McGovern & Anor v Ku-Ring-Gai Council & Anor [2009] HCATrans 48 (13 March 2009)

Last Updated: 16 March 2009

[2009] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S453 of 2008

B e t w e e n -

DAVID McGOVERN AND ROSLYN McGOVERN

Applicants

and

KU-RING-GAI COUNCIL

First Respondent

MARILENA ALLAN

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 2009, AT 10.05 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: If the Court pleases, I appear for the applicants with my learned friend, MR J.S. EMMETT. (instructed by Bradfield &Scott)

MR J.E. GRIFFITHS, SC: May it please the Court, I appear with my learned friend, MS M.N. ALLARS for the first respondent, the Council. (instructed by Deacons)

MR P.J. MCEWEN, SC: May it please your Honours, I appear for the second respondent, Mrs Allan, with my learned junior, MR M.D. SEYMOUR. (instructed by Harris Freidman Hyde Page)

GUMMOW J: Yes, Mr Bennett.

MR BENNETT: If the Court pleases, the error which we submit gives rise to a clear special leave point in this case appears in paragraph 205 of the judgment of Justice Basten - with which the Chief Justice and Justice Campbell agreed - at page 167 of the application book. It arose this way. Paragraph 204 shows that we complain there were breaches of procedural fairness in councillors failing to disclose, in particular, certain communications to us as objectors. His Honour says:

These grounds were misconceived . . . The substantial difficulty with the appellants’ argument is that it treats them as a party –

We were objectors –

to the Council’s decision. That was a mischaracterisation of their role . . . 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 -

The material which was not produced to us is set out under tab 1 of the white folder. I will not take your Honours through it on the application, but your Honours will see that it consists of a number of emails to councillors by the applicant for development approval, which attacks the objectors, describes them as “serial” objectors, makes allegations about how vexatious are in objections and make specific allegations about previous occasions.

We had no opportunity to see that or answer it, to say how untrue it all was, on my instructions. In my respectful submission, that is precisely the sort of material that needs to be disclosed to an objector, and the suggestion that “They are not a party, so they have no rights” is, in my respectful submission, simply wrong. Might I remind your Honours of the decision of this Court in J v Lieschke. It is at tab 4 of the volume. It is 162 CLR - - -

GUMMOW J: We need to know, Mr Bennett: (1) what are the questions of principle said to arise and (2) do they really arise having regard to the actual outcome in the Court of Appeal?

MR BENNETT: Yes, your Honour, we say that first of all, the decision is vitiated by the failure to give us an opportunity to deal - - -

GUMMOW J: No - the New South Wales Court of Appeal. We want to know what questions of principle are posed by their judgments, and secondly whether they truly do arise have regard to the actual outcome. There were some differences of opinion as to matters of principle, but they do not seem to have dictated different outcomes in the actual litigation.

MR BENNETT: No, your Honour. On this aspect, Justice Basten expressed a view. Justice Spigelman expressed the same view, in effect, at pages 102 and 104, and Justice Campbell agreed with Justice Basten, except to the extent that he disagreed on other aspects. So on what we call the first and major point, there were no differences in the Court of Appeal. We failed in the case. Had we succeeded on that ground we would have succeeded. It is not relevant whether in fact what we would have put forward would have changed any views. That appears clearly from Kioa v West and VEAL in this Court which make it clear that that is not the test. We do not need to show an actual effect.

The short point is that one does not say “Are you a party, if so you get procedural fairness, if not you do not.” The question is what is the appropriate level of procedural fairness bearing in mind your position, and we say while it may well be that an objector is not entitled to every detail of every document without any statutory entitlement, where someone puts before the Council argumentative material saying “Do not listen to these objectors, they are vexatious and serial objectors who have told lies in the past” and so on, untruthfully we say, for that not to be disclosed to us is, we submit, a classic failure of procedural fairness of the type – it is the very sort of material that does have to come to us if there is to be a fair decision. That is the first and primary special leave point.

The error appears in the paragraph I have said, where his Honour says “Because you are not a party, you have no relevant rights.” As I say, I remind your Honours of J v Lieschke where at page 459 – this was a case where under the rather outrageous old procedure where there was suspected child abuse, the children were charged with being neglected children, and the parents were told they were not parties, they had no right to appear to deny the allegations, and the High Court said their rights did not depend on whether they were parties or not. At the bottom of page 459 Justice Brennan said:

The application of the principles of natural justice does not depend on whether parents and guardians are to be described as parties. Those principles apply to the exercise of administrative powers where there are no parties, and they apply with no less force to the exercise of judicial powers where there are no parties -

et cetera. So that is the first point. The second issue is the issue concerning apprehended bias, and what we say here is the court did no apply the proper test. The trial judge talked about “would” rather than the two “mights” which appear in the – and they said in effect the only test was whether the alderman concerned actually had a closed mind, that being taken from a Canadian case dealing with actual bias. I could take your Honours to the passages if you wish, but although it is a case where the Court of Appeal describes the two aldermen in question as assuming an advocacy role, vis-à-vis the other aldermen, the “two mights” test was not the appropriate test to apply. The sole question was could they have changed their minds?

