Murlan Consulting Pty Limited v Ku-ring-gai Council and Others (No 4) [2010] NSWLEC 95

Murlan Consulting Pty Limited v Ku-ring-gai Council and Others (No 4) [2010] NSWLEC 95

A fair-minded observer, apprised of the ongoing professional and financial association between Acting Commissioner Dr Taylor and Ku-ring-gai Council at the time of the Class 1 proceedings—including collaborative research, committee activities, co-authored papers, and a pending research grant—would reasonably apprehend that Dr Taylor might not bring an impartial mind to the resolution of those proceedings. Therefore, the orders made by the Commissioner should be set aside for apprehended bias.

Jurisdiction
Australia
Judgment Date
24 June 2010
Procedural Posture
Notice of Motion in Class 1 Appeal (remitted) / Remittal After Appeal Court Set Aside Prior Judgment
Outcome
Orders set aside for reasonable apprehension of bias; costs apportioned
Legal Topics
['apprehended Bias' 'procedural Fairness' 'disqualification of Decision Makers' 'costs Orders' 'role of Attorney General as Contradictor']
['administrative Law' 'planning and Environment Law' 'judicial Procedure'] ['apprehended Bias' 'procedural Fairness' 'disqualification of Decision Makers' 'costs Orders' 'role of Attorney General as Contradictor']

Case Brief

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Procedural Posture

Notice of Motion in Class 1 Appeal (remitted) / Remittal After Appeal Court Set Aside Prior Judgment

Legal Issues

  1. 1 ["Whether the association and indirect pecuniary interest between Acting Commissioner Dr Taylor and Ku-ring-gai Council gave rise to a reasonable apprehension of bias requiring the Court's decision to be set aside." 'Appropriate knowledge to be attributed to the hypothetical fair-minded observer in assessing apprehended bias.' 'Whether costs should be ordered and against whom in both the original hearing and remitted proceedings.']

Ratio Decidendi

A fair-minded observer, apprised of the ongoing professional and financial association between Acting Commissioner Dr Taylor and Ku-ring-gai Council at the time of the Class 1 proceedings—including collaborative research, committee activities, co-authored papers, and a pending research grant—would reasonably apprehend that Dr Taylor might not bring an impartial mind to the resolution of those proceedings. Therefore, the orders made by the Commissioner should be set aside for apprehended bias.

Court Disposition

Orders set aside for reasonable apprehension of bias; costs apportioned

Orders

  • ["The Court's orders of 26 June 2007 in Murlan Consulting Pty Limited v Ku-ring-gai Council [2007] NSWLEC 374 are set aside." "The Council is to pay half of Murlan's costs of the first hearing apart from the costs order made on 25 February 2009 which remains." 'All parties are to pay their own costs of the remitted...