Isbester v Knox City Council

Jeremy Gans, ‘News: A reprieve in the High Court’ (11 June 2015).

The High Court has unanimously allowed an appeal from the Victorian Court of Appeal on local government administrative panel processes. The appellant pled guilty to the offence of owning a dog that had caused a serious injury. The Knox City Council then convened a panel that used its discretionary power to order the dog’s destruction. One of the members of that panel had been the informant in the earlier prosecution, which Isbester argued constituted apprehended bias. The VSCA dismissed an appeal from the trial judge’s decision that no grounds of apprehended bias had been made out.

The High Court (Kiefel, Bell, Keane and Nettle JJ, Gageler J concurring) held that, whether the interest at stake is regarded as the plaintiff’s property right in the dog or the dog’s importance as a domestic pet, the Council was required to comply with the requirements of natural justice. In this case, the interest of the member who had earlier prosecuted the plaintiff was akin to a person bringing charges, which it is generally expected will conflict of the person deciding the charges and any consequential matters. It is not realistic to regard the prosecutor’s interest as coming to an end when the charges (which were directed to the past) were determined. That interest 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. A fair-minded person might reasonably apprehend that the prosecutor might not have brought an impartial mind to the decision to the destroy the dog. So, natural justice required that the decision be quashed. Gageler J concurred, but on the basis that the prosecutor’s involvement resulted in a breach of the implied condition of procedural fairness

High Court Judgment  [2015] HCA 20   10 June 2015
Result Appeal allowed. Decision of Council set aside.
High Court Documents Isbester
Full Court Hearing [2015] HCATrans 79  14 April 2015
Special Leave Hearing [2015] HCATrans 25 13 February 2015
Appeal from VSCA [2014] VSCA 214  10 September 2014
Trial Judgment, VSC
[2014] VSC 286  17 June 2014
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.