Isbester v Knox City Council [2015] HCA 20

Isbester v Knox City Council [2015] HCA 20

This case focuses on Tania Isbester and Kirsten Hughes. Isbester owned a Staffordshire Terrier, Izzy, who attacked another dog. The owner of the other dog was also attacked, receiving a 1.5cm wound to the finger.

Ms Hughes was the Council’s Co-ordinator of Local Laws and was responsible for the regulation of domestic animals under the Domestic Animals Act (1994) Vic. She led the investigation into Ms Isbester’s dog Izzy and determined the charges to be laid.

The Council convened a panel to consider the case and decide on Izzy’s fate. Ms Hughes drafted a letter sent to Ms Isbester inviting her to attend the panel and present evidence. The letter also outlined the conclusions that could be reached by the panel, the make up of the panel, and the roles of those on the panel.

The letter stated that “[t]he officer involved in the investigation may be present but they will not be involved in the decision making.”1

Ms Isbester attended the panel and presented evidence in support of her dog Izzy. Ms Hughes was also involved in the panel – and the decision making process. After hearing evidence and discussing the case with the panel members (including Ms Hughes), the chairman of the panel instructed that the dog should be destroyed and had Ms Hughes draft reasons for his approval and signature. Ms Isbester was then informed of the decision by letter.

Ms Isbester challenged the decision in the Victorian Supreme Court claiming that Ms Hughes had apprehended bias.

What is apprehended bias?

The concept that “a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”2

What is a fair-minded lay observer?

The High Court wrote that: “The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.”3

The Supreme Court ruled that there was no apprehension of bias as the setting of a local council was very different to that of a Court. They wrote that “the institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application”.4

As a result they ruled that Ms Hughes previous involvement in the case did not result in apprehension of bias – “the requirement that there be an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the appellant’s submissions could be satisfied even where a decision-maker has been involved in the earlier prosecution. A fair-minded observer would not apprehend that there might be a disqualifying predisposition from this fact alone.”5

Ms Isbester then appealed the case to the Court of Appeal who also dismissed her application.

The High Court reversed the decision of the other courts and found that a “fair-minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision”.6

Justice Gaegler wrote that “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 … Ms Hughes’ frame of mind might have affected the views she expressed as a member of the Panel.”7

It is important to note that the High Court did not say that Ms Hughes was biased, but that a fair minded observer might reasonably apprehend that she might be bias. Four of the judges stated that the finding of apprehended bias “implies nothing about how Ms Hughes in fact approached the matter. It does not imply that she acted otherwise than diligently, and in accordance with her duties.”8 However this did not negate the circumstances that led to the conclusion of apprehended bias.

As a result of this decision a new panel has to be convened to hear the case. This shows the courts commitment to upholding the rule of law principles of the independence of the judiciary and the right to a fair trial.

Guest Post: Isbester, Natural Justice and Animal Rights (The Dog Case)

Guest post written by Dr. Binoy Kampmark who was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures in law and politics at RMIT University, Melbourne.

The High Court case of Isbester v Knox City Council [2015] HCA 20 is curious on a few levels. On the one hand, it suggests the sheer persistence of counsel to take the decision to the highest tribunal despite lower court stonewalling can pay dividends. In another sense, it showed that, on the issue of natural justice, the High Court can be unanimously swayed, irrespective of the subject matter.

The appellant, Tania Isbester, had been convicted in the Ringwood Magistrates Court for offending the Domestic Animals Act 1994 (Vic) for the attack of her Staffordshire terrier on another dog owner that resulted in injury of a small cut of 1.5cm. A hearing was subsequently held before the Knox Domestic Animals Act Committee, in which it was concluded that the dog, Izzy, be destroyed under s. 84P(e) of the Domestic Animals Act where the owner is found guilty of an offence under s. 29 of the same Act.

Isbester refused to believe that the circumstances of the attack entitled her dog to be put down. But the main point centred on whether the decision of the Council Committee be overturned because of the substantial involvement of one member of the panel. There had been no order of destruction of the animal under s. 29(12) of the Act.

Instead, the Council convened a panel of three of its own officers, one of whom was Kirsten Hughes, the Council’s Coordinator of Local Laws. Hughes was extensively involved in the case, investigating the identity of the dog, and determining that six charges should be laid with respect to the relevant attack.

Isbester was informed of these circumstances by letter, which also outlined that

“[t]he officer involved in the investigation may be present but they will not be involved in the decision making.”

The High Court pointed out that the Ms Hughes being on the panel meant that she would be part of the decision making process.

A challenge was duly mounted under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) alleging an apprehension of possible bias on the part of Hughes. The appellant vainly sought relief in the Victorian courts, before being granted leave to appeal to the High Court. The vital matter here, argued the justices, was one of whether a fair minded observer would think that Ms Hughes was biased in her decision making and therefore any decision the panel made.

The judges suggested that imputing a lack of impartiality as reasonably apprehended by a “fair-minded lay observer” was factual, contextualised by law, statutory regulation, and the nature of the position itself. Previous cases such as Jia Legeng and McGovern were of a different quality on issues of bias and incompatibility. Neutrality, argued a concurring Gageler J, was not “monolithic”, needing reference to the “kind of degree of neutrality” a hypothetical fair-minded observer would expect in making the decision within that statutory framework [58]. A Minister’s decision, governed by statute as determined in Jia Legeng, could not be treated with the same degree of “evident neutrality” as that of a judge [25]. McGovern, involving a statutory power vested in an elected council, similarly imported a range of considerations and opinions that could not be of that same order. Expressing various views on a planning application did not disqualify the councillors from being involved. Put simply, bias expected from a politician will be viewed differently to that of a judge, at least in the mind of the hypothetically fair lay observer.

The judges did note that such powers dealing with dogs were protective, subordinating the dog owner’s individual interests to that of the public. But any such decision made in that regard needed to be compliant with natural justice [30], and issues of whether the council had acted judicially or not was less helpful than the “impartiality of the decision-maker, given her particular involvement in the matter” [31]. Once the relevant conflict of interest is identified, the link between that interest and the possible “deviation from proper decision making is obvious” [49]. The test of disqualifying bias lay in the objective realm of possibility, not probability.

The High Court found that a

“fair-minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision under s. 84P(e)”[50].

Hughes’ involvement had been extensive, and did not conclude with the proceedings in the Magistrates’ Court. She did have an interest in the resolution of the proceedings, and it would have to be reasonably apprehended that “she would remain interested in whether the Magistrates’ Court granted the order [of destruction]” [42]. She organised the panel. She drafted the letter informing the owner of it.

The High Court did not focus on animal rights per se, skirting over them in favour of structural issues concerned with decision making. The court upheld the key rule of law principle of procedural fairness in decision making by an administrative body.

Those beating the drum of non-human liberties and entitlements to protection will be disappointed. While the terrier has been spared, it is worth noting that the appellant had already lost one dog by virtue of its violence to a Knox resident. The argument about protection has come secondary to the issue of procedure regarding the destruction of an animal deemed dangerous to the community. This is as much a problem for the animal’s fate as it is about the way laws on the subject of domestic animals are handled. Determinations are controlled by natural justice.

The implications for the Knox Council are significant. The legal bill has so far come to a hefty $600,000, with the authorities suggesting that more will be spent if necessary. And for all the legal fuss, the lawyer representing Ms Isbester claims that, “There will be a new panel hearing to decide whether or not a dog that caused a 1.5 centimetre scratch on a woman’s finger should be destroyed.” Justice must, after all, be seen to be done.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

*Featured Image is not Izzy the dog in the case but is of  Staffordshire Terrier named Jabula