decision-maker, the rotten apple test is not automatically applied. The apprehended bias principle is the same (see Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 46-47, 53, 57, 68-69, 87-88). Nevertheless, the discharge of one juror, on the basis that s/he may not be impartial, does not necessarily require the discharge of the whole jury (see eg R v Goodhall [2007] VSCA 63; (2007) 15 VR 673 esp at [32]-[37]; R v Piccin [2001] NSWCCA 35 at [85]- [90]).

33 In this respect the appellants placed particular reliance on some observations of Gummow J in IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1, particularly where his Honour said at 50:

34 These remarks were obiter. The issue there arose in a particular statutory context and his Honour referred to general principles of administrative law by way of analogy. Furthermore, this was a case in which, if the persons said to be biased had not participated in the decision-making process, then the challenged decision would not have had a majority.

35 It is noteworthy that the relevant sentence in his Honour’s remarks commence with the words “It has been said that ...”. The footnote for this and the succeeding sentence is a reference to the Reissue of the 4th edition of Halsbury’s Laws of England (1989) vol 1(1), Administrative Law at [90]. This paragraph is repeated at [103] of the 2001 Reissue, published since the decision. The tentative nature of the proposition advanced by Gummow J is confirmed in this text which read and reads:

36 The reference in Halsbury to “direct personal interest” suggests actual bias. The passage indicates, by use of the words “it appears”, that the position with respect to apprehended bias is by no means clear. Although the test for apprehended bias in England is different to that adopted in Australia – requiring probability rather than possibility – that difference does not appear to me to be material in this respect.

37 Most of the authorities referred to in the footnote to the passage in Halsbury are cases of judicial decision-making in a collegial context. The rotten apple principle is particularly appropriate with respect to judicial decision-making, where the historical significance of independence and impartiality (see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [3], [7]; Jia Legeng at [179]-[181]) creates requirements of a different order to those which arise in the exercise of statutory powers, especially by democratically elected decision-makers.

38 In the context of multi-member decision-making bodies that are not courts, or subject to the same stringent requirements as courts, a disqualifying conflict of interest of a character which the apprehended bias principle would require the person not to participate in, indeed not even be present at, the decision-making process has been held to exist where:

· The person formally opposed an application and made representations to the decision-making body of which s/he was a member, where those representations were required by statute to be taken into account (R v West Coast Council; Ex parte Strahan Motor Inn [1995] TASSC 47; (1995) 4 Tas R 411).

· The person opposed the application and instructed a lawyer to appear at the hearing to argue against its acceptance (R v London County Council; Ex parte Akkersdyk & Fermenia [1892] 1 QB 190; Frome United Breweries Company Ltd v County Borough of Bath [1926] AC 586).

· The person otherwise becomes, in substance, a party to the proceedings (see eg Cooper v Wilson [1937] 2 KB 309 at 322-324, 344-345; West Coast Council at 427).

39 All of these cases appear to me to involve a conflict of interest, rather than pre-judgment. The conduct of the particular member(s) of the multi-member decision-maker went well beyond a manifestation that s/he was or they were not open to persuasion.

40 In such cases, the independent observer might reasonably believe that the influence on the others of the person(s) who manifested bias of that character could well go beyond the usual process of internal debate. Accordingly, an independent observer could reasonably conclude that the entire collegiate body may not bring an impartial mind to the decision-making process. However, the pre-judgment situation is not necessarily, indeed not usually, of that character.

41 A person who has come to a firm opinion, albeit on a pre-judgment basis, but not to the degree to become a party in substance, will often seek to convince others to adopt his or her view. However, that does not imply that s/he will do so by other than rational and relevant argument. Questions of fact and degree are involved which make it difficult to apply a rotten apple test to a pre-judgment case, even on an apprehended bias basis.

42 In IW Gummow J referred to the policy basis of the relevant case law as being the desirability of avoiding judicial inquiry as to the actual influence of a particular individual in the decision-making process. His Honour’s approach appears to be consistent with the statement in Ebner at [7] to the effect that the test for apprehension of bias “requires no conclusion about what factors actually influenced the outcome”. This is inherent in the objective nature of the apprehended bias test: it only has to be reasonably possible that the decision-maker might not be impartial.

43 Nevertheless, there appears to me to be a tension between Gummow J’s statement in IW doubting any requirement to consider whether the “biased” decision-maker made a difference and the reliance placed on the particular influence, or lack thereof, of the “biased” public servant advising the Minister in Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 esp at [19]-[20], [25], [44], [46]-[47], [72]-[73].

44 Perhaps the tension is to be resolved by applying the observation in Ebner at [8] that:

45 It is necessary to allow for special cases, for example, when a particular member of a collegial body has, or has had, particular influence on the other members. Except in such cases, a rotten apple test is not, in my opinion, the approach that an independent observer “might” reasonably adopt in the usual pre-judgment case. Rather a “but for” test should generally be applied, that is, the Court should ask whether or not the person(s) reasonably suspected of pre-judgment decided the outcome.

46 This approach does not call for an inquiry into “the extent to which that person may have influenced the majority”, to use Gummow J’s terminology. It will generally be sufficient just to count the votes. Further inquiry would only be called for on the part of the independent observer where there is clear reason for engaging in it. The purpose identified by Gummow J can be served by a simple “but for” rule, at least in the usual case of a collegial decision-making process.

49 Basten JA sets out the relevant facts. Councillor Ryan and Councillor Ebbeck came to the conclusion that the application should be approved prior to the final decision. The fact that they did so, and expressed themselves in strong terms, however, does not of itself establish that they were not open to persuasion.

50 As Basten JA shows, each formed his or her opinion after consideration of relevant facts, particularly the report by Council officers. At the time that Councillor Ryan appeared to form her opinion there were some defects in the documentation – an erroneous impression in the site plan and the absence of a heritage report. Both of these defects were remedied in due course.

51 In the context of a multi-member elected decision-making body, there is no requirement that each of the decision-makers must keep an “open mind” until every decision-maker is prepared to make a decision. It is perfectly legitimate for one member of such a collegial body to make up his or her mind before others do so and, in accordance with a process of democratic decision-making, to seek to persuade other decision-makers to agree with his or her conclusion, if necessary by changing their minds.

52 Nothing in such a process, in my opinion, constitutes a proper or reasonable basis for an apprehension of bias for purposes of the application of the test. I agree with Basten JA that it is not a manifestation of pre-judgment bias to maintain a position that has been arrived at after due consideration.

53 In Ebner at [8], the joint judgment of Gleeson CJ and McHugh, Gummow and Hayne JJ, applied the traditional test by identifying a “first step” which their Honours expressed as requiring “identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”.

54 I accept that this formulation captures the pith and substance of the authoritative test requiring a decision-maker to have ‘an impartial and unprejudiced mind’. However, so expressed, it becomes clear that the test is not contravened if an individual decision-maker has reached a view after considering the “legal and factual merits”.

55 To similar effect is the explanation by Hayne J of the concept of bias for pre-judgment as “a deviation from the true course of decision-making” (Jia Legeng at [183]). There is no such deviation where one member of a collegial body considers the evidence and comes to a firm view in advance of other members and in advance of the final decision.

56 No doubt there will be circumstances in which a member of a collegial body will make up his or her mind and subsequent conduct may indicate that that has resulted in a denial of procedural fairness or a failure to take into account relevant considerations or some other basis for judicial review. The present case is, however, concerned with apprehended bias and I see no reason why, in a context such as the present, a decision-maker cannot make up his or her mind at a stage in the deliberative process which is well before the final decision, without being accused of bias on the apprehended bias test.

57 In a case where substantive new information became available and a person does not respond appropriately it may appear that that decision-maker was not open to persuasion and, therefore, there was a basis for applying the apprehended bias principle. Nothing like that happened here.

58 On the evidence, Councillors Ryan and Ebbeck were significantly influenced by the positive assessment on the part of Council officers. Each also visited the site. Over their objection, other Councillors sought and obtained a site meeting on the application. After they had made their support apparent, the other Councillors called for a heritage report which did not lead either to change his or her mind, nor the Council officers to change their recommendation.

59 During the course of the protracted deliberations, over four Council meetings, both Councillors communicated with the applicant for the development expressing their support. Both also attempted to persuade other Councillors to their point of view. I can see nothing wrong with this. Both had formed a view based on the information available to them and on direct observations.

60 Neither Councillor Ryan nor Councillor Ebbeck changed the views they had formed on the basis of their acceptance of the recommendation by Council officers. However, that is not evidence that either Councillor was not open to persuasion. Indeed, neither took a step or made a statement which constitutes, in my opinion, a proper basis for a finding that they were not open to persuasion. Before the final approval, each indicated that s/he had formed a firm view, but that is not enough. None of the evidence suggests that either Councillor had become so staunch an advocate that they were impervious to new information or argument.

61 Each told the applicant that they would support the development application, but only after they had an opportunity to assess the merits. Nothing they said was open to be interpreted as an indication that either would support the application irrespective of the merits. Nothing they said was open to the interpretation that they would not take new information into account or that they would not listen to other views. Nothing they said indicated that they would not have regard to the considerations required to be taken into account by s 79C of the EP&A Act.

62 Alternatively, even if Councillor Ryan and Councillor Ebbeck had not voted, the result would have been the same. If either or both could be said to have predetermined the issue, and the apprehended bias principle applied to them, it could not be said that the principle applied to the Council itself. The “but for” test, identified at [45] above as the relevant test in a bias by predetermination case, is not satisfied.

	Paragraph No.
Issues	65
Legal principles: partiality of councillors	71
Knowledge ascribed to fair-minded observer	78
Application of principles to collegiate body	84
Burden of establishing bias	104
Alleged legal error	108
Factual basis for allegations	116
(a) General	116
(b) Councillor Ebbeck	122
(c) Councillor Ryan	151
Proper role of councillors	152
Bias of Council officer	163
Failure to comply with statutory procedures	184
(a) Statutory scheme	185
(b) Application of principles	201
Miscellaneous grounds	204
(a) Breach of procedural fairness	204
(b) Taking account of irrelevant considerations	206
(c) Failure to take account of relevant considerations	208
Costs of trial	213
Costs of appeal	230
Conclusions	233

65 On 11 October 2005 Ku-ring-gai Council (“the Council”) granted consent to a development application made by Mrs Marilena Allan for proposed additions and alterations to her property at 49 Telegraph Road, Pymble. The appellants, who were neighbours living at 51 Telegraph Road, objected to the development application and now seek to challenge the Council’s determination to grant consent to the application.

66 The initial challenge was by way of class 4 proceedings in the Land and Environment Court seeking a declaration that the development consent was invalid and a consequential order restraining the Council and Mrs Allan from taking steps to carry out the development.

67 The appellants were unsuccessful in the Land and Environment Court, Pain J dismissing their application by judgment delivered on 20 February 2007: McGovern v Ku-ring-gai Council [2007] NSWLEC 22. They appeal from that decision. Pain J reserved the question of costs, which were the subject of further argument, resulting in a second judgment on 11 February 2008, ordering the appellants to pay costs incurred by both the Council and Mrs Allan in the proceedings: McGovern v Ku-ring-gai Council (No. 2) [2008] NSWLEC 50. The appellants seek leave to appeal from the costs orders, on grounds which require consideration of the history of the proceedings.

68 So far as the main appeal is concerned, the allegations of invalidity now pursued turn primarily upon allegations of bias or a reasonable apprehension of bias on the part of the former Mayor and Deputy Mayor of the Council, Councillors Adrienne Ryan and Nick Ebbeck respectively, being two of the majority who voted in favour of the development on 11 October 2005. There is a further allegation of bias on the part of an officer of the Council, Mr Miocic, who was responsible for a report recommending that the Council give consent to the development application. Most of the numerous grounds of appeal are encompassed within these broad allegations.

69 There were also subsidiary complaints concerning failure to comply with statutory requirements and a separate set of allegations alleging procedural unfairness, failure on the part of the Council to address a relevant consideration and taking into account irrelevant considerations.

