Development Assessment Commission v Evangelista [2005] SAERDC 79 (22 August 2005)

Last Updated: 22 August 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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DEVELOPMENT ASSESSMENT COMMISSION v EVANGELISTA

Judgment of Her Honour Judge Trenorden

22 August 2005

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE SUSPICION OF BIAS

Application for disqualification of judge - reasonable apprehension of bias.
Development Act 1993; Environment Protection Act 1993, referred to.
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Southern Equities Corporation Ltd v Bond [2000] SASC 450; Johnson v Johnson [2000] HCA 48; (2000) 74 ALJR 1380; Evangelista v Development Assessment Commission [2004] SAERDC 30, considered.

DEVELOPMENT ASSESSMENT COMMISSION v EVANGELISTA
[2005] SAERDC 79

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

The alleged contemnor in these proceedings ("the applicant") has submitted that I should disqualify myself from the hearing of the charge of contempt of this Court, on the ground of apprehended bias. In the alternative, he submits that I should take a prudent approach (see Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337) and allocate another judge to hear the trial of the charge.

The charge of contempt relates to an order of this Court made by Her Honour Judge Cole on 14 April 2003 in DAC v Domenico Evangelista ERD-03-125 (the civil enforcement proceedings). As the applicant’s argument was based in part on a temporal link between the period the subject of the charge of contempt and the hearing by me of another matter involving him, it is appropriate to set out a chronology of relevant events. That chronology is set out below:

20/01/03 Development application by applicant to fill land.

28/03/03 DAC advised applicant that application was for a non-complying kind of development.
14/04/03 Order made in the civil enforcement proceedings requiring applicant to "refrain from dumping fill or waste material, or causing, suffering or permitting the dumping of fill or waste material" on the land.

31/10/03 Applicant submitted an amended development application to DAC.

21/11/03 DAC decided to classify amended application as being for a non-complying kind of development.
27/11/03 Applicant appealed DAC decision to classify application as being for a non–complying development ERD-03-430.

11/12/03 DAC determined amended application on its merits. Consent refused.
14/01/04 – Period during which it is alleged applicant was in contempt of order made on
18/01/04 14/04/03.

29/03/04 Judge Trenorden hears appeal against DAC decision to classify as non-complying: ERD-03-430.
13/04/04 ERDC judgment dismissing applicant’s appeal and confirming DAC decision ERD-03-430.
27/04/04 Applicant appealed against judgment in ERD-03-430.
15/10/04 Judgment of Full Court of the Supreme Court dismissing appeal against judgment in ERD-03-430.

18/02/05 Summons for contempt issued.

2	The subject land was and is the same in each case. There was some suggestion that the contempt proceedings refer to a different part of the subject land from that which was the subject of the development application and therefore, the judgments in relation to action ERD-03-430. Even if this is the case, it is of no consequence.
3	It is said by the applicant that there are a number of features common to the contempt proceedings and the proceedings being ERD-03-430, which I heard and in respect of which I delivered a judgment in April 2004 ([2000] SAERD 30), subsequently upheld by the Full Court. It is said by the applicant that the common features are:
1.	the parties;

2.	the land; and

3.	"broadly that the same type of activities are alleged from one party against the other".

4	It is correct to say that the parties and the land are identical in both proceedings. However, the question before the Court in each case was and is different. In ERD-03-430, the question was whether the proposed development the subject of an application to the Development Assessment Commission, was a non–complying kind of development. In order to answer this question, I had to determine whether the proposed development, namely "the disposition of fill in gullies on the subject land to enable the appellant to form access tracks and benches on the subject land", was an application for a "land-fill that constitutes solid waste disposal required to be licensed as a waste depot under the Environment Protection Act 1993". This is to be contrasted with the issue now before the Court in the contempt proceedings, that is, whether the applicant; "between 14/01/04 and 18/01/04, caused, suffered or permitted to be dumped, a quantity of fill or waste material on the land at 537 Kensington Rd, Wattle Park in the State of South Australia ... contrary to the order of Her Honour Judge Cole on Tuesday 14th day of April 2003 that (he) refrain from dumping fill or waste material, or causing, suffering or permitting the dumping of fill or waste material on the said land until further order or development approval is granted".
5	In the appeal hearing ERD-03-430, without hearing any evidence from the applicant or indeed any oral evidence, and on the basis of the application and supporting documents, I determined that the development proposed was for a land-fill of the kind above described, and therefore, was a development of a kind expressed to be non-complying in the relevant zone according to the relevant development plan.
6	It is correct to say that at least some of what is alleged in the affidavit material which supported the request for a summons to be issued charging the applicant with contempt, appears on its face, to constitute the same type of acts and activities for which development approval was sought and to which my judgment in action ERD-03-430 relates. However, the question before the Court now, in the contempt proceedings, is as to whether the applicant is guilty of failing to comply with the order of the Court made on 14 April 2004 or, to be more precise, whether he dumped fill or waste material, or caused, suffered or permitted same to be dumped on the subject land, during the period as charged.
7	Mr Crocker for the applicant submits that there is a temporal link between the period during which it is alleged that activities in contempt of the Court’s order occurred (January 2004) and the hearing presided over by me and the subsequent judgment in relation to the application (March and April 2004), which would give rise to a reasonable apprehension of bias if I were to hear the contempt proceedings, and therefore I should disqualify myself from hearing the trial for the charge of contempt. He submits that in March 2004 I had before me, in the development application made to the DAC, the applicant’s intention in respect of the subject land. Mr Crocker further submits that in the March 2004 appeal, I "had a factual basis that included a finding as to what this man intended to do when he made the application in 2003 and that intention presumably is still germane as ... (I) hear the appeal in March 2004."
8	The inference is that I was aware of the applicant’s intention from the time of his original application in January 2003 and that a reasonable person might reasonably apprehend that, being aware in March 2004 of the applicant’s intention from January 2003 should he receive development authorisation, I would not bring an impartial mind to a consideration of whether the applicant in effect carried out that intention in January 2004.
9	An application for consent to undertake development under the Development Act 1993, such as I had to consider in March 2004, can only be an application for consent to carry out a development proposed in accordance with a description in the application documents. The application documents revealed how it is intended that the proposed development be carried out should consent be granted and a development authorisation issued.
10	The test in relation to apprehended bias was identified in Southern Equities Corporation Ltd v Bond [2000] SASC 450 in the judgment of Olsson J at paragraphs 36-41:

