This appeal considered whether a judgment of the Land Court should be set aside on the basis of apprehended bias. The apprehended bias had initially arisen at a directions hearing. In the Supreme Court at first instance it was held that the right to complain about that conduct had been waived, and that the subsequent reasons for judgment had not re-enlivened any apprehension of bias. The Court of Appeal allowed the appeal in relation to this issue, concluding that the reasons for judgment did give rise to a fresh apprehension of bias – in particular, due to statements made about the conduct of the applicant (including without evidence, or where it was unnecessary to do so). The Court made orders remitting the matter to the Land Court for rehearing.
Sofronoff P and Philippides JA and Burns J
10 September 2019
New Acland Coal Pty Ltd (“Acland”) operates a coal mine near Oakey. . It sought to expand its mining operations, and applied for new mining leases and to amend its Environmental Authority (“EA”) for this purpose. –, . Oakey Coal Action Alliance Inc, among others, objected to the grant of these leases and EA. . Under the relevant legislation, the matter was referred to the Land Court of Queensland. –.
Ultimately, the Land Court recommended refusal of the grant of the leases and EA. . Subsequently, Acland were partially successful in a judicial review application in the Supreme Court, in which Bowskill J found that the Land Court had incorrectly considered issues related to groundwater. . However, her Honour rejected a review ground based on apprehended bias, on the basis that Acland had waived its right to complain about conduct at a directions hearing (described below), and that the published reasons had not re-enlivened such an apprehension. . Her Honour made orders remitting the matter to the Land Court, but with further consideration to be limited in its scope. .
Oakley Coal Action Alliance appealed in relation to the groundwater issue (among other things). . Acland cross-appealed in relation to the issue of apprehended bias. .
The directions hearing conduct
The allegation of apprehended bias initially focused on, and first arose out of, conduct that occurred at a directions hearing in the Land Court proceedings. After closing submissions had been made and the decision reserved in those proceedings, Acland applied to adduce new evidence. . Ultimately, the Land Court acceded to the application, but with the result that the anticipated timeframe for finalisation of the matter was extended. . An additional factor was that the Member had arranged to go on leave, on the reasonable assumption that the matter would be concluded by then. . Subsequently, a number of media stories were published which indicated that jobs may be lost if the matter was not concluded quickly, which identified the Member’s leave as a factor in the delay, and included some quotes from representatives of Acland, one of whom called for time limits on such proceedings. –.
As a result of these stories, the Member directed an email be sent to the parties, informing them that a hearing would be held to “provide [Acland] with an opportunity to explain its actions”. . The email described the Acland representatives’ statements as an “attempt to erode public confidence in the Land Court” and said that it “could be regarded as contempt of court”. . However, there was no basis for requiring any explanation by Acland, nor was there any arguable case of contempt. The stories merely reported true facts. . Further, the hearing that followed was conducted by the Member in a combative manner. . Justice Bowskill relevantly concluded – and the Court of Appeal agreed – that a hypothetical reasonable lay observer “might reasonably apprehend that, in that state of mind, the Member would not be able to be impartial as between the parties”. .
However, at first instance Bowskill J concluded that Acland had elected not to rely on its right to have the member disqualify himself at that time. Acland did not challenge that conclusion. . Instead, Acland’s appeal focussed on the judgment ultimately published, which it says gave rise to a fresh apprehension of bias (and contends that Bowskill J was wrong to conclude otherwise). . The Court of Appeal reasoned that it was necessary to consider these allegations in the “context of other relevant facts” (in particular, the conduct at the directions hearing). .
Whether the Land Court’s reasons gave rise to apprehended bias
Acland pointed to a number of parts of the judgment which it said gave rise to a fresh apprehension of bias. For example, the Member had likened one objector in the proceedings as being in a situation similar to The Castle – a film about a “little person trying to protect his property from a corporate giant”. . This use of simile conveyed partiality by reason of sympathy. . In another example, when discussing community and social impacts of the proposed project, the Member asked a rhetorical question about whether Acland had engaged in a “deliberate ploy” to pressure someone to move. . The raising of that question, without answering it with evidence, carried a “powerful insinuation” which evidenced a lack of impartiality. . Other remarks about Acland in the judgment included that it had acted “quite intentionally like a bull in a china shop”, and that it had the “tendency to treat anyone who disagrees with it in a dismissive and disrespectful manner”. , .
The Court of Appeal agreed that the reasons gave rise to a fresh apprehension of bias (per Sofronoff P, Philippides JA and Burns J agreeing). . Apart from the comments noted above, Sofronoff P also focused on the Member’s discriminatory treatment of hearsay evidence by Acland’s witnesses (giving them less weight compared to the hearsay evidence of other objectors); some irrational findings in relation to Acland’s conduct (i.e. as showing disrespect to the Land Court); and on the Member’s discussion of the issue of delay (the matter which had “agitated him” at the directions hearing) when it was no longer relevant. .
Having concluded that there was apprehended bias in the reasons for judgment, it followed that Bowskill J’s orders for remittal on a more limited basis could not stand. The appeal was allowed and orders made for the applications to be referred back to the Land Court for a rehearing. , . Further, although it was not strictly necessary to do so, the Court confirmed Bowskill J’s conclusion that the Land Court did not have jurisdiction to consider the effects of the proposed mining operations on groundwater (in relation to the legislation that applied to these applications – which had since been amended for future applications). , .