70 It is convenient to begin with the allegations relating to bias and reasonable apprehension of bias. This requires, first, identification of the relevant legal principles applicable to questions of partiality and prejudgment in relation to decision-making by a local government body acting as a consent authority for planning purposes and, secondly, an assessment of the factual material presented in the Land and Environment Court.

71 Absence of bias, including questions of partiality and prejudgment, whether actual or apparent, are part of the requirements of natural justice: see, eg, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [43] (Gleeson CJ and Hayne J). As such, they will be taken to apply to any exercise of public power unless clearly excluded, but will have a flexible quality depending upon such matters as the nature of the power, the character of the repository of the power and the circumstances in which the power comes to be exercised: see, eg, Kioa v West [1985] HCA 81; 159 CLR 550 at 612-613 (Brennan J). Acknowledging the need for flexibility tends to undermine the utility of a single ‘test’ for assessing, if not bias, at least reasonable apprehension of bias, which is the category most commonly relied upon. However the test is formulated, it must undoubtedly operate differentially with respect to judges and elected councillors, and with respect to conflicts of interest as compared with allegations of prejudgment: see, generally, the categories identified by Deane J in Webb v The Queen [1994] HCA 30; 181 CLR 41 at 74, namely interest, conduct, association and extraneous information.

72 There was no dispute in the present case that the general approach required to be applied is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power. As explained by Gleeson CJ and Gummow J (Hayne J agreeing) in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72]:

73 The test of actual bias is stringent: it is unlikely to arise in most cases, so long as the test of reasonable apprehension of bias assumes an informed fair-minded observer: see Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 87 (Mason CJ and Brennan J). That is because the test of apparent bias is set at a lower level: see also Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 293 and The Queen v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248 at 258-263 (Barwick CJ, Gibbs, Stephen and Mason JJ).

74 Apart from permitting a level of satisfaction below that of a probability, both in regard to the likelihood of the observer holding a particular belief and as to the likelihood of the decision-maker having a particular state of mind, one effect of this test is to remove an objective exercise in fact-finding from the court, so that the court is required to form a view as to the likely attitude of the fair-minded observer. For a reason which will become relevant in considering the operation of the test in relation to a collegiate decision-maker, this approach not only permits a margin for error, but also reduces the risk that the finding of the court may itself diminish the value which the principle is designed to promote, namely public confidence in the administration of justice: see Webb v The Queen at 52 (Mason CJ and McHugh J).

75 The important question for present purposes is how the test operates in relation to a local government authority, constituted by elected councillors, which has a diversity of functions including the broadly political (see Local Government Act 1993 (NSW), s 8) and those of an administrative decision-maker granting authority for specific developments, in accordance with statutory criteria, as in the present case. As the judgments of the High Court in Jia demonstrate, quite different standards will operate in relation to ministerial decision-making because of the need to take into account the particular role and functions of the decision-maker: see [78], [99]-[102] (Gleeson CJ and Gummow J); [125], [141]-[143] (Kirby J dissenting, but not on this point); [180]-[182], [187] (Hayne J); [244]-[245] (Callinan J). As explained by Hayne J:

76 After referring to a number of relevant factors, his Honour continued at [187]:

77 There can be no doubt that the position of councillors sitting on a local government authority are far removed in the exercise of their functions from a judicial paradigm. In those circumstances, a significant degree of care must be taken in applying a test, the language of which is deemed appropriate both in respect of courts and in respect of elected administrative decision-makers.

79 There are three concepts which inhere in this proposition. The first concerns the general understanding which the fair-minded observer is deemed to have which would create or allay an apprehension of bias. In Laws, there was a question as to whether the fair-minded observer would understand the significance of the filing of a defence by members of a tribunal against whom proceedings for defamation had been brought. As Mahoney JA remarked in Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411 at 440, the fair-minded observer is generally taken to be mistaken because members of tribunals will rarely be biased in the ways attributed to them, as he or she might have appreciated, if fully appraised of the operation of a particular decision-maker. Thus, in Spedley Securities, Kirby P suggested that “care should be taken against attributing to the hypothetical reasonable observer a level of sophistication which may be enjoyed by judges and other lawyers (or by specially educated or informed citizens or even by the parties involved)”: at p 419, referring to Toohey J in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 585 and S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 375.

80 Whether familiarity with relevant processes breeds contempt or trust is not a matter which need detain the Court in this matter: there is no particular reason to suppose that members of the general public are any better or less well-informed than judges about the proper institutional role of local councils or how they operate in practice. The real question is what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect of a councillor dealing with a development application. The institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers.

81 The second issue raised with respect to the information ascribed to the fair-minded observer is the extent to which the views of the decision-maker as to the effect of discreditable information should also be attributed to the observer. In a case where the decision-maker has publicly identified that prejudicial material has been available, the observer would be entitled to take account of a statement that it has not affected the decision-maker’s approach to the decision, but need not be expected to accept the disclaimer: see, eg, Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342, 350-351, 356-357 (Mason J). In a case where the information is private, as between a councillor and a lobbyist, the actual representations made and the responses provided may be seen as “the actual circumstances of the case”, as referred to in Laws. However, it may be important not to take particular statements out of context. That may mean also taking into account contemporaneous statements by the decision-maker asserting that particular information had no influence on his or her decision.

82 The last proposition should be subject to a qualification, although one which did not arise in the present case. The fact that statements of the decision-maker may be used in this way does not mean that a party can necessarily require a decision-maker to reveal his or her processes of decision-making, nor invite an adverse inference to be drawn in circumstances where the decision-maker has not been forthcoming. The law with respect to bias, much of which has accumulated through cases considering the operations of courts and quasi-judicial tribunals, has developed a test of reasonable apprehension of bias which does not require either evidence as to actual causal connection between the prejudicial material or interest and the decision, nor any prediction about how the decision was in fact made: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]- [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ) and Zanatta v McCleary [1976] 1 NSWLR 231, 234 (Street CJ), 238-239 (Samuels JA). While a causal connection must be demonstrated (in a case involving conflict of interest) it is the capability to affect a decision, not the actual affectation, which must be established.

83 Thirdly, it must be borne in mind that the attribution of information to the fair-minded observer is for the purpose of deciding whether there is a real possibility that he or she would apprehend that the decision-maker might have a closed mind. Ultimately it is the affected party whose confidence in the system may be seen to be most nearly affected. Nevertheless, reference to the views which might be held by a party to a dispute will tend to weaken the objective nature of the test. Thus a party might have a particular belief about the proper decision, perhaps based upon a level of detailed information which should not properly be ascribed to the fair-minded observer. Nor is it necessary to consider whether a party would hold a reasonable apprehension in circumstances where others might not.

84 In so far as the grounds allege bias on the part of two particular councillors, a question arises as to whether establishing a reasonable apprehension of bias in respect of them is sufficient for the appellants to succeed in invalidating the decision of the Council. That decision was made by a 7-3 majority; the votes of the two councillors said to be tainted by a reasonable apprehension of bias were not arithmetically determinative. Nor was it argued that the Council would not have had a quorum if those two councillors had been disqualified from participation in the consideration of the application.

85 The appellants argued, in substance, that the number of the decision-making body who should properly have been disqualified did not matter; the presence of one was sufficient to taint the process and thus invalidate the resultant decision.

86 The appellants sought support for their position from the judgment of Gummow J in IW v City of Perth [1997] HCA 30; 191 CLR 1 at 46-51. IW did not involve judicial review of an administrative decision, but rather a challenge to the decision of a council in refusing a development application, on the basis of unlawful discrimination on the ground of impairment. The Perth City Council had refused planning approval for use of a building as a daytime drop-in centre for people who were HIV positive. The Equal Opportunity Tribunal (WA) had held that the refusal of planning approval was a refusal to provide services for the purposes of the Equal Opportunity Act 1984 (WA). The decision of the Council had been by a one vote majority, the Council having divided 13-12 against granting approval. The Tribunal was satisfied that the votes of five members of the majority were grounded on the “AIDS factor”. The decision was therefore held to be unlawful, a result overturned by the Full Court. On the further appeal, the High Court divided, the majority giving three separate judgments, being the joint judgments of Brennan CJ and McHugh J and Dawson and Gaudron JJ, with Gummow J writing separately. The dissenting members (who would have upheld the appeal) were Toohey J and Kirby J, each of whom wrote separately. The correct approach to the causation issue with respect to decision-making by the council was considered by Gummow J (obiter, his Honour having concluded that the appeal should be dismissed on other grounds) and by the dissenters, who needed to be satisfied that the appellant made good his case in this respect in order for the appeal to succeed.

87 Toohey J noted that the discriminatory ground did not need to be the dominant or substantial reason for doing the act, but it was sufficient that it was one ground on which the council reached its decision: at 31. His Honour continued:

88 Toohey J upheld the approach of Murray J and the Tribunal, namely that the vote of any one of the majority councillors was causative and therefore infected the decision: at 33. Gummow J came to a similar conclusion numerically, but on a different basis. After rejecting the analogy with directors of a company, his Honour found support in the law regulating the exercise of trustee powers. His Honour noted at 48:

89 His Honour did not place weight upon that analogy alone, as the distinction between trustees acting jointly and members of a council acting by majority would appear to diminish its force. Rather, his Honour moved to the separate proposition that the councillors held analogous positions which, while not rendering them subject to fiduciary duties to ratepayers, required that they not act for a purpose foreign to the power in question: at 49. Noting that a councillor was, by statute, disqualified from voting on matters in which he or she was interested (s 174 of the Local Government Act 1960 (WA)) he continued, at 50:

90 Kirby J adopted an approach similar to that of Toohey J, purely as a matter of purposive construction of the Act, and “not because of a doctrine of company law or administrative law”: at 66. His Honour thus had nothing to say on the question of bias in administrative law.

91 The approach of Gummow J may be seen to obtain some support from the decision of Mahon J in the New Zealand Supreme Court (as the High Court was called until 1979) in Meadowvale Stud Farm Ltd v Stratford County Council [1979] 1 NZLR 342. That case involved an application by the owner of a pig farm for a licence to boil down carcases. A dairy company which operated a milk powder factory on adjacent land objected. The applicant contended that five members of the council should not have considered his application as one of them was a director and all five were shareholders in the dairy company. The council voted 11-1 in favour of granting the licence, but imposed a condition prohibiting boiling down dead livestock, thus rendering the licence entirely nugatory from the point of view of the applicant. (The dissenter would presumably have refused the licence.)

92 Mahon J was satisfied that “neither the applicant nor any independent observer could have had any real confidence in the outcome of the ultimate Council meeting, seeing that five members out of 12 on the Council were shareholders in the objecting company, and that one of the five was a director of that company, and that the declared purpose of the company was to close the pig farm down”: at 348 (50). However, his Honour also considered the contention that the decision would have been the same even if the disqualified councillors had been excluded from deciding the application because a majority, or possibly the whole of the council, opposed the application on the terms sought by the applicant: at 349(50). After referring to the judgment of Megarry J in John v Rees [1970] Ch 345 at 402, his Honour continued at 350(15):

93 This approach was in conformity with that adopted generally in relation to procedural fairness. As explained by Megarry J in John v Rees at 402:

95 In a case involving a similar loss of opportunity, and in circumstances where the decision of the tribunal turned upon a question of credibility, Gleeson CJ stated in Re Refugee Review Tribunal; Ex part Aala [2000] HCA 57; 204 CLR 82 at [4]:

96 Nevertheless, there may be cases in which it can be concluded that the denial of an opportunity to respond to a matter “could have had no bearing on the outcome of the trial of an issue of fact”: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145-146. An applicant who agrees he or she could have said nothing if afforded an opportunity, has suffered no material injustice: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [36]- [38] (Gleeson CJ), [106] (McHugh and Gummow JJ), [114], [122] (Hayne J) and [149] (Callinan J).