The other aspects of the apprehended bias point is this, that there is a lot of discussion in the case about the Council being a democratically elected body having to make policy decisions and so on, and that therefore the rules of apprehended bias have to be applied differently. They cited an English case where aldermen voted on party lines and that was held, obviously, to be all right.

What we say about that is this. That may well be true in a case where the apprehended bias is that the alderman believes there should be no commercial development in a certain ward, or takes some general political stance in relation to development, but it does not apply where one has, as here, what is basically a dispute between two neighbours about a carport and a spa, and these sorts of issues are far more local and special and not general political issues.

We would submit that in that sort of case, the cases talking about apprehension of political bias simply have no application. There are some important issues there as to the extent to which the apprehended bias case is modified in relation to local councils. There was an issue about whether the two aldermen is enough; whether you have to prove that it would have changed the majority or not, but we succeeded on that issue with all three judges of the Court of Appeal. If it arises by notice of contention it is an issue of some interest which would not take very long to argue.

There is a third and less significant issue in the case concerning the construction of some regulations in a schedule, as to whether it is mandatory that there be a plan accompanying the development application. The Court of Appeal seems to have taken the view that looking at the regulations in question, which appear at pages 159 and 160 of the book - your Honours need not go to them - they use the word “must” and the court starts by correctly taking the view that it is prima facie mandatory and that failure to comply would invalidate the application. Then they say “But we really need to come to the opposite conclusion because of a case called Cranky Rock Road” which was a Court of Appeal decision.

Cranky Rock Road concerned a failure to have a statement of environmental effects, which is one of the things required. We simply say there is a difference between the arguments as to whether a statement of environmental effect - something that may influence the council one way or the other should be there, and a site plan of the land in the sketch of the development showing exactly what is being done and what council has to deal with. We submit it is in a very different category. To the argument that it is in the same provision, so one cannot be – if I can use the old terminology – directory and one mandatory - we say well clearly they are because if one looks at page 159, one of the requirements is the development - - -

GUMMOW J: Now, Mr Bennett, the sound system is quite sophisticated. We are not in the middle of a paddock.

MR BENNETT: No. Well, your Honour, I submit it is an important issue for development applications - - -

GUMMOW J: If you just moderate your voice, we will all receive the wisdom more readily.

MR BENNETT: I am sorry, your Honour, I had the - - -

GUMMOW J: What do you say about the submission at page 216, line 50:

The question of principle only arises if the Court’s unanimous factual finding that there was no prejudgment by either Councillor Ryan or Councillor Ebbeck is reversed.

MR BENNETT: On that question, your Honour, the issue was the test applied in reaching that decision. We say it is the “two mights” test and the trial judge applied a “would” test. We submit that that is quite different and the basis of that was, as I say, a Canadian case about actual bias, and so the question goes to the making of that finding and whether that finding should have been made, and as to the test applied in making it. It is not correct to say it only arises if that finding is set aside.

BELL J: For my part I understood that, although there were distinctions between the judgment of the Chief Justice and Justice Basten, each of the members of the court approached the matter upon the basis that the test was the “two might” test as you put it, and applying that test, each member of the court was of the view that your client could not succeed.

MR BENNETT: Your Honour, in my respectful submission, that is not really what occurred. If one looks at the paragraphs at page 130 - - -

HEYDON J: There it seems to be accepted that “two mights” is the test. Paragraph 104 on page 130 records a submission for the Council which states the “two might” test. It says that each element should be firmly established. Does that not indicate that that was the test applied?

MR BENNETT: Chief Justice Spigelman in paragraph 15 at page 102 said:

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 . . . where, in the terminology of them majority judgment: the decision-maker must be “capable of being persuaded” –

It is put sort of as an absolute.

HEYDON J: Justice Campbell agreed with the reasons of Justice Basten so that is a majority in favour of the “two mights” test, even if your last submission is correct.

MR BENNETT: Your Honour, in paragraph 108 Justice Basten states the complaint about imposing too high a test, and he goes on to say at the top of page 133:

Secondly, there is a risk of overemphasising the importance of the formula -

Then at paragraph 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.

His Honour rather seems to be applying a different test in accepting the test applied by her Honour, which is, as I say, a higher test than we had to reach.

HEYDON J: Is not there force in the first sentence in paragraph 111? This is rather like medieval school men debating these verbal differences in tests.

MR BENNETT: It is more than a verbal difference test, your Honour. One states a test, one applies the test to the facts, and if the test is wrong - the fact that the two tests differ verbally, they differ very substantially, we would submit; the “two mights” test, on the one hand, and the “would” test, on the other. We submit that is not just a verbal quibble, it is an important distinction and, as I say, Justice Spigelman simply, in paragraph 15, seems to apply the wrong test:

the decision-maker must be “capable of being persuaded” -

Those are the issues, if your Honours please.

GUMMOW J: Thank you. We do not need to call on counsel for the other parties.

Having regard to the factual findings upon which the New South Wales Court of Appeal reached its conclusions, we are not satisfied that an appeal to this Court would present for resolution the issues of principle concerning the principles of procedural fairness which are said to arise. Nor do the interests of justice call for a grant of special leave. Special leave is refused with costs.

AT 10.24 AM THE MATTER WAS CONCLUDED