It’s a Dog’s Life: Isbester v. Knox City Council, [2015] HCA 20

Isbester v. Knox City Council, [2015] HCA 20 is an interesting example of the operation of the rule against bias to administrative proceedings.

At the centre of the tale is a dog, Izzy, who had attacked and injured a person. Legislation in the Australian province of Victoria gives the Council the power to order that a dog be destroyed in such circumstances. The problem here arose from the involvement of a Mrs. Hughes in the decision-making process. As the Council’s Co-ordinator of Local Laws, she had been an active participant in the investigation that led to the initiation of legal proceedings in the Magistrates’ Court relating to Izzy. Subsequently, she sat on the panel that ordered Izzy’s destruction.

The general test is well known: would the process create a reasonable apprehension of bias in the mind of an impartial observer. As the majority (Kiefel, Bell, Keane and Nettle JJ.) explained, two questions arise: “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” (at para. 21).

For them, the key question was the interest Mrs. Hughes would have in seeing charges brought to their successful conclusion: “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 consonant with the prosecutor’s view of guilt or punishment” (at para. 46). As Gageler J. put it, “a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person” (at para. 63).

Here, Mrs. Hughes’ prior investigative involvement tainted her later participation with a reasonable apprehension of bias:

It is not realistic to view Ms Hughes’ interest in the matter as coming to an end when the proceedings in the Magistrates’ Court were completed. A line cannot be drawn at that point of her involvement so as to quarantine the Magistrates’ Court proceedings from her actions as a member of the Panel. It is reasonably to be expected that her involvement in the prosecution of the charges created an interest in the final outcome of the matter. Ms Hughes’ continuing interest in the matter may be tested by asking whether, if the Magistrates’ Court had been asked to make an order for destruction, as could have been done following conviction, it might reasonably be apprehended that she would remain interested in whether the Magistrates’ Court granted the order. The answer must clearly be “Yes”. In any event, it is not accurate to describe Ms Hughes as a person who in fact had no ongoing involvement in advancing the matter after the Magistrates’ Court proceedings. Having participated in obtaining the conviction for the offence…, she organised the Panel hearing and drafted the letter advising the appellant of it. She supplied the Panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog. If Ms Hughes could not actually be described as a prosecutor with respect to the [final] decision…, she was certainly the moving force (at paras. 43-44).

As she had a “material part” in the decision, it had to be quashed (at para. 48).

In a concurring judgment, Gageler J. emphasized procedural fairness rather than natural justice and set out the appropriate framework slightly differently (at paras. 55-63), but came to the same conclusion:

Ms Hughes might have developed, as Ms Isbester’s prosecutor, a frame of mind incompatible with the dispassionate evaluation of whether administrative action should be taken against Ms Isbester’s interests in light of Ms Isbester’s conviction. Ms Hughes’ frame of mind might have affected the views she expressed as a member of the Panel, and the expression of those views might have influenced not only the recommendation made by the Panel…but also the acceptance of that recommendation…Those are all possibilities which fairly arise from the established facts. There is nothing fanciful or extravagant about them. A hypothetical fair-minded observer with knowledge of all of the circumstances would be quite reasonable to apprehend them (at para. 58).

This content has been updated on July 2, 2015 at 15:27.