97 Commentators have suggested that there is a strong justification for a court not to refuse relief where procedural unfairness has been established, because to do so would usually require it to undertake an assessment of the merits of the case, which is beyond the power of a court exercising judicial review: see Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) pp 457-458. Arguably, the same rationale applies in relation to cases of apprehended bias, for two reasons. First, by dealing with cases on the basis of a reasonable apprehension of bias, the Court eschews any inquiry into the existence of bias or otherwise, as a matter of fact. Secondly, even in relation to a council which deliberates at least partly in public, it might be thought inappropriate for a court exercising judicial review to inquire as to whether, and if so to what extent, the fact that a particular person supported an application may have influenced other members of council to do the same. That inquiry might require consideration of whether other councillors knew of any element of partiality on the part of the impugned councillor, thus subverting the attempt by the courts to abstain from such inquiries by adopting an objective test.

98 On that approach, the appellants are merely seeking to have the development application (and their objection to it) considered by a consent authority not tainted by partiality. To establish partiality on the part of any member of the Council involved in the meeting, would be sufficient for that purpose. It would only be a case where, as a matter of law, the Council could not have reached a different conclusion that arguments based on futility could arise. Otherwise it will be appropriate for the Court to set the tainted determination aside.

99 In defence of the Council’s decision, an attempt was made to distinguish the cases referred to by Gummow J in IW (at footnote (137)) as all involving licensing or disciplinary decisions. These, it was contended, involve interference with existing rights of individuals and should thus be seen in a different category to applications under planning legislation. The correctness of that categorisation of cases such as Dickason v Edwards [1910] HCA 7; 10 CLR 243 and Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376, may be conceded. To them may be added cases such as Stollery v Greyhound Racing Control Board [1972] HCA 53; 128 CLR 509. Nevertheless, the point of distinction is not made good. For example, the complaint in Stollery was that a greyhound owner had sought to bribe a manager responsible for determining which dogs should be permitted to race at particular times. The manager reported the incident to the Board which, having heard from the greyhound owner, retired to deliberate with the manager and found the owner guilty. Although the manager was a member of the Board, he did not participate in its decision-making. Nevertheless, and accepting his non-participation as a fact, the High Court held that his presence in the boardroom while the matter was being decided gave rise to a reasonable apprehension of bias, vitiating the decision. Although it was accepted that he had not participated in the deliberations, as Gibbs J explained at 527:

100 These cases are consistent with the proposition that where impropriety has been established, the courts will not inquire into its actual effect, if any, on the decision. The point of distinction sought to be drawn is that in the present case the Council did not deliberate in the absence of the applicant and the objector and thus the opportunity for bias to work an effect unknown to the parties was not present.

101 In a sense, the point of distinction is real enough; on the other hand, it may give rise to fine points depending on the facts. For example, there may be a difference between the situation where a disqualified councillor attends the deliberations and votes (where other councillors may not know of the disqualifying consideration) and the situation where the councillor withdraws, thus putting other councillors on notice, so that prior comments may be discounted on the basis of partiality. To the extent that there may have been prior discussions with disqualified councillors, that might have occurred even if the councillors had withdrawn from both voting and attendance during the consideration of the relevant agenda item.

102 These comments are not inconsistent with anything said in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277, where comment was made as to the value of establishing what was considered by the “collegiate mind” of a council: at [63]-[66] referring to Parramatta City Council v Hale (1982) 47 LGRA 319 at 345 (Moffitt P). The discussion in those cases was concerned with an alleged failure to take into account relevant considerations, being a possible failure in the decision-making process of the authority, rather than a situation where it was alleged that the authority was or contained members who were not impartial. An approach which may be useful in one context may be unhelpful in the other.

103 In the present case, the two councillors alleged to be partial were present at the deliberations and exercised their votes. Even though their votes were not decisive, their presence, if they were disqualified, may have tainted the proceedings and vitiated the decision.

104 Before turning to the factual matters relied upon by the appellants, it is desirable to say something about the burden resting on them in relation to the claims which they seek to make good. It was submitted for the Council that although the test of apparent bias is dependent upon a real chance that an observer might reasonably apprehend that the decision-maker might not deal with the issues with an open mind, it was nevertheless necessary that each element of the test be “firmly established”, drawing on a line of cases affirmed by Kirby J in Jia, at [127], referring to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361 (Dixon J) with respect to the need for accusations to be distinctly made and clearly proved. However, that remark was made in relation to an allegation that the Minister had, in effect, “given way to his animosity against Mr Jia and people like him”. The reference to the reasons of Gleeson CJ and Gummow J at [69], contained in the same footnote as Briginshaw, demonstrate the limited scope of the remark. In the joint judgment at [69], their Honours referred to a suggestion of a matter not argued, namely that the Minister’s decision “constituted an abuse of power in the form of a deliberate refusal to follow the provisions of the statute”. It was in respect of such an allegation that their Honours referred to the need for such allegations to be “distinctly made and clearly proved”. Their Honours did not suggest that the elements of a real apprehension of bias need in other circumstances be subject to such a requirement.

105 Indeed, if all that is put is that there is a real likelihood of the hypothetical bystander forming a particular view, it is somewhat artificial to refer to a particular burden of proof. Gleeson CJ and Gummow J referred to the joint judgment of the Court in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; 122 CLR 546 at 553. The test there formulated was that the decisions of the Commission might be undermined “by a suspicion of bias reasonably – and not fancifully – entertained by responsible minds”. After reference to authority, including Dickason, their Honours continued at 553-554:

106 What that language means may depend upon the circumstances, but, rather than identifying a standard of proof, it may better be understood as requiring, not merely a vague assertion of suspicion, but “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”: see Ebner at [8]. The joint judgment in Ebner continued:

107 Having identified the relevant principles it is convenient to address the appellants’ complaint that the trial judge failed to ask whether the observer “might” reasonably apprehend that the Council “may not” bring an impartial mind to the issues before it.

108 The appellants complained that the trial judge committed legal error in imposing too high a test for reasonable apprehension of bias. That error was said to flow from statements that the test required that an informed observer “would” reasonably apprehend bias by a decision-maker, that the reasonable apprehension was that the councillor “had closed” his or her mind to an alternative conclusion and that the apprehension of bias must be “firmly established”: [2007] NSWLEC 22 at [60], [61], [71] and [80].

109 In the passage at [80], after discussing various authorities, her Honour held that there was “a high hurdle of proof” to overcome in determining that there was an apprehension of bias.

110 It is true that the use of the words “would” and “had” suggests matters of fact to be determined on the balance of probabilities. By comparison, the test espoused, most recently in Ebner, clearly identifies a lower hurdle. The use of the word “might” in both limbs of the test connotes the concept of a real chance or a realistic possibility, falling short of a probability: see Ebner at [37] (Gleeson CJ, McHugh, Gummow and Hayne JJ). However, there are a number of factors which call for caution in identifying legal error on a purely semantic basis. The first, as pointed out by counsel for the respondent Council, is that all the cases referred to by her Honour (except Jia) were concerned with courts. It would be erroneous simply to transpose that test to other governmental institutions, without being conscious of the variations required to take account of different functions and institutional structures. Her Honour’s comments were both expressly and implicitly directed to the circumstances before her, namely the proper test in relation to local councillors exercising powers as a consent authority.

111 Secondly, there is a risk of overemphasising the importance of the formula used to express the test, at the expense of its operation. Thus, in Ebner, the High Court dealt with the possibility of an apprehension of bias created by a judge sitting on a case involving a listed public company in which he or she had shares, or held a beneficial interest. In dealing with such an interest, the joint judgment noted of the correct approach, at [8]:

113 Although the comment in Ebner was made in a case involving a possibly disqualifying interest, it has significance in a case of prejudgment and, more particularly, in a case which does not involve judicial judgment. As already noted, one important aspect of the test of reasonable apprehension of bias is that it removes the inquiry from the actual process of decision-making. That this is a purpose of framing the test in terms of real possibilities was acknowledged by Deane J in Webb at 71.

114 In requiring that the reasonable apprehension be “firmly established”, her Honour was adopting language from the judgment of Kirby J in Jia at [127], a case in which his Honour was in dissent, although, perhaps ironically, his Honour upheld a claim of imputed bias, whereas the majority did not. Nevertheless, that language is to be found in Ex parte The Angliss Group in a passage set out at [105] above. It has been repeated in other authorities which adopt the realistic possibility test. In relation to courts, there is a countervailing pressure to resist too ready an acceptance of a disqualification application, which may be pressed by one party for strategic purposes. The conflicting tensions are reflected in the requirement that there be only a realistic possibility of apprehended bias, but that the possibility be “firmly established”. Given the differential operation of the test in relation to judicial officers and local councillors, it is necessary to consider the way her Honour applied the test in order to determine whether legal error is revealed.

115 For the reasons set out above, the approach her Honour adopted, rejecting the claimed apprehension of bias, was not erroneous in all the circumstances. There is no binding authority which states that the test involving two limbs of realistic possibility is to be applied in those terms in relation to a local council. Indeed, as explained in Jia, it may well be erroneous simply to restate the test applicable to judicial officers in a materially different context: see [80] above. I am not persuaded that her Honour applied an incorrect test, but in any event, as will be seen below, her conclusion reached in the circumstances was correct.

116 In order to understand the basis upon which complaints were made about the partiality of Councillors Ryan and Ebbeck, it is necessary to give some background to the circumstances under which the development application was made, challenged, determined, amended and the process repeated.

117 The development application lodged on 29 December 2004 (“the first application”), sought approval for work which was described as:

118 The appellants said there were a number of deficiencies affecting the application which demonstrated that it was not a valid application in accordance with the requirements of the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”). First, because the appellants’ adjacent property was a “heritage item”, a heritage impact statement should have accompanied the development application; secondly, the statement of environmental effects was deficient; thirdly, the application should have been accompanied by a survey plan but was not and, fourthly, the site plan was deficient in that it showed the appellants’ property some two metres further from the boundary adjacent to the proposed carport than was in fact the case. It was the carport to which primary objection was taken, as, being in the front of the property, it affected the reason for heritage listing, which was based on the features of the appellants’ property facing Telegraph Road.

119 With respect to the process, the first application was originally referred to a Council officer for approval, but was later recalled by councillors for consideration by the Council itself. Nevertheless, when the consent was granted, on 3 June 2005, the determination was made by a Council officer, supposedly under delegated authority.

120 The present proceedings were commenced in the Land and Environment Court on 17 June 2005 and challenged the consent given to the first application. Following that challenge, the applicant promptly lodged a second application (“the second application”) in similar terms to the first application.

121 There was no submission that the second application was invalid because it related to work which was the subject of an existing approval. As will be seen, consent was ultimately granted, conditional upon the surrender of the consent given in respect of the first application. The proceedings appear to have been conducted in the Land and Environment Court on the basis that if the appellants failed in their challenge to the determination of the second application, any separate challenge to the validity of the first application would be irrelevant (except, perhaps, as to costs). Accordingly, the argument in this Court was directed to her Honour’s rejection of the challenge to the grant of consent to the second application. That did not mean, however, that events which occurred prior to the lodging of the second application were irrelevant. The appellants relied upon email communications between Mrs Allan’s husband (Mr Mark Allan) and Councillor Ebbeck from 31 March 2005 to 11 October 2005 and between Mr Allan and Councillor Ryan from 1 June 2005 to 23 September 2005. (Consent was granted to the second application on 11 October 2005.)

122 It is convenient first to deal with the allegations relating to Councillor Ebbeck. The allegations are based entirely upon discovered emails between Mr Allan and Councillor Ebbeck. They commenced on 31 March 2005 with Mr Allan contacting Councillor Ebbeck, seeking a meeting to discuss the first application. It is apparent that during the meeting, which occurred in late March or early April, Mr Allan made derogatory comments about “the old girl next door”, being Mrs McGovern. It also appears from a lengthy email sent by Mr Allan on 1 April that there had been a range of disputes between the parties prior to that time, including a contention by the appellants that the Allans had installed a spa without the necessary approval, said by Mr Allan to have been done on the basis of advice from a Council officer.

