Golden v V’landys

(2016) 339 ALR 610; [2016] NSWCA 300

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial Review
3. › Apprehended Bias
4. › Decision-maker with personal interest in subject matter of decision
5. › Whether fair-minded observer might reasonably apprehend decision-maker might not apply impartial mind
6. › Whether logical connection between letter of demand from decision-maker's solicitors and apprehended deviation from deciding on merits
7. › Whether role in initiating proceedings incompatible with making decision
8. › Double might test
1. Administrative Law
2. › Judicial Review
3. › Improper Purpose
4. › Exercise of consensual power under rules of racing
5. › Whether power exercised for purpose of punishing rather than regulating racing
6. › Whether inference of improper purpose available where evidence reconcilable with proper exercise of power
7. › Subjective state of mind of decision-maker
8. › Thoroughbred Racing Act 1996 (NSW), ss 13, 14
1. Administrative Law
2. › Judicial Review
3. › Discretion to Refuse Relief
4. › Failure to exhaust alternative remedies
5. › Failure to appeal within time
6. › Whether aggrieved party acquiesced or waived right to judicial review
7. › Whether serious departure from procedural fairness warrants relief notwithstanding alternative remedies
1. Tort
2. › Misfeasance in Public Office
3. › Elements of the tort
4. › Whether decision-maker knew or was recklessly indifferent to invalidity of decision
5. › Whether failure to give evidence creates evidential onus
6. › Whether objective risk of appearance of bias sufficient to prove knowledge or reckless indifference

Quick Take

A decision-maker who simultaneously threatens personal legal proceedings against a person over the same conduct that is the subject of a disciplinary decision will be disqualified for apprehended bias. The logical connection test does not require proof of personal animus. Where appeal rights have expired but the aggrieved party has not acquiesced or waived the right to judicial review, and there has been a serious departure from procedural fairness, the discretion should generally be exercised in favour of granting relief.