1. Thank you Counsels for your kind assistance to this court. In considering this application before me, I was asked to decide whether the Respondents, the Lindisfarne Council, decision of not granting a licence to the Applicants, the Iraq Out Now Coalition (IONC), to stage a public march on Anzac Day, ought to be set aside due to the following reasons:
(i) That the Respondents had practiced actual biasness in coming to the decision in issue; or on the alternative,
(ii) That there were reasonable grounds for the Applicants to apprehend biasness from the Respondents in coming to the decision in issue.
2. As a matter of housekeeping and clarity, the contentions in Para 1 of my judgement were alleged (by the Applicants) to be found, by evidence, from the public press release by five (5) out of the thirteen (13) members sitting in the Respondents council.
3. Further, the Applicants contended that the contents of the said public press release served an indication or strong suggestions that the decision in issue was made only guided by political views of part or all members in the Respondent council and therefore underlines procedural unfairness and that the decision in issue was prejudicial and directed at the political nature of the Applicants.
4. Whilst counsels for both parties had adopted a similar set of authorities, there were great polarities in the interpretation of the same. As a general point, there was no disagreement raise at this stage that this court is vested with the power to exercise a decision on the current application for prohibition by virtue of Section 75 (v) of the Constituion.
5. As a summary of the law, the test of reasonable apprehension of biasness is one of objective and found to be in the same standards between administrative, quasi-judicial and judicial decision makers (R v Gough [1993] AC 646). This position was affirmed in Hot Holdings v Creasy (2002) 210 CLR 438 and had clearly put forth firmly that the point of view of the observer is an important factor for the court to assess.
6. In making a proper finding of the contentions as put forth by the Applicants and the evidence produced before this court, I found great assistance in the judgement of Gleeson CJ in Hot Holdings. He was cited in the case that in assessment of the required test of reasonable apprehension of biasness, the observer and in this case the Applicants must have complete and absolute knowledge of the process in which the decision in issue was made out and the alleged biasness or apprehension of biasness must point towards part or parts of the entire process in issue. It was further emphasized that the knowledge cannot be selectively acquired or adopted by the observer.
7. In Hot Holdings, there was a real contentious issue with the report which the principle decision maker relied on in coming to a decision. Here before my esteem colleagues and me, it is clear that the Applicants’ action was centered on the press release and the possible impact it had on the decision in issue. There was no strong and if not concrete evidence to suggest, by the Applicants, that either the part of the decision making process that could possibly be tainted by the political views of the 5 members of the Respondents council or that the said views of the 5 members were instrumental in the outcome of the decision in issue.
8. I was also guided by Kitto J obiter in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] 113 CLR 475 at 504:
“What the law requires in the discharge of a quasi-judicial function is judicial fairness… what is fair in a given situation depends on the circumstances.”
I am inclined to adopt the interpretation in Century Metal and Mining NL v Yeomans (100) ALR 383 and Minister for Immigration v Mok Gek Bouy (1994) 127 ALR 223 that it refers to all factors relevant to the whole of the circumstances.
9. I agreed with the Respondents counsel that all 13 members were given equal weights and voting rights to the decision in issue. Whilst I concur with Kirby J in Hot Holdings, I am not prepared to investigate into the meeting minutes of that faithful day, I am persuaded by the Respondents contention that in making a decision towards a matter of the given nature, there would be numerous concerns i.e. the public sentiments, the nature of the date of march, the traditions of Australia and its practice in Lindisfare, the allocation of resources & etc by the administrators beyond the political inclination of some of its members. As a further note, I have also not find that those considerations to be inconsistent with the spirit and purpose of Local Highway Act.
10. On the other hand, the Applicants were unsuccessful in relating their contentions in evidence and convince me that the statements made by the 5 members, as pointed out, were instrumental or at least of high importance in process that might influence the final outcome altogether or have reasonably raised a claim of biasness in the process. Thus, I do not find that the Respondent had not practiced actual biasness in the process.
11. In addressing the Applicants’ alternative arguments, whilst I agree with the principles found in Re Macquarie University, ex parte Ong (1989) 12 NSWLR 113, I find it necessary to distinguish the facts of that case from the matter before this court. A letter from the VC was circulated to all [emphasis put] members of the inquisition panel and the main focus of that case was whether the inquiries as performed by the said panel were fair based on such undue influence. Nothing in this application indicated or suggest of a contamination of process of the nature found in Ong.
12. It was firmly established in R v Commonwealth Conciliation and Arbitration Commission, ex parte Angliss Group, that in determination of whether the decision makers had come to a conclusion with an unprejudiced mind, that mind need not necessarily be one which has not given thought to the subject matter or one which having thought through it, has not formed any views or inclination of mind upon or with respect to it.
13. Also in Angliss Group, the court found the duty of the members in the committee was to have considered every relevant factors and arguments that may be addressed to them. Here, I am satisfied that the Respondents have performed that required necessary duty on that faithful meeting where the decision in issue was produced and find no reasonable grounds for the Applicant to apprehend biasness from the process of decision making by the Respondents.
14. I did not find the Stollery Principles cited in the various authorities of much assistant to the current application. I am of the opinion that it would only be relevant if the Applicants had applied to appear before the Respondents to have their case heard or that there was a need for them to be heard under the relevant legislation.
15. The Applicants have not, both in their submission and evidence, pointed out clearly to this court that there was clear and substantial conflict of interest within the members of the Respondents council or had made out their case that their political inclination was the principle factor that had influence and impact on the outcome of the decision in issue that might or had resulted in procedural unfairness.
16. I must further and firmly address that the court is not the ideal forum to iron out political differences. It would amount to an abuse of process and unnecessary litigation and should be discouraged. It is my opinion that an issue of such nature should be addressed to a different forum which the Applicants had seemingly failed to either consider or employed.
17. In a similar premise, albeit the non requirement of nicety and political correctness in law, I would however caution the Respondents that given the nature of their offices, they ought to be more prudent in making certain public comments.
18. For the reason cited above, I therefore find for the Respondents and dismiss this application with cost to the Respondents.
19. Special Leave for appeal denied.
Dixon Soh J
*wink*