123 There is no doubt that Mr Allan expressed himself in strong terms in relation to Mrs McGovern. He described her to Councillor Ebbeck as “a vexatious complainant”, who had “lied to the Council guy about me doing illegal plumbing for the spa”; who had “lied in objections to the DA”, had “personally solicited other complaints”, “has no credibility but is a bully that seems to get the Council into kowtow mode at call”.

124 These (and other emails to Councillor Ryan in similar terms) were described as “inappropriate”. Precisely what that characterisation meant in the present context is unclear; what was missing from the material with respect to Councillor Ebbeck was some demonstration of a fixed view on his part, not based on relevant material. All that the email exchanges demonstrated was that by 16 September, Councillor Ebbeck was a firm supporter of the application. On that date, he received an email from Mr and Mrs Allan which appeared to have gone, in similar terms, to all councillors, noting that the application was back before Council “yet again” at the next meeting. Councillor Ebbeck responded:

125 The context demonstrated that this email was inconsequential to demonstrate prejudgment. The matter had already been before Council on a number of occasions. On 26 July 2005, a resolution approving the second application was lost, in favour of a proposal for a site inspection. On 23 August 2005, the matter was back before Council but was deferred in order to allow Council to obtain its own heritage impact statement. On 29 September 2005, a motion approving the application was lost and a motion to defer the matter for the preparation of “grounds for refusal” was passed. On each of these occasions, Councillor Ebbeck sought to support the application, unsuccessfully. On the third occasion, he moved the motion in favour of granting consent, which obtained the support of a minority of councillors (including Councillor Ryan).

126 On about 21 September, there were a series of emails between Councillor Ebbeck and Councillor Cross in the course of which Councillor Ebbeck sought Councillor Cross’ support for the application. Councillor Ebbeck also communicated with Mr Allan and, it may be inferred, advised him to continue his own lobbying activities with other councillors, including Councillor Hall, who had been an opponent of the application. It appears that Councillor Ebbeck was sent a copy of a lengthy email to Councillor Hall, of which he approved. Some complaint is made of that expression of approval because the three-page email accused Mr McGovern of being “a serial complainer” and made statements which the appellants said were inaccurate. That is the substance of the case in relation to a reasonable apprehension of bias on the part of Councillor Ebbeck.

127 Until September 2005, Councillor Adrienne Ryan was the mayor of the respondent Council. Like Councillor Ebbeck, she was a supporter of the development application and voted accordingly at the four Council meetings when the item was on the agenda. There is no doubt that Councillor Ryan formed a firm view early in the history of the matter that the application should be approved. The exchange of emails with Mr Allan demonstrated that she shared his sense of frustration in relation to the opposition and the delay: in that sense, they may be said to have had a common cause. It also appeared that they had dealings separate from the development application and Councillor Ryan’s role as mayor. The detail of that was clarified only after the hearing in the Land and Environment Court through the production of further documents which showed that Mr Allan, in his professional capacity, had been the vendor’s agent in relation to a home purchase by Councillor Ryan. (The appellants sought to tender that material on the appeal. It was not produced during the course of the proceedings in the Land and Environment Court, was responsive to the relevant requirements for production and should be admitted on the appeal.)

128 Each of these matters will be dealt with by reference to the evidence. However, the fallacy underlying the appellant’s case was that Councillor Ryan was required to keep an open mind on the merits of the application until the final meeting at which the Council determined its response. Where a councillor forms a firm view as to the appropriate course to be taken there is no reason why he or she should pretend to maintain an open mind whilst the debate proceeds. If further material is presented, no doubt it should be considered, but it will not be a demonstration of bias based on prejudgment merely to maintain one’s original position if that position was properly adopted. The evidence demonstrated two critical factors in this respect: first, Councillor Ryan’s initial view was not uninformed and, secondly, she acted on the basis that Council should vote in accordance with recommendations made by its expert officers, unless they were shown to be wrong. The Court, in such a case, is not involved in assessing the correctness of views formed by decision-makers, except to the extent that holding a view shown to be erroneous may demonstrate a reasonable apprehension of bias in the sense of prejudgment, or reveal some legal error.

129 The emails relied upon by the appellants in relation to Councillor Ryan commenced on 1 June 2005. However, on 17 May 2005 a council officer, Mr David Hoy, sent her an email relating to the first application in the following terms:

130 It is clear from this communication, which was headed “Update – 49 Telegraph Road (DA 1417/04)”, that this was a matter in which Councillor Ryan was taking an ongoing interest. That was confirmed by her response to Mr Hoy on the same day stating:

131 On 24 May 2005 Councillor Ryan contacted Mr Hoy again, noting that she intended to visit the property on the following day and inquiring if there were any update he could give her. The visit was apparently postponed, possibly until 27 May, but on 26 May Mr Hoy produced a file note of a meeting with the mayor in respect of the property. The note read in part:

132 The first email from Mr Allan of 1 June was addressed “Dear Adrienne”, suggesting that they had already met, possibly on a site visit in late May. The content of the email was innocuous. The first application was decided by a council officer under delegation on 3 June 2005. Relevantly, the material demonstrated that Councillor Ryan was informed as to the detail of the proposal, had apparently visited the site and had certainly had discussions with council officers and was aware of their opinions, all prior to 1 June 2005.

133 Following the third Council meeting on 20 September 2005, and after a considerable exchange of emails, Councillor Ryan wrote to Mr Allan in the following terms on 21 September 2005:

134 The reference to new leadership was presumably to the fact that Councillor Ryan had by then been replaced by Councillor Elaine Malicki as mayor. The exchange provided evidence of her approach to planning matters, demonstrating a reason for her strong support for the application which was not indicative of bias or prejudgment.

135 Before turning to the communications between Mr Allan and Councillor Ryan which are said to give rise to an apprehension of bias on her part, it is necessary to recall that the decision, notified on 6 June 2005, to give consent to the first application, immediately became subject to challenge by the appellants in the Land and Environment Court. One ground of challenge was that, councillors having “called up” the application for consideration by the Council, it was incorrect for a Council officer to grant the consent under delegated power. The proceedings were commenced by application which joined both the Council and Ms Allan as respondents. This became the subject-matter of an email of 20 June 2005 from Mr Allan to Councillor Ryan. At that stage, Mr Allan was acting as vendor’s agent in relation to the purchase of a house by Councillor Ryan and started the email with a brief reference to that business. He then sought guidance as to how Council and he should deal with the litigation. In the course of the email he stated:

136 There was a further flurry of emails over the next two days of a fairly anodyne nature. Mr Allan also communicated with Council officers in respect of the proceedings and his intention to prepare a fresh development application. In written submissions, the appellants contended that the emails which followed over the two days, but mainly over 21 June, “show that Councillor Ryan took up Mr Allan’s cause with unrestrained enthusiasm”. That suggestion was not repeated in oral submissions and should be rejected as unfounded.

137 The next matter of complaint arose on 26 July 2005, the day upon which the second application was to go before the Council. The email in question was from Mr McGovern to members of Council. The point of complaint is that Councillor Ryan forwarded it to Mr Allan, a course said to demonstrate partiality because she did not forward Mr Allan’s emails to Mr McGovern.

138 Up until that time, and indeed thereafter, there was little in Mr Allan’s emails to which the appellants could be expected to respond. By contrast, Mr McGovern’s email of 26 July contained detailed criticisms of the application which would no doubt be raised by councillors. To forward such a document to the applicant’s husband, without comment, could not be taken to demonstrate partiality. Indeed, it is difficult to infer any particular view on Councillor Ryan’s part, based on that conduct.

139 At the meeting on 26 July, there was a motion for a site inspection. An amendment seeking to adopt the recommendation of Council’s officer was put but lost and the motion in favour of a site inspection was adopted. Mr Allan’s email to Councillor Ryan, sent later that evening, expressed exasperation and asked whether Mr McGovern was allowed “to come to my property and further manipulate the Councillors” at the site inspection.

140 On the following morning, Mr Allan sent an email thanking Councillor Ryan for her support and inquiring whether he should thank other councillors. In more formal mode, he and his wife also sent thanks to Councillor Hall, who had not previously been a supporter, for voting in favour of the application. Councillor Ryan responded:

141 On 28 July Mr Allan wrote to Councillor Ryan asking whether she would attend the site meeting and how it would run. She responded in the following terms:

142 On 17 August 2005 Mr Allan again emailed Councillor Ryan in the following terms:

143 At the Council meeting on 23 August 2005, on the motion of Councillor Hall, the application was deferred so that the Council could obtain an independent report from a heritage consultant. The following morning Mr Allan emailed Mr Michael Miocic, the responsible Council officer, with a copy to Councillor Ryan. He expressed his exasperation at some length. There were further exchanges with Mr Miocic (noted below). Councillor Ryan responded expressing regret at what had happened at the meeting and understanding that it had caused frustration for Mr Allan, for which she apologised. She then asked whether Mr Miocic had advised him when the matter might come back before Council and promised her continued support when it did. Mr Allan responded expressing some bewilderment and stating:

Councillor Ryan responded and commented on the lead up to the Council elections which she described as “dirty and fraught with stress”.

144 On 12 September, Mr Allan emailed Councillor Ryan expressing disappointment that she had not been re-elected as mayor and offering his support should she need it. There was a further exchange of condolences and reassurance.

145 On 16 September Mr Allan wrote to the new mayor, Councillor Malicki, congratulating her effusively and inviting her to support the staff report in favour of granting the application.

146 On 16 September Mr Allan and his wife sent an email, on his letterhead, a copy of which was directed to Councillor Ryan, but which was in a more formal style suggesting that it was sent to all councillors. It noted that the independent heritage report “is not glowing”, but the staff recommendation remained supportive. Councillor Ryan responded:

147 At the Council meeting of 20 September 2005 there were conflicting motions, one seeking approval of the application, another seeking amendment to have the matter deferred for preparation of reasons for refusal. The amendment was passed and the application was deferred to obtain reasons for refusal. The vote was close, five supporting the amendment as passed and four being opposed.

148 Later that evening Mr Allan emailed Councillor Ryan again, in the following terms:

149 Councillor Ryan responded late that night by an email explaining her position, parts of which have been set out above at [133]. Other comments in the email included the following:

150 A further site inspection was arranged for 29 September. The application came back before Council on 11 October 2005, with no further critical exchanges between Mr Allan and Councillor Ryan. At that meeting, the recommendation for approval of the second application was passed by a clear majority of 7-3. Councillors Ebbeck and Ryan voted in favour of the motion.

151 As the trial judge noted, the starting point in considering whether the conduct of a particular councillor demonstrated a reasonable apprehension of bias was to identify the statutory scheme which conferred authority on the council to consider development applications. That scheme involved the broad charter given to a council under the Local Government Act, which included the function “to ensure that, in the exercise of its regulatory functions, it acts consistently and without bias, particularly where an activity of the council is affected”: s 8(1). The regulatory functions of councils are identified in Chapter 7, but those do not include functions under the EP&A Act. Apart from reference to specific provisions of the latter Act, the parties treated the operation of local government and the function of development approval as sufficiently well-understood not to require consideration and, presumably, as not suggesting any basis for departure from the statements of principles in the case-law relied upon by the trial judge. Accordingly, apart from noting that a councillor is a member of the governing body of a council and is a person elected to represent the interests of the residents and ratepayers (s 232), little by way of assistance was sought to be obtained from the scheme of the legislation.

152 The trial judge referred to Canadian authority. The Canadian Supreme Court adopted the following approach to questions of bias in respect of local councillors in Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities) [1992] 1 SCR 623 at 637-638, the judgment of the Court being delivered by Cory J:

153 This approach would appear to be materially different from that adopted in Australia: both the satisfaction of the court as to the fact, and the requirement not merely as to the likelihood of an informed observer being satisfied that the person might hold such a view, but the fact that an unassailable opinion was held, clearly invoke a different test.