The fundamental principle relating to assertions of apprehended bias is now well settled. It was articulated by the High Court in Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 and reaffirmed by that Court in its recent judgment in Johnson v Johnson [2000] HCA 48; (2000) 74 ALJR 1380 and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 75 ALJR 277.
The classic statement of such principle is to the following effect:

"... the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." (See Johnson at 1382)

As was said by Meagher JA in Spedley (at 448), this is a "Spartan doctrine", which has been rendered increasingly so, both by constant judicial narrowing of the scope of "necessity", as an exception to the rule, and by the developing law on the attributes of the hypothetical observer.
Those attributes were summarised by Kirby J in Johnson (at 1391) in these terms:

"The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious."

Kirby J went on to reaffirm what he originally said in two earlier cases commencing with S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358. He made the point 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 themselves. As Kirby J expressed the concept in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272:

"... when in the present case the critical decision must be made, it seems to me that it is to be made by reference to an impressionistic, and to some extent superficial, opinion based upon a consideration of the broad features of the allegation made. It is not made upon a detailed exploration of and the lengthy rumination about the legal or other merits of it."

With respect, this is, in my opinion, a most important and pertinent aspect for consideration in the instant case, and the principles enunciated in the authorities need to be applied with that well in mind.

and at paragraph 45:

At the end of the day, what is necessarily in issue in a particular case is the reasonable perception of the fair-minded lay observer, having the attributes adverted to by Kirby J.

11

The majority of the High Court in Ebner (above), in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ, commenced a discussion of the principle to be applied in determining whether a judge is to be disqualified from hearing a case, with statements concerning the duty of a judge at paragraphs 19-20, and 22, as follows:

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellant court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.

12	Above all, the judge in a small court, such as this, has to consider whether he or she is disqualified having regard to the law. In considering whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unpersuaded mind to the resolution of the question before him or her, the judge is to take into account that the lay observer, being not wholly uninformed and uninstructed, would have the knowledge and understanding described by Kirby J in Johnson (above) and in addition, would be aware that there are limited judicial resources in this Court. That being the case, the judges are indubitably conscious of the need to bring an impartial and unprejudiced, untainted mind to the consideration of each case.
13	I have considered how the hypothetical lay observer would view matters, bearing in mind what has been said about the lay observer. I am not persuaded that the fair minded lay observer might think that there was a connection between the applicant’s proposal for development, manifest in an application in January 2003, and the alleged events of January 2004 such that there would reasonably be an apprehension of bias should I hear the contempt proceedings. I am not persuaded that the fair minded lay observer might reasonably think that because I decided that the proposal, for which the applicant sought development authorisation, constituted a waste depot and a non-complying kind of development, I might not bring an impartial and unprejudiced mind to the hearing of charges of contempt alleging that the applicant did or did cause to be done, the acts alleged even if they amount to that for which he had sought development authorisation.
14	There is one other situation to be addressed. Mr Crocker put to me that there is an additional factor to take into account, namely that in the course of a directions hearing held on 24 November 2003, preliminary to the hearing in ERD-03-125 in 2004, certain questions were asked and responses made, which from the perspective of the hypothetical lay observer, might give rise to a reasonable apprehension of bias on my part.

I reject that submission. The exchange took place at a directions hearing in the context of a proposal to further adjourn the civil enforcement proceedings, pending a decision by the development authority in relation to an amended application by the applicant. They were part of an informal exchange to quickly ascertain whether common sense dictated that the listing for hearing of the civil enforcement proceedings should be deferred, pending a possible authorisation for the acts the subject of those proceedings, having regard to the provisions of s 85(14) of the Development Act 1993.

15	When the context is understood by the hypothetical lay observer, I do not think that the information conveyed to me there, might result in a reasonable apprehension that I would not bring an impartial and unprejudiced mind to the determination of the contempt proceedings.
16	In conclusion, I do not consider it necessary to disqualify myself from hearing and determining the contempt proceedings. The application is dismissed.