The decision-making process used by a Council's delegate in
exercising power under the Domestic Animals Act 1994 (VIC)
(the Act) to order that a dog be destroyed was
found to be contrary to natural justice in the High Court case of
Isbester v Knox City Council  HCA 20.
The Isbester case decision
The High Court in the Isbester case unanimously held that a fair
minded observer might reasonably apprehend that a delegate who took
part in the decision-making might not have brought an impartial
mind to the decision, given the delegate's two roles arising
out of the dog attack.
The two roles of the delegate
The appellant's dog was involved in an attack on another
dog, and injured the finger of a person who tried to intervene.
The delegate, in her role as Coordinator of Local Laws of the
local government, determined that charges should be laid with
respect to the attack and instructed Council's solicitors to
The delegate also took an active role in the decision-making
process of a panel convened by the Council to determine whether to
seek the destruction of the dog under the Act.
Another member of the panel was responsible for making the
decision to order the destruction of the dog under the Act.
The appellants appealed to the Supreme Court, and then the High
Reasonably apprehended bias
The appellant did not argue prejudgment. The question before the
court was whether an involvement in a matter antecedent to the
decision in question was incompatible with participation in that
later decision, and whether it could be reasonably apprehended that
a person in the delegate's position would have an interest in
the decision that could affect her decision-making.
The Council unsuccessfully argued that the delegate's
interest, if any, as a prosecutor ended when the proceedings in the
Magistrates Court came to an end, and that even if she had an
interest she did no more than diligently carry out her
The High Court found that the delegate's role in the
Magistrates Court proceeding gave her an interest that was
incompatible with her involvement in the decision making process of
the panel. That dual involvement led to a finding of apprehended
A personal interest, in the case of a prosecutor or other moving
party, refers to a view which they might have of the matter. The
interest of a prosecutor may be in the vindication of their opinion
that an offence has occurred, or that a particular penalty should
be imposed, or in obtaining an outcome consistent with the
prosecutor's view of guilt or punishment.
The High Court accepted that it might reasonably be thought that
a person's involvement in the capacity of prosecutor will not
enable them to bring the requisite impartiality to
Even though another member of the panel was responsible for
making the decision to order the destruction of the dog, there was
still an apprehension that the involvement of the delegate in the
Magistrates Court's prosecution might affect not only her own
decision making, but also that of the other members of the
The High Court observed that a finding of apprehended bias
implied nothing about how the delegate in fact approached the
matter, or that she acted otherwise than diligently. Natural
justice required, however, that the delegate not participate in the
decision-making process of the panel, and that the decision to
destroy the dog must therefore be quashed.
Lessons for Local Government
A finding of apprehended bias does not require that a councillor
or local government officer act in a manner otherwise than fairly
It only requires that a fair minded observer might reasonably
apprehend that the person who took part in the decision-making
might not have brought an impartial mind to the decision.
A local government should ensure that it has process in place to
prevent someone in the position of the delegate from acting both as
a prosecutor and also as a decision-maker on the same, or related,
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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