154 Her Honour also referred to the English decision of R v Amber Valley District Council; Ex parte Jackson [1985] 1 WLR 298, a case involving members of a council voting on party lines in favour of a particular development: at [74]. Her Honour compared the refusal of Woolf J in that case to intervene with the intervention by Zeeman J in R v West Coast Council; Ex parte The Strahan Motor Inn [1995] TASSC 47; (1994) 4 Tas R 411 and that of the South Australian Full Court in The Queen v Corporation of the City of Marion; Ex parte Independent Grocers’ Co-operative Ltd (No. 2) (1984) 37 SASR 436. Her Honour also referred to Pipi Holdings Pty Ltd v Council of the City of Caloundra [2000] QSC 343; 111 LGERA 117 at [76]- [77] (Douglas J) and decisions, not directly on point, in the Land and Environment Court: at [78]-[79].

155 Without rehearsing the various statements relied upon, a number of propositions can be identified in this line of authority. First, in order to establish prejudgment, it is necessary to identify a period of time during which councillors should maintain an open mind and statutory procedures which may indicate the means by which an appropriately informed decision is to be reached. Thus, in Pipi Holdings, Douglas J took account of the fact that, in considering whether to resume land, councillors must already have formed a preliminary view in order to issue a notice of resumption, before hearing objections from the landowner: at [23].

156 Secondly, some decisions will have a higher policy content than others. Again referring to Pipi Holdings, although the decision to resume private land involved an immediate deprivation of property for the landowner, the matter for determination required councillors to consider generally the development needs of the city and alternative ways of meeting those needs. Whether the city needed a car park and whether alternative land was available were likely to be matters upon which councillors would form reasonably firm views without hearing from the owner of the land sought to be resumed. His representations were likely to be somewhat more confined in their scope.

157 Thirdly, the fact that decision-making authority is vested in an elected body of councillors is inconsistent with any implicit assumption that the body will exercise its powers in relation to planning issues with a blank mind as to what may generally be appropriate for the development of an area and what may not. Thus, in Strahan Motor Inn, the fact which satisfied Zeeman J that there had been prejudgment on the part of one councillor was not that he held strong views that the advertising sign in question was entirely inappropriate, but that he effectively became an objector, making representations to the council of which he was also a member: at 427. Such conduct may in an appropriate case result in the court invoking the principles stated in Stollery: see Strahan Motor Inn at 420.

158 As will be seen below, this last consideration forms the only real basis for the appellants’ objection to the conduct of Councillor Ryan in the present case and, to a lesser extent, of Councillor Ebbeck. There is no clear line to be drawn between speaking firmly, even passionately, in favour of one’s view at a council meeting with the intention of influencing other councillors and the espousal of a cause as an advocate. Matters of controversy, where a council divides narrowly on how to decide an application, are likely to be precisely the sort of case where such conduct may be expected. It does not follow that such conduct necessarily gives rise to a reasonable apprehension of bias. The reason why it may not is that the councillor may have had ample opportunity to form a firm view of a matter, within the statutory confines of the decision-making process, prior to such conduct. In that situation, no reasonable apprehension of bias on the basis of prejudgment, as opposed to judgment upon a consideration of relevant matters, could arise.

159 In a judicial context, putting proposals in favour of a particular conclusion to a judicial officer in private, or even discussing a case with a judicial officer in the absence of one or all of the parties, may give rise to a reasonable apprehension of bias: see Re JRL at 346-347 (Gibbs CJ). However, the present complaint is not that Mr Allan made representations to Councillors Ryan and Ebbeck, without notifying the appellants, but rather that, in appealing to those who supported his wife’s application, he was in effect inviting them to become advocates of the application. Further, at times his communications descended to denigratory remarks about the appellants, to which the councillors responded sympathetically, thereby implicitly adopting the denigration as their own.

160 It is clear that principles applicable to judicial institutions do not apply generally. As explained by Mason J in Re JRL at 350:

161 Even where the rules of natural justice apply, their content will be affected by the nature of the institution. The appellants were objectors, but were in no sense parties to any form of civil dispute. Rather, they were persons having an interest in the outcome of a development application on neighbouring property, who had exercised rights to object under a planning instrument. They, or at least Mr McGovern, had numerous communications by email with individual councillors, which do not appear to have been communicated to other councillors or to the applicant. Mr McGovern attended each Council meeting and spoke against the application. What councillors had to take into account were relevant matters, specified by s 79C of the EP&A Act. These included “the suitability of the site for the development” and “the public interest”: s 79C(1)(c) and (e). Councillors were obliged to exercise their discretionary power in accordance with such provisions. The extent to which, in the particular statutory scheme of the EP&A Act, councillors will carry out their statutory functions if they vote according to party political lines, is a matter which need not be addressed. Beyond that, it is possible to envisage cases in which an application has been invalidly determined because of conflicts of interest, corruption, refusal to address a matter on the merits or other forms of irregularity. The circumstances in which bias in favour of an applicant, based on representations made by the applicant denigatory of an objector, could invalidate a decision are less easy to envisage. It is sufficient to say the material set out above provides no basis for such a finding.

162 The only material not available to the trial judge was that which clarified the role played by Mr Allan, as the vendor’s agent in relation to the purchase by Councillor Ryan of a home. This demonstrated no pecuniary interest between them or, indeed, more than a degree of social contact (albeit for a professional purpose on the part of Mr Allan) which tends to explain a degree of familiarity in their email communications. There is, for example, no suggestion of any impropriety by way of exchange of favours arising out of that separate contact. Accordingly, this material, which was tendered on the appeal, demonstrates no additional basis to overturn her Honour’s findings.

163 On 3 June 2005 the first application was determined, purportedly under delegated authority, by a Council officer, Mr Hoy. The challenge brought in the Land and Environment Court relied in part on the contention that the delegation had been revoked prior to the determination. It also relied upon various alleged deficiencies in the application and the process by which it was amended, without notification, prior to determination.

164 On 23 June 2005, Mrs Allan lodged the second application. This course was taken, the appellants claimed, in order to render otiose the proceedings in relation to the first application. The complaint is not that this was an improper purpose on the part of the applicant, invalidating the second application, but rather that it was a scheme devised by Mr Allan with the Council’s Director of Development and Regulation, Mr Miocic. This, it was alleged in the notice of appeal, though not in the relevant points of claim in the Land and Environment Court, gave rise to the inference that Mr Miocic had a “personal interest” in securing Council’s approval for the second application. Mr Miocic was described as playing a “significant role” in the Council’s decision to approve the second application, in part based on comments made by him at the Council meeting on 11 October 2005.

165 Her Honour accepted that Mr Miocic was involved in the preparation of the recommendation on the second application and that he may have had considerable involvement in briefing Council, no doubt partly through contact with councillors not revealed by the record: Judgment at [105]. Complaint is made, however, that her Honour found there to be “no suggestion here that Mr Miocic would gain personally or financially if the [second application] was approved”: at [104]. This, the appellants submitted, “misstated” the appellants’ case which was that Mr Miocic “had a personal interest” in securing Council’s approval.

166 The answer to this submission is that the pleading alleged an apprehension of bias arising from Mr Miocic’s support of the proposal for the purpose of rendering the Court challenge to the first development consent otiose. Her Honour summarised the submissions before her in similar terms: at [38](f). The comment in the judgment to which objection was taken was to be found in a discussion of the circumstances considered by the High Court in Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438: Judgment at [104]. In that case, the grant of the licence to the appellant had been challenged for alleged bias arising from pecuniary interest. As explained by Gleeson CJ at [8]:

167 In circumstances where it was demonstrated that the Minister had given independent consideration to the issues involved, no reasonable apprehension of bias arose. However, the comment of Pain J in the present case was that there was “no suggestion” that Mr Miocic was in a similar position to the officers in Hot Holdings. So understood, her Honour did not misstate the appellants’ case. It was only by impermissibly taking part of the sentence out of context that such a complaint could be made. The ground of appeal was meritless.

168 It appears from the emails between Mr Allan and Mr Miocic that the lodging of a second application, identical to the first, was proposed by Mr Miocic. However, the suggestion that he had some personal benefit to be obtained from approval of the second application because the litigation concerning the first application reflected badly on him and his subordinates was entirely speculative. So far as the revocation of delegated authority was concerned, this Court was not taken to any evidence which might have demonstrated that Mr Hoy was at fault in determining the application. The alternative basis of criticism of Council officers might have derived from their failure to identify the various inadequacies of the first application alleged in the Land and Environment Court proceedings. However, if that were Mr Miocic’s concern, his motive in proposing a second identical development application would have been obscure.

169 Mr Allan’s contact with Mr Miocic appears to have followed from an email to Councillor Ryan advising her of the commencement of proceedings against Mrs Allan and the Council. The emails of 21 June make clear that on being apprised of this fact, she sought a briefing from the director and arranged for him to ring Mr Allan. There then appears to have been telephone contact between Mr Miocic and Mr Allan, which was followed by an email from Mr Allan on 22 June, indicating that he was preparing a fresh development application to be submitted forthwith, in accordance with Mr Miocic’s proposal and “for the benefit of us and Council”. He also offered (more than once) to meet Mr Miocic at his home to show him the proposal on site. There was no evidence that any such meeting occurred on site. Another email from Mr Allan to Mr Miocic on 22 June sought an assurance that a fresh development application would be dealt with with some urgency “for our mutual benefit so that this ridiculous, costly legal case can be averted”. There appears to have been a telephone discussion on the early afternoon of 22 June in the course of which Mr Allan had raised the possibility that what he later described as “two useless conditions” could be removed when the fresh application went before Council. Mr Miocic responded:

170 In an answering email, Mr Allan set out in more detail his objections to the conditions and concluded:

171 The second application was lodged on 23 June, following which Mr Miocic emailed Mr Allan to say that his staff “are now in the process of fine checking the information you submitted. We will call you within 24 hours if anything is missing”.

172 Whether Mr Allan thought he had Mr Miocic’s support for removing the conditions is unclear. However, on 12 July 2005 Mr Miocic emailed Councillor Hall stating, in part:

173 On 18 and 19 July Mr Allan sent two emails to Mr Miocic seeking access to the Council’s file, so that it could be submitted to his lawyers. That request was repeated on 21 July, with a response that the matter had been referred to Council’s corporate solicitor. Mr Allan responded:

175 The appellants’ complaint about the manner in which the second application was processed was that the staff report failed to deal with the appellants’ objections and that Mr Miocic demonstrated that he saw his role, inappropriately, as being to promote the approval of the second application by Council.

176 These complaints are without substance. Given that the appellants attended each Council meeting and spoke against the application, it is difficult to see what benefit could have been obtained by the staff report omitting to deal with their complaints. Nor is there any suggestion in the material that Mr Miocic in some way improperly influenced the staff report. Rather, he supported the view that the previous report, prepared in relation to first application, was adequate and should go before Council. It was a public document. Further, there is no impropriety to be inferred from the role played by Mr Miocic. It is apparent that in some respects he did not share Mr Allan’s views as to what course was appropriate, particularly in relation to the conditions. On the other hand, it was true that this was an unusual application to put before Council in that an earlier application (as to the full history of which not all councillors may have been aware) was before the Land and Environment Court. There is nothing improper in seeking to avoid litigation. There must be some additional factor giving rise to impropriety, which is not apparent here.

177 In Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72, Gaudron and Gummow JJ noted in respect of a similar dispute arising from a council decision at [12]:

178 This was seen to be an application of the principle stated in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 at 35-36. This case demonstrates the importance of that principle. However, it is not clear that the principle was in danger of being breached. In Oshlack, the proper opponent, the developer, did not seek to uphold the Council’s decision, at least on appeal. In the present case it is clear that Mr Allan, on his wife’s behalf, was actively obtaining legal assistance in respect of the proceedings in the Land and Environment Court. There was no evidence as to what steps the Council was taking to defend its first consent, although there was evidence that Mr Allan was anxious for it to play its part.

