The recent High Court decision of Isbester v Knox City Council [2015] HCA 20  is an important case for all councils and its members of staff who are delegated the power under s 84P(1) of the Domestic Animals Act 1994 (Vic) (Act) to destroy a dog.

The High Court unanimously held that the decision of Knox City Council (Council) to destroy the appellant’s dog be quashed because of the substantial involvement of Council’s Coordinator of Local Laws (Coordinator) in both the prosecution of the appellant and the decision as to the fate of the dog. It was determined that a reasonable apprehension of bias existed, which is an aspect of the wider principles of natural justice.

The decision

In 2012, the appellant was prosecuted for a number of offences under the Act. The Coordinator was the nominal informant in the prosecution and signed some of the charges. The Coordinator also directed Council employees to further investigate certain matters, spoke with one of the complainants and instructed Council’s solicitors to prosecute the charges.

In September 2013, the appellant pleaded guilty to a number of charges, including the charge that enlivened Council’s power under (what was then) s 84P(e) to destroy the dog.

Shortly after the guilty plea, the Coordinator advised the appellant that Council would convene a panel to hear and determine whether the dog should be destroyed. The panel consisted of three Council officers, a Director, a Manager and the Coordinator. Each of the panel members held a delegation from Council for the purposes of s 84P(e) of the Act but, pursuant to Council policy, it was the Director who was responsible for making the final decision.

The appellant attended the panel hearing, provided evidence and made submissions to the panel. After a detailed discussion between the panel members, the Director decided that the appellant’s dog should be destroyed (Decision).

The appellant, unsuccessfully, sought judicial review of the Decision in the Supreme Court of Victoria and the Court of Appeal. The appellant was granted leave to appeal to the High Court on the sole issue of an apprehension of possible bias on the part of the Coordinator.

The governing principle

Justices Kiefel, Bell, Keane and Nettle, in their joint judgment, reiterated that the governing principle for apprehended bias is that whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made.

It was observed that the governing principle has been applied to many kinds of decision-making and decision-makers. The High Court noted that while the governing principle is largely a factual question, it is necessary to take into account the legal, statutory and factual contexts in which the decision is made. In other words, how the governing principle with respect to apprehension of bias is applied depends upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision maker. So, 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.

The application of the governing principle

The concern as to the impartiality of the Coordinator stemmed from her involvement in the prosecution of the charges prior to the Decision. The question to be asked is whether it might reasonably be apprehended that a person in the Coordinator’s position would have an interest in the Decision which could affect her proper decision-making.

Previous case law has held that a prosecutor, accuser or other moving party in a proceeding might be expected to have an interest in the outcome of the charges and that interest would conflict with the objectivity required of a person deciding the charges and any consequential matters. An interest of that kind points to the possibility of a deviation from the true course of decision-making.

Following the authorities, the High Court held that it is reasonable to expect that the Coordinator’s involvement in the prosecution of the charges created an interest in the final outcome of the matter. That interest did not end, as contended by the Council, when the proceedings in the Magistrates’ Court came to an end.

The High Court further noted that, having participated in the Magistrates’ Court charges, the Coordinator organised the panel hearing, informed the appellant of it, and supplied the panel with evidence. Although the Coordinator was not the person who ultimately made the Decision, she was the ‘moving force’ and played a material part in the Decision. The High Court further held that the participation of others in the hearing and decision-making process did not overcome the apprehension that the Coordinator’s interest in the outcome might affect not only the Coordinator’s decision-making, but that of others.

In a separate judgment, Justice Gageler held that, being the prosecutor of the Magistrates’ Court charges, the Coordinator might have developed a frame of mind incompatible with the dispassionate evaluation of whether administrative action should be taken against the appellant’s interests in light of her conviction. The Coordinator’s frame of mind might have affected the views she expressed as a member of the panel and those views might have influenced the ultimate decision.

Implications for decision makers

This case acts as a reminder to decision makers that perceived fairness in a decision making process is as important as affording actual fairness.

For those councils that convene a panel to decide the fate of a dog under s 84P(1)(e), it is imperative that none of the panel members had any involvement in the prosecution of the owner of the dog. It is even desirable that the team leader or coordinator of the investigating officer not be part of any panel, lest it still be said that these persons have an interest in the outcome.

Of course, it is not mandatory to convene a panel in order for a council to exercise its power under s 84P(1)(e). A council may properly exercise its power under s 84P through a single decision maker. That person must not, however, have had any involvement in the prosecution of the owner of a dog.

While those persons involved in the prosecution should not be part of a panel or the single decision maker, it is appropriate for them to address the panel (or single decision maker) by providing a written report or making oral submissions. A copy of any written report must be provided to the owner of the dog and any oral submissions made should be made in the owner’s presence.

In light of this decision, we recommend that councils review their policies and procedures to ensure that those persons involved in the prosecution are not involved in the decision making process.

This decision also provides some practical guidance to councils about what should be considered when deciding whether to exercise the power under s 84P(1)(e). The High Court commented that the discretionary power is broad, consistently with its protective purpose. It went on to say that:

[t]he question for the Council, and its delegates, in exercising the power under section 84P(e) involves the safety of the public. Matters relevant to the decision would include a dog’s propensity for attacking dogs and persons and whether measures other than destruction could be taken without exposing the public to an unacceptable risk of harm, for example, whether the animal could be effectively restrained.

The High Court has not attempted to provide an exhaustive list of relevant matters but it has confirmed that community safety and alternative means of mitigating the risk of harm are the critical considerations.

To view the decision in full, please click here to view attached PDF.