Australia: The High Court bites local government review process

HIGH COURT OVERTURNS DECISION TO DESTROY DOG – ISBESTER V KNOX CITY COUNCIL [2015] HCA 20

The High Court has unanimously allowed an appeal from the Victorian Court of Appeal overturning a local government administrative panel process (similar in most respects to a decision taken by any local government officer under power of an act or instrument) ordering the destruction of a dangerous dog.

THE NATURE OF THE DECISION

The appellant had previously entered a plea of guilty in relation to owning a dog that had caused a serious injury, in this case, a bite to a finger. The Council convened a panel to decide whether to order the dog's destruction although only one member of the panel, who was the official delegate of the local government, formally made the relevant decision.

One of the panel members, Ms Hughes, had been involved in the investigation of the court proceedings and the formulation of the prosecution case, in fact, she was the complainant who instituted the prosecution proceedings but was not the final decision maker. The Appellant argued that the participation in the panel process by the original complainant constituted apprehended bias.

WHAT FOUNDED THE ALLEGATION OF BIAS?

The principle of apprehended bias is stated as "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".1

The key points considered in the case were:

  • Pleas of guilty were entered in the Magistrates Court enlivening the Council's jurisdiction to decide whether the dog should be destroyed.
  • The Council, through separate means (the panel process), made a decision ordering the destruction of the dog.
  • The original complainant in the prosecution proceedings did not make the impugned decision but, by participation as a panel member, played a significant role in the decision making process which might have affected the decision of other panel members, particularly because of her knowledge of the matter arising from her being the complainant.
  • Whether the legal distinction between the Magistrates Court proceedings and the subsequent destruction order decision were sufficient to exclude the potential for apprehended bias on the part of the original complainant.
  • Whether the employee's role in the Magistrates' Court proceedings gave her an interest that was incompatible with her involvement in the decision-making process of the panel.
  • There was no suggestion that the original complainant acted otherwise than diligently, and in accordance with her duties in the course of the panel process.

WHAT DOES THIS MEAN FOR INTERNAL REVIEW PROCESSES?

The Court accepted that Ms Hughes participated in every aspect of the Panel decision and that, given her experience and knowledge of the relevant legislation, her views would carry considerable weight.

The Court held that natural justice required that the original complainant to the Magistrates Court proceedings not participate in the destruction order decision and the decision must be quashed.

In many ways, the decision appears an obvious one.

Notwithstanding the legal distinction between the Magistrates Court proceedings and the panel review process, it was not in issue that the original complainant played a significant role in the decision making process.

The principle governing cases of possible bias require two steps to be taken in its application:

  • The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an "interest" in litigation, the nature of that interest must be spelled out.
  • The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. Essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.

A desire to take steps to ensure consistency with one's own decision (whether conscious or not) can emanate from maintenance of professional reputation as well as avoiding scrutiny from superior officers. Here, the nexus linking Ms Hughes' "interest" in the outcome of the decision whether to order the destruction of the dog was consistency with the original decision to pursue the prosecution of the dog's owner. The High Court held when considering whether it could be reasonably apprehended that Ms Hughes had a continuing interest in the matter, the answer was "clearly" yes.

This case is a timely reminder for local governments that the perception of bias in decision making must be considered and managed appropriately. This includes ensuring, from a management perspective, that an officer is not involved in related matters such as here, where a panel was formed to determine the fate of a dog following a decision from the Magistrates' Court about the behaviour and nature of that dog.

In the context of any review decisions it is also opportune to note, whilst not the subject of this case, that in a practical sense, and by implication, the perception of bias may also apply to communications between the original decision maker and the person reviewing that decision. Accordingly, employees should be wary about trying to subtly influence the reviewer's evaluation of files and decisions made in respect of them. Such communications include email chains and small throw away comments which may be intended to be harmless but could be seen as an effort to influence the opinion of a decision maker to protect or further personal interests.

It is often noted that casual email conversations can be interpreted in a number of different ways, particularly when in the context of legal proceedings. The content of all communications, but particularly those which form a part of a written record, should be carefully considered. Words to the effect "I have another boring one for you" or "you'll enjoy this one..." in emails should be avoided.

Footnote

1Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 [6]; [2000] HCA 63.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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