179 In any event, all that can be said about Mr Miocic’s role is that he took steps to ensure that councillors were fully apprised of the circumstances of the second application and, no doubt, sought to support the officer’s recommendation in favour of granting consent. His activities prior to the first meeting were not successful. There is an absence of evidence as to what steps he took thereafter. On the other hand, what does appear from the evidence with a degree of clarity is that councillors, over four separate meetings, exercised a high degree of independent judgment, first seeking a site inspection, then an independent heritage assessment, then reasons for refusal, before ultimately granting consent at the fourth meeting.

180 In Hot Holdings, there was discussion in the joint judgment of Gaudron, Gummow and Hayne JJ (with whom Callinan J agreed) as to the application of principles of bias in relation to an officer engaged in the decision-making process. Their Honours stated at [52]:

181 The language of “conduct for the purpose of making a decision” was taken from s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), although that statute was not in point. To similar effect at [23], Gleeson CJ noted the approach adopted in Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at [45], in the opinion of the Court delivered by L’Heureux-Dubé J, in relation to the role of a subordinate officer:

182 However, as Gleeson CJ explained, a distinction must be drawn between an officer having “a central role” and one whose involvement was “peripheral” and whose contribution was not significant: at [24]. Further, as noted by McHugh J at [74]:

183 In the present case, it was not established that Mr Miocic had such an interest in the outcome of the second application that his support for the officer’s recommendation demonstrated apprehension of bias based on interest. But even if such a link could be established, it was not an interest entirely divorced from the merit of the application; his association with an applicant in circumstances where the application already had the support of Council officers who had assessed the process, was of a kind which might readily have been anticipated without surprise by councillors with whom he discussed the matter. Each of the grounds relating to the involvement of Mr Miocic should be rejected.

184 Three grounds of appeal contend that mandatory statutory procedures were not followed, invalidating the consent to the second application. Perhaps by way of an alternative position (though the purpose was not apparent from either the notice of appeal or the written submissions and no comment was made in oral argument upon the matter), the appellants also complained that the breaches of statutory procedure were “relevant considerations” which were not taken into account by the Council in reaching its decision. It is appropriate to deal with the matters identified separately and chronologically, as any failure of the second application to comply with statutory requirements must be treated as non-compliance with a precondition to the power of Council to determine the application.

185 The first step in the appellants’ argument must be to establish what was a mandatory requirement for a valid development application. Section 78A of the EP&A Act provides that a person may apply to a consent authority for consent to carry out development. It prescribes preconditions in certain cases (not presently relevant) and states that regulations may specify things that “are required to be submitted with a development application”: s 78A(9).

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and

(b) if the consent authority so requires, must be in the form approved by that authority, and

(d) must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission.”

187 The relevant ground in the notice of appeal only referred to failure to comply with cl 50(1)(b): nevertheless, non-compliance with paragraphs (a) and (b) was relied upon in submissions which complained, in particular, of documents which failed to accompany the application. The missing documents, to which reference was made in the written submissions, were a survey prepared by a registered surveyor, a statement of environmental effects and a heritage impact statement. In the course of oral submissions, some emphasis was placed upon the supposed inadequacies of the “site plan” required by cl 2(1)(a) of Schedule 1, Part 1 of the EP&A Regulation in accordance with the matters specified in cl 2(2).

188 Relevantly for present purposes, Schedule 1, Part 1 to the EP&A Regulation contains two parts. The first prescribes “information” to be included in a development application; the second prescribes documents which must accompany the application. Again omitting irrelevant portions, cl 2 of Schedule 1 provides:

(2) The site plan referred to in subclause (1)(a) must indicate the following matters:

(4) A statement of environmental effects referred to in subclause (1)(c) must indicate the following matters:

189 Although not applicable in the present case, it should be noted that s 78A contains within its terms express mandatory requirements, requiring, in respect of a wilderness area, consent to the development under the Wilderness Act 1987 (NSW) (sub-s (7)); in relation to a designated development, that the application be accompanied by an environmental impact statement (sub-s (8)(a)), and in areas containing critical habitat or threatened species, a species impact statement (sub-s (8)(b)). It is well-established that, absent substantial compliance with such statutory prescriptions, there can be no valid determination of such an application. There are three principles which underlie that conclusion.

190 First, the language throughout is mandatory and thus invokes the principles set out in Scurr v Brisbane City Council [1973] HCA 39; 133 CLR 242 at 255 (Stephen J); see also Helman v Byron Shire Council (1995) 87 LGERA 349 at 358-359 (Handley JA, Kirby ACJ and Priestley JA agreeing). Secondly, the requirements are not in terms conditioned on an assessment by council of the need for such material. On one view that is understandable: if the environmental effects of a development are not self-evident, council might be inclined to waive the need for a statement of environmental effects. On the other hand, the purpose of environmental protection, identified in s 5 of the EP&A Act, may best be served by a universal requirement for a statement of environmental effects, which will be of greatest value in those cases where possible effects are not self-evident. Thirdly, if the requirements for a valid application are not dependent on the opinion of the consent authority, they are more properly seen as essential conditions for the exercise of power, the existence of which will ultimately depend upon the opinion of a court in the event of a challenge: see Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55.

191 The terms of sub-s 78A(9), like those of sub-ss (7) and (8), are mandatory. There is no reason why they should be read as not prescribing essential conditions of a valid development application. They do not pick up all requirements of the EP&A Regulation, but only those specifying “other things” to be submitted with a development application. The principles established with respect to the predecessor to s 78A, s 77(3), would appear to be applicable. Thus in Botany Bay City Council v Remath Investments No. 6 Pty Ltd [2000] NSWCA 364; 50 NSWLR 312, Stein JA stated at [14]:

192 There may be countervailing considerations. One is the prescription in s 78A itself of the need, in particular cases, for an environmental impact statement or a species impact statement: see s 78A(8). That course may be seen to give greater legal import to those requirements, as compared with requirements specified by regulation. Given the wide scope of “development” requiring consent, it may be thought unlikely that Parliament intended that invalidity should flow from failure to comply with matters set out in regulations. Another important aspect underlying Scurr and Helman was the involvement of the public arising from requirements for the exhibition or notification of particular applications, which were not applicable in the present case.

193 In addition, there are questions as to the construction of the EP&A Regulation itself. In particular, it is necessary to consider whether, despite its mandatory language, the documents identified in Schedule 1, cl 2 are properly treated as things required to be submitted with a development application for the purposes of s 78A(9).

194 The requirements in the EP&A Regulation must be considered in their context, including cl 51(1) which empowers a consent authority to “reject” a development application within seven days after receiving it, if it does not comply with the requirements of cl 50(1)(a) or is “illegible or unclear as to the development consent sought”. It might be thought curious if such a development application which was not so rejected was nevertheless invalid. Indeed, if it were not a development application at all, it is curious that cl 51 should refer to it as such. If the application is rejected, it is taken for the purposes of the Act “never to have been made” and the application fee must be refunded: cl 51(3) and (4). On the other hand, it may be that cl 51 merely allows the Council to cut short any uncertainty which might arise from the lodgement of an incomplete application. If that were the case, the approach of Stein JA in Remath Investments would have continued operation in those cases where the application was not rejected.

195 As noted above, the requirements referred to in the EP&A Act, s 78A(9), are limited to those “other things ... required to be submitted with the development application”. It does not refer to information to be contained in the application, or the form of the application, or the manner in which it is to be lodged. It refers only to accompanying things, such as documents and then only to those documents made mandatory by regulations. This would not in terms pick up the requirements of cl 50(1)(a) in relation to the information to be included, nor the requirement in par (b) in respect of the form of the application. It would, however, pick up the requirement in respect of accompanying documents in par (a) and the requirement for payment of the fee in par (c). On that basis, the only compulsory documents required by Schedule 1 to the EP&A Regulation were a site plan, a sketch of the development and a statement of environmental effects. The requirements of a site plan are identified at cl 2(2) of Schedule 1, but all that is required in respect of the various elements is that the plan “must indicate” those matters. Similarly, cl 2(4) merely requires that a statement of environmental effects “must indicate” the environmental impacts of the development. The sketch “must indicate” information as to the location of any proposed buildings or works, the detail of which is not relevant because it is not in issue in the present case: see cl 2(3).

196 Parliament used mandatory language in s 78A. There is no explicit suggestion that a distinction is to be drawn between the requirements specified in sub-s (8) and those which the regulations may specify, pursuant to sub-s (9). The only indication that a failure substantially to comply with the requirements might not necessarily lead to invalidity is to be found in the power to reject an application contained in cl 51. However, that provision in the EP&A Regulation cannot in principle affect the construction of the statute and, in any event, has its own function, as discussed above. That function is not inconsistent with the documents prescribed in Schedule 1, cl 2, being “requirements” for the purposes of s 78A(9).

197 It is not to be doubted that the requirements of s 78A(8) are compulsory, in the sense that failure to comply will result in invalidity of the ultimate determination: see Helman. Nor is it in doubt that the need for a statement specified in that provision is a question for objective determination, ultimately by a court if the circumstances of a particular case are in doubt, and not a matter for the opinion of the consent authority: see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 and, of direct relevance, Timbarra Protection Coalition Inc.

198 However, the approach to be taken by this Court in relation to s 78A(9) must accord with more recent authority, including Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; 150 LGERA 81. In that case, Tobias JA (Young CJ in Eq and Campbell J agreeing) rejected this approach, concluding that the failure to include a statement of environmental effects did not invalidate the consent: at [60]-[90]. A significant element in his Honour’s reasoning was that the statement of environmental effects served a less central role than the statements required under s 78A(8) and was not the subject of any detailed requirements either as to the qualifications of its author or its contents. Curiously, this reasoning was the reverse of the objection to a mandatory requirement engaging invalidity for non-compliance discussed in Helman. As his Honour correctly noted at [48], Handley JA in Helman drew a distinction between different mandatory requirements (then found in s 77(3)), noting that “the content of these requirements vary”: Helman at 355. Nevertheless, the argument in Helman was not that requirements easily satisfied should not be treated as engaging invalidity for non-compliance, but that the heavy burden of preparing an environmental impact statement within the terms of the legislation was so great as to make it highly unlikely that Parliament intended non-compliance to engage invalidity. It was that argument which was rejected in Helman, on the basis that the courts “have insisted substantial compliance without being over technical or astute to find fault”: at 356. It follows that the lower the level of particularity prescribed by the statute, the easier will be substantial compliance: cf Cranky Rock Road at [66]-[68].

199 Another strand in the reasoning in Cranky Rock Road was that one could well envisage circumstances in which a consent authority could reasonably reach its decision without one of the prescribed documents, “where the absence of that information or those documents is not in the particular case of such significance as to prevent it from performing its statutory duty under the EP&A Act when determining the application”: at [73]. However, it is by no means clear that the legislation vested power in the consent authority to determine what was and was not mandatory, in relation to the accompanying documents prescribed by regulations, but not in relation to a species impact statement: cf Timbarra Protection Coalition.

200 The Court in Cranky Rock Road felt able to distinguish the reasoning in the decisions of this Court in Helman, Timbarra Protection Coalition and Kindimindi Investments, preferring the contrary reasoning in a series of cases in the Land and Environment Court. There was no challenge to the correctness of the decision in Cranky Rock Road and accordingly this Court should apply it in the present case. On that approach the appellants must fail because absence or inadequacy of documents required by Schedule 1, cl 2, will not spell invalidity of the application. However, for reasons to be explained, even a stricter approach to the requirements of documents accompanying a development application will not assist the appellants.

201 On the legal assumptions most favourable to the appellants, the development applications had to be accompanied by a site plan, a sketch of the development and a statement of environmental effects in order for the determination of the application by Council to be valid. The appellants’ case, however, took the matter a step further, arguing that other documents, including a survey plan and a heritage impact statement were required by the Council’s own guidelines for development applications. However, those guidelines did not, of themselves, involve statutory preconditions to the exercise of power by the Council as a consent authority. Such material could only be considered mandatory if it were necessary in order for the Council properly to carry out its consideration of relevant matters, pursuant to s 79C(1) of the EP&A Act. As already explained, the primary issue in the case was the effect of the construction of the proposed carport on the heritage values of the appellants’ neighbouring property, which was a listed “heritage item”, based on views of the property from the street. It could not be said that the Council did not give appropriate consideration to that issue. How it set about that task was a matter for it. The absence of a survey plan or a heritage impact statement did not of themselves affect the validity of the consent. In fact there were two heritage impact assessments before the Council and it had conducted a site inspection.

