Isbester v Knox City Council  HCA 20 (10 June 2015)
In a recent HCA case it was decided that the decision of a council panel to destroy a dog was invalid because one of the panel members had previously been involved in the prosecution of the dog’s owner in the Magistrates’ Court.
The appellant had been convicted in the Ringwood Magistrates’ Court of an offence under s 29(4) of the Domestic Animals Act1994 (Vic) (“the Act”), on a charge that her Staffordshire terrier had attacked a person and caused serious injury, being a 1.5cm laceration to a person’s finger. Following a hearing before a panel, a delegate of the respondent who had been a member of the panel made a decision under s 84P(e) of the Act that the appellant’s dog be destroyed. Another member of the panel, an employee of the respondent who had participated fully in the panel’s decision making-process and drafted the reasons for decision, had been the informant in relation to the charges in the Magistrates’ Court and was substantially involved in the prosecution of the charges.
The appellant, unsuccessfully, sought judicial review of the respondent's decision in the Supreme Court of Victoria. The appellant's appeal to the Court of Appeal of the Supreme Court of Victoria was limited to the ground of apprehended bias. The Court of Appeal found that the ground was not made out and dismissed the appeal. By grant of special leave, the appellant appealed to the High Court.
The High Court unanimously allowed the appeal. The Court found that a fair-minded observer might reasonably apprehend that the respondent's employee might not have brought an impartial mind to the decision to destroy the appellant's dog, because her role in the Magistrates' Court proceedings gave her an interest that was incompatible with her involvement in the decision-making process of the panel. The Court found that, although 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 respondent's employee in the Magistrates' Court prosecution might affect not only her own decision-making, but also that of the other members of the panel. The Court found that natural justice required that she not participate in making the decision, and that the decision of the respondent's delegate must therefore be quashed.
The appellant was represented by Richard Kendall QC and list member Andrew Felkel.
A full copy of the High Court’s decision can be found at: http://www.austlii.edu.au/au/cases/cth/HCA/2015/20.html.
About the Barrister:
Andrew has a general commercial practice with a specialisation in competition law.
Andrew was awarded an honours degree in economics from the University of Melbourne in 1998. After working in a related field for five years, he returned to study and completed his Juris Doctor, also from the University of Melbourne, in 2004-05. In 2004 he was presented with the Dean’s prize for the highest grade awarded in Civil Procedure.
In 2006 Andrew joined the Australian Competition and Consumer Commission where he worked most notably in the telecommunications and cartel branches, and was involved in the ACCC’s investigation into price fixing in the air cargo industry.
Andrew then spent twelve months in the competition group at Mallesons Stephen Jaques as a law clerk and then solicitor. While at Mallesons Stephen Jaques, Andrew worked on a variety of competition and general commercial matters, including a submission by BPay opposing eBay’s exclusive dealing notification and advising an international participant in the automotive industry on contractual issues surrounding the appointment of an Australian dealer.
In 2008 Andrew moved to the National Competition Council where he spent eighteen months employed as Legal Counsel. At the NCC Andrew was heavily involved in numerous applications under the Gas Law and Rules, as well as general Part IIIA matters under the Trade Practices Act 1974.