202 So far as the site plan was concerned, evidence had been tendered in the Land and Environment Court demonstrating inaccuracies and errors in the site plan filed with the 2005 application. However, it was only necessary that the plan substantially comply with a requirement that it “indicate” the matters referred to in cl 2(2) of Schedule 1 of the EP&A Regulation. As explained in Helman, the Court will not approach this question in a technical manner, nor be astute to find fault: at 356. The evidence was not of a kind which established a major deficiency necessary to demonstrate substantial non-compliance with this lenient standard.

203 In relation to the statement of environmental effects, the primary complaint was that the statement lodged in support of the application had not been “certified” as required by the Council’s guidelines for preparation of supporting documentation. The “certification” required by Council was not a statutory requirement. In any event, the statement was certified and the appellants’ complaint was that the certification in the second application was a photocopy of the document from the earlier application which contained inaccuracies in the plans. The challenge is legally misconceived and was correctly rejected by the primary judge as a ground of invalidity. That conclusion was in accordance with Cranky Rock Road and would have been rejected even if the alternative legal analysis suggested above were to be applied.

204 In separate grounds, the appellants complained that there were breaches of procedural fairness on the part of Councillors Ryan and Ebbeck in failing to disclose their relationship and communications with Mr Allan to the Council and to objectors and, separately, in taking into account material not available to the appellants, “namely information obtained ... at a site visit on 29 September 2005”.

205 These grounds were misconceived. It is not necessary to determine whether, as appears doubtful, the last point was pleaded, argued in the Court below or pressed in this Court. The substantial difficulty with the appellants’ argument is that it treats them as a party to the Council’s decision. That was a mischaracterisation of their role in the process of determining a development application. They were objectors, who, it may be assumed, were entitled to have their views taken into account. That happened. They had no right to be provided with material available to councillors, absent some statutory obligation, as to which none was identified.

206 In relation to Councillors Ryan, Ebbeck and Hall, it was said that each took account of allegations by Mr Allan concerning the bona fides of the appellants and the lack of merit in their objections to the application. In relation to Councillor Hall, it was also said that he took into account a belief that he “would or might be financially at risk” if he failed to vote in favour of the application. These complaints are misconceived. In relation to the views presented by Mr Allan, it might have been shown (though it was not in fact) that they were erroneous; even were that finding assumed, there is no statutory prohibition on members of a consent authority taking into account submissions from an interested member of the public relevant to the exercise of the authority’s powers. Submissions do not become “irrelevant considerations” because they are misguided or erroneous. In any event, the appellants are unable to demonstrate what the councillors took into account in reaching their decisions. No reasons were provided, nor were any required. Even if it were demonstrated as a fact that individual councillors took into account legally irrelevant considerations, there would be a further question as to whether the same principles apply in relation to such a complaint with respect to members of a collegiate body, as apply in relation to bias, a question which need not be addressed in the circumstances.

207 The separate complaint with respect to Councillor Hall apparently derived from an email of 6 October 2005 to the general manager of Council. So far as can be gleaned from the text, Councillor Hall had been approached by solicitors acting for the Council seeking access to documents held by him, possibly for the purposes of considering Council’s response to the legal proceedings in relation to the first application. Councillor Hall was anxious to obtain reassurance from the general manager that he was not personally at risk in relation to the litigation. The following day he apparently received a letter from Deacons, solicitors, and asked the general manager to “respond to Mr McGovern direct”. Over the following days, there were email exchanges between Councillor Hall and Mr McGovern relating to the second application. In numerous exchanges over the following days with both Mr Allan and Mr McGovern, Councillor Hall maintained his distance from each. At the Council meeting on 11 October he asked questions concerning the documentation and subsequently made two considered contributions to the debate dealing with the merits of the application and with the objections. In the course of those contributions, he indicated his reasons for moving a motion of approval for the application. There is no hint in his comments that he had any personal concerns. Regardless of other difficulties, the factual basis for the complaint was not made good.

208 The appellants contended that part of the proposed development was located “at the first floor level”, thereby engaging the operation of Development Control Plan 38. The failure to take it into account was therefore said to be a contravention of s 79C(1)(iii) of the EP&A Act.

209 This matter arose from a reference in the objection filed by the appellants on 7 July 2005 in which it was noted that lines of sight extended from a proposed terrace and meals room across the rear of their property. The plan indicated that the rear terrace was 2.33 metres above the natural level of the land at that point. The letter of objection continued:

210 A “summary sheet” prepared by Council officers for the meeting of Council on 26 July 2005 identified as an applicable policy, Development Control Plan 38. Further, the report prepared by Council officers stated:

211 At the Council meeting on 26 July 2005 Mr McGovern addressed the Council noting, as a complaint about the adequacy of the heritage impact statement, that it did not identify the fact that “the so called ground floor addition ... is in fact 2 metres into the air”. There is no doubt that most of the discussion at the Council meetings, including the substance of Mr McGovern’s comments at each meeting, were directed to the proposed carport on the front of the property. Evidence relied upon to demonstrate a failure to take into account a relevant consideration must pay regard to the context in which the particular matter arose. Because it was addressed in the staff report, although thereafter treated as a relatively minor consideration in the debate, the appellants have failed to establish that it was not taken into account.

212 The statutory obligation was to have regard to an applicable development control plan, not to apply it correctly. It is not possible to say on the evidence that the relevant part of the identified development control plan was not taken into account. It clearly was, although Council’s officers responsible for the report interpreted it in a manner with which the appellants disagree. Nevertheless, the substance of the objection was addressed. The ground must be rejected.

213 Separately from their challenge to the substantive judgment below, the appellants also sought leave to appeal from a second judgment of the Land and Environment Court with respect to costs, which was delivered on 11 February 2008: McGovern v Ku-ring-gai Council (No. 2) [2008] NSWLEC 50. Leave to appeal was required pursuant to the Land and Environment Court Act 1979 (NSW) s 58(3)(c) (“the LEC Act”). The issues raised on the application for leave concerned the requirement that the appellants pay the costs of the proceedings with respect to the first application and that they pay the costs of both the proponent of the development and the Council. At least in relation to the second point, a similar question arises with respect to the costs of the appeal. For that reason, and because the circumstances of the substantive case have been fully explored in this Court and because the application raises a question of principle, leave should be granted. It is therefore convenient to continue to refer to the applicants as the “appellants”, consistently with the preceding reasons in relation to the substantive appeal.

214 The proceedings in the Land and Environment Court were conducted on the basis that any order sought as to costs fell for consideration under s 69 of the LEC Act, as then in force. That section conferred on the Court, subject to the rules and any other Act, a general discretion to determine by whom and to what extent costs were to be paid. It was not contended that there was any rule applicable in class 4 proceedings in the Court which governed the exercise of that statutory power.

215 As the primary judge recognised, s 69 was repealed, with effect from 28 January 2008: see Courts Legislation Amendment Act 2007 (NSW), Schedule 6 [28] (“the 2007 Amendment Act”). There were no transitional or savings provisions in relation to that repeal. The 2007 Amendment Act also amended the Civil Procedure Act 2005 (NSW) to insert in Schedule 1 a reference to the Land and Environment Court, in respect of its jurisdiction including class 4 proceedings, thus rendering Parts 3-9 of the Civil Procedure Act applicable in the Land and Environment Court. Accordingly, the costs order made by the primary judge on 11 February 2008 should be understood to have been made under s 98 of the Civil Procedure Act, which is relevantly in the same terms as the repealed provision of the LEC Act.

216 Section 98 of the Civil Procedure Act is subject to “rules of court”. Those rules include the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”): see Civil Procedure Act, s 10. The Civil Procedure Act and the UCPR apply to proceedings in the Land and Environment Court commenced before 28 January 2008, although the Court may make an order “dispensing with the requirements of the uniform rules” in relation to such proceedings: Civil Procedure Act, Schedule 6, cl 15. (It is not necessary to consider the effect of the general savings provision in cl 17 of Schedule 6, that provision being subject to the Schedule, and hence to cl 15 thereof.)

217 It would appear to follow that the power to order costs was subject to the operation of UCPR r 42.1, requiring that “costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs”. Her Honour applied the principle that costs should follow the event “in the absence of disentitling conduct”: at [12]. That was not in terms in accordance with the rule, but her Honour referred to the rule and stated that she did not consider the approach would be different under the rule. Nevertheless, it is at least arguable that her Honour restricted her consideration of factors upon which the Court might otherwise order, in a manner not consistent with the rule, although the language of ‘disentitling conduct’ has support in the authorities.

218 As has been noted, the proceedings in the Land and Environment Court commenced with a challenge to the determination of the first application and were subsequently amended to include a challenge to the determination of the second application. There was no discussion in this Court as to the propriety of amending proceedings in the Land and Environment Court to include a challenge to a determination which had not been made at the time the proceedings were commenced: cf Civil Procedure Act, s 64(3). Accepting that that course was available in the Land and Environment Court at the relevant time, the practice is apt to give rise to confusion.

219 Proceedings in relation to the first application were not rendered futile by the lodgment of the second application, nor indeed by the grant of consent to that application. It was assumed that the appellants needed to succeed in setting aside both determinations in order to prevent the development. (It was, of course, sufficient for the developer if the determination of the second application were upheld.) On the other hand, that state of affairs was complicated following the “surrender” on 28 October 2005 of the consent to the first application, which surrender had been a condition of the consent to the second application. At least in theory, the legal consequence of the “surrender” may have been in doubt if the challenge to the consent to the second application were successful.

220 In their written submissions, the appellants stated that on 9 December 2005 they sought and obtained leave to file an amended class 4 application, which no longer sought relief in respect of the first application. Although the submissions purported to annex such a document, what was in fact annexed was a copy of amended points of claim of 8 December 2005. There was no reference in the index to the appeal books to any amended application, other than one filed on 28 October 2005, which sought declarations with respect to the consent given on 11 October 2005 but continued to seek orders in respect of the earlier consent. Further, the third further amended points of claim, filed on the penultimate day of the hearing, continued to make allegations in relation to the validity of the 2004 application.

221 In these circumstances the preferable course is to treat the challenge to the determination of the first application as a separate matter which was not resolved and to attribute to that part of the proceeding the costs of all parties incurred prior to the date on which the second respondent surrendered the consent to the first application, namely 28 October 2005.

222 In respect of an unresolved proceeding, it will usually be appropriate for the Court to make no order as to costs: see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 at 625 (McHugh J). However, as his Honour noted, at 624-625:

223 One such case was Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386, in which this Court awarded costs in circumstances where the claimants had not acted unreasonably in commencing or prosecuting their claims until they became futile, but were nevertheless ordered to pay the respondents’ costs because the proceedings were abandoned only when they became untenable as a result of a conclusion reached in other proceedings raising the same issue.

224 In the present case the appellants contended that they should have their costs in the Court below in respect of their challenge to the determination of the first application. In support of that proposed order, the appellants submitted (by written submissions filed after the hearing of the appeal, on 11 July 2008) that the second respondent had conceded before the primary judge that the first consent was invalid. Where and in what circumstances that concession was made is not apparent from the submissions and is not a matter upon which the Court is prepared to place reliance. The submissions of the Council are inconsistent with such a stance. In any event, it is not apparent to this Court that the challenge would inevitably have succeeded. Many of the points of challenge were similar to those raised in respect of the second consent, which failed. The independent point which related purely to the first consent was that it was executed under delegated authority, after that authority had been revoked in respect of that application, by two councillors calling for the application to be dealt with by the Council. Neither the legal nor the factual underpinnings of that ground have been made clear in this Court, nor is it a matter which should be treated as self-evidently correct. The appellants should not receive their costs of the proceedings with respect to the first consent. It was simply a matter about which the outcome remained in doubt and in respect of which there should have been no order as to the costs of any party.

225 The next question is the appropriate order to be made with respect to the remainder of the proceedings in the Land and Environment Court. The appellants were unsuccessful in that Court and have been unsuccessful on appeal. The complaints made with respect to the conduct of the respondents do no warrant a departure from the usual order, namely that costs should follow the event.

226 There is a separate issue, however, as to whether the appellants should pay the costs of both respondents in the Land and Environment Court (and in this Court). There is no doubt that both parties were properly joined in the proceedings; however, they had a community of interest on the primary point, which was maintaining the validity of the second consent. As noted above, comments in the joint judgment in Oshlack raise a question as to whether it is appropriate for the Council to be an active opponent of proceedings, where it is the consent authority and may need to reconsider a decision under challenge. A possible result is that, if it plays an inappropriate role, even on the successful side of the record, it may not obtain its costs of the proceedings. However, this was not a usual case. The major part of the challenge mounted by the appellants was to the conduct of two councillors and at least one Council officer. Although a complaint of reasonable apprehension of bias does not necessarily involve any suggestion of improper conduct on the part of a decision-maker, it is clear that the manner in which the claims were formulated in the present case did. Accordingly, this was a case in which it was appropriate for the Council to take an active role in defence of its councillors and officers.

227 The Council further argued that the Hardiman principle could not properly apply because the need to maintain the appearance of impartiality could not arise where the proceedings themselves alleged partiality. A submission in those terms should not be accepted: it could equally be argued that the Council should not, in successfully defending its officers, create an apprehension of partiality in circumstances where it successfully demonstrated that there had been none. It is preferable to consider the appropriate role of Council by reference to the specific circumstances, as noted above.

228 Nevertheless, because the Council had a legitimate role to play, does not mean that it should necessarily receive its costs, or all of them. Despite Mr Allan’s assertions to the contrary in his emails, it was the proponent of the development who had the real interest in maintaining the validity of the consent and not the consent authority.

229 In the circumstances of the case, there has been no demonstration that, to the extent that the respondents had differing interests, those interests were in conflict. Accordingly, although they could not be compelled to employ the same legal representatives, the costs payable by the appellants should not exceed the amount which would have been payable had that happened. What that figure might be is largely speculative, without knowing the extent to which responsibility for the conduct of the proceedings may in a practical sense have been divided between the respondents. The appropriate course is to require that the appellants pay 75% of the costs of the proponent of the development (the second respondent) and 25% of the costs of the Council.

230 The impression obtained from the written and oral submissions on the appeal was that the bulk of the resistance was provided by the Council. That arrangement may have allowed the second respondent to reduce her costs, but it was not necessarily an appropriate division of responsibility in accordance with the respective legal interests of the second respondent and the Council. In principle, the same order should be made with respect to the costs of the appeal as that with respect to the costs of the trial. The appellants should pay 75% of the second respondent’s costs of the appeal and 25% of the costs incurred by the Council. How that calculation will work out is not known, but it is recognised that the actual amounts payable to each party may be closer to 50% of the total costs to be received if, as appears, the Council’s costs are higher than the second respondent’s costs of the appeal.

231 There remains a question as to the costs of the application for leave to appeal in relation to the costs judgment.

232 The appellants have had a significant degree of success in regard to the application for leave to appeal, although not complete success. The exercise of discretionary power having apparently miscarried, on a matter of significance, the case was an appropriate one for a grant of leave to appeal, in circumstances where the Court was otherwise apprised of the substance of the issues litigated below. Further, the appellants have been successful on the costs appeal to the extent of limiting their liability to costs incurred after 28 October 2005 and in limiting the overall costs payable to a proportion only of the costs of the respective respondents. The appellants should obtain an order for 75% of their costs of the leave proceedings and consequent appeal, payable as to 50% by the Council and 25% by the second respondent, being a reflection of the apparent division of responsibility between the respondents in resisting the leave application and the underlying appeal.

234 CAMPBELL JA: Subject to three qualifications, I agree with the reasons of Basten JA.

235 The first is that I do not join in the implicit criticism of the decision in Cranky Rock Road (paras [189]-[200] above).

236 The second is that I agree with Spigelman CJ that the trial judge stated the wrong test for apprehended bias, though came to the conclusion that comes from applying the correct test.

237 The third is that I would prefer to decide the case on the basis of assuming, rather than deciding, that if the two councillors in question met the legal test for reasonable apprehension of bias, the decision of the Council would thereby be vitiated. My reasons for making the third of these qualifications are as follows.

238 There have been numerous decisions holding, concerning a variety of different types of collective bodies, that disqualification of one member vitiates a decision of the body. For instance, Forbes, Justice in Tribunals, 2nd ed (2006) The Federation Press at [15.2] says:

239 To the cases mentioned by Forbes could be added Craddock v Davidson [1929] St R Qd 328 (president of a union participated in committee decision that rejected the nomination of the plaintiff for the position of president in an election, with the result that the election was declared void), Thomas v Hayward (1907) 9 WALR 212 (member of the committee of Turf club had a professional relationship with a person who came before the committee, sufficient to create a reasonable apprehension of bias – committee decision void), R v Mullins; ex parte Stenhouse (1971) Qd R 66 (decision of the Fire Brigade Appeal Board relating to the suspension and termination of the employment of a particular worker void when one member with apparent bias had sat on the Board), Manion v Rankin (1914) 4 Tas LR 78 (decision by committee of trotting club on appeal from the stewards invalid when the committee included some of the stewards, two of whom were present and took part in the deliberations of the committee, and conveyed information and evidence to the members of the committee in the absence of the person affected by the decision), R v Optical Board of Registration; ex parte Qurban [1933] SASR 1 (members of licensing board who had been active in gathering evidence against the accused not entitled to sit – prohibition granted), and Macsween v Fraser (1956) 1 FLR 10 at 14 (disciplinary decision by an internal tribunal of a union vitiated if a person who is not qualified to be a member of the tribunal sits as a member of it).

240 Outside the field of tribunals, in Lane v Norman (1891) 66 LTS 83; (1891) 61 LJ Ch 149, North J held that where, at a meeting of the trustees of charity, a person who was not entitled to be present participated in the discussion, that was sufficient to avoid the decision. North J said, at 86: “He took part in the discussion, and of course it is impossible to say what effect his views may have had upon the minds of the other persons who were present.”

241 It could well be argued that these decisions have a bearing on the present case, even if some of them did not directly concern a person who was the subject of a reasonable apprehension of bias, because being the subject of a reasonable apprehension of bias was merely one variety of the ways in which a person might be disentitled from participating in a corporate decision.

242 However, the case-law does not say unanimously that disqualification of one member of a collective body vitiates a decision of that body. Concerning the internal affairs of unions, it has been decided that participation by an unqualified person in a decision does not necessarily vitiate the decision. In Lynch v Hodges (1963) 4 FLR 348 in the Commonwealth Industrial Court Spicer CJ and Joske J at 350 regarded Macsween as applying in relation to proceedings before a domestic tribunal for suspension of a member in which the principles of natural justice must be observed, but reserved the more general consideration of whether active participation of a stranger at a meeting vitiates all proceedings of such a meeting. Dunphy J at 351 regarded Macsween as authority for an even narrower proposition –

243 Steuart v Oliver (No 2) (1971) 18 FLR 83 concerned whether a union election that had been conducted in accordance with a special rule was invalid, when the rule in question had been made in 1968 by the Executive Council of the union, with the participation of people who were not entitled to be members of that Executive Council. The Commonwealth Industrial Court held that the rule was valid, and consequently the election was valid.

244 That decision needs to be understood against a historical background that is not mentioned in it, but of which all litigants and the Court itself would have been acutely aware. Moore v Doyle (1969) 15 FLR 59 held that a federal union and its State “branches” were different corporate entities. That decision had the consequence that the affairs of very many organs of Australian unions had been conducted for decades by procedures in which people had participated who were not entitled to participate. Holding that mere participation by an unauthorised person in a decision, (of whatever nature) made by a collective or collegiate body (of whatever nature) invalidated that decision would have caused even greater disruption in the administration of the affairs of Australian unions than the decision in Moore v Doyle itself was sufficient to cause. The times called for courts dealing with the fallout from Moore v Doyle to take care that their decisions on matters of the validity of internal union procedures were expressed in terms no wider than was called for by the particular case. It was in that context that Joske J (with whom Spicer CJ and Smithers J agreed) said, at 84-85:

245 His Honour recognized that the decisions of the Court of Conciliation and Arbitration in Short v Mackay (1951) 73 CAR 23 and Re Gould; Re Australian Railways Union (1967) 87 CAR 939 provided some support for the proposition that mere participation in a decision of an unqualified person was sufficient to vitiate that decision. He concluded, at 87:

248 In Ethell v Whalan [1971] 1 NSWLR 416 Hope J held that the expulsion of a member from the union was invalid in circumstances where people who were not members of the Executive took part in the decision to expel him. His Honour says, at 423:

249 In light of the actual reasons for decision in Steuart v Oliver (No 2), that Hope J said he was applying, his Honour’s remark should be read bearing in mind that “the charge” in question was one of knowingly disobeying a decision of the Conference of the Federation, concerning which expulsion from the union was sought. The remark could not safely be taken as applying to all decisions of a collective body on any topic.

250 (I note that the decision in Ethell was disapproved in part, concerning the ability of a denial of natural justice at first instance to be cured on appeal, in the Privy Council decision in Calvin v Carr [1979] UKPC 1; [1980] AC 574; [1979] 1 NSWLR 1 but Calvin did not mention the aspect of Ethell that is of present relevance.)

251 When the present standing of Steuart v Oliver (No 2) has not been the subject of argument in this case, I would prefer to neither adopt, nor reject, a proposition that participation of a disqualified person in the decision of a collective body vitiates that decision.

252 There is another reason for taking that same stance. It arises from the place occupied in the structure of judicial concepts by the rule that a decision by a decision-maker concerning whom there is a reasonable apprehension of bias is void. That rule has traditionally been seen as one manifestation of natural justice, summed up by the slogan that no-one should be judge in his or her own cause; M Aronson, et al, Judicial Review of Administrative Action 3rd ed (2004) Lawbook Co at 370-371; JRS Forbes, Justice in Tribunals, 2nd ed (2006) The Federation Press at [15.1]. The rule continues to be seen as part of natural justice, eg Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72]. Many of the cases referred to at paras [238] and [239] above that have held that participation in a decision of a collective body by someone who for one reason or another was not eligible to participate vitiates the decision have relied in their reasoning on the body in question having a “duty to act judicially”. However, since Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 there has been a retreat from using the notion of a duty to act judicially as the basis of duty to act in accordance with natural justice.

253 A duty to act in accordance with natural justice is now seen as equated with a duty to accord procedural fairness. Two different views have been put forward concerning the present basis in Australia of a duty to accord procedural fairness. The view of Mason J is that there is “a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention”: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584. By contrast Brennan J puts the basis of a duty to accord procedural fairness in implied legislative intent (Kioa at 609–611), and does not accord a role to legitimate expectation (Kioa at 611, 617-618). Neither view has yet achieved clear dominance. (The subsequent history is traced in M Aronson et al, op cit, at 384-410). When the basis upon which broad statements in cases such as those cited in paras [238] and [239] above were made has now fallen into conceptual disfavour, and a new basis is still not authoritatively settled, the statements themselves need to be approached with caution if one is contemplating using them outside the specific factual context in which they were made.

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AMENDMENTS:

23/10/2008 - Typographical error - deleted "be", 5th word, 2nd last sentence. - Paragraph(s) 127

05/11/2008 - Change the word "second" to read "third" in last sentence of paragraph. - Paragraph(s) 237

LAST UPDATED:
5 November 2008

Supreme Court of New South Wales - Court of Appeal

McGOVERN v KU-RING-GAI COUNCIL [2008] NSWCA 209 (1 September 2008)