(New Zealand Court of Appeal) The court was asked about the validity of a decision of a local council where it was said that a councillor had already made up his mind: ‘It cannot be doubted that one of the cardinal principle of natural justice, and one of very wide application, is that in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be a judge in his own cause. But again, the extent to which this fundamental principle applies must be governed by the relevant circumstances, including, especially, the statutory provisions relating to the function. It is a patent consequence of the rule that no man can be a judge in his own cause that where the circumstances reasonably indicate the likelihood of bias on the part of the adjudicator, he will, unless one of the exceptions stated above apply, be disqualified. It is now necessary to see, in the light of the applicable circumstances, to what extent these rules apply to a council dealing with objections to a proposed street stopping. It is obvious that before a council reaches the stage of deciding to put in motion the machinery for stopping, much investigation will have been undertaken and many decisions made. There will have been a resolution passed by the council. A fair minded and responsible person might well think that when a council have reached that stage of decision, a real likelihood of bias must be seen to be present, because the council must to a large extent have pre-determined the issue. Nevertheless, the Legislature, well-knowing this, has designedly left it to councils to determine at the next stage whether objections should be sustained. So something less than the scrupulous state of impartiality and its appearance required of Courts of justice is required of councils in these circumstances. We think that the state of impartiality which is required is the capacity in a council to preserve a freedom, notwithstanding earlier investigations and decisions, to approach their duty of inquiring into and disposing of the objections without a closed mind, so that if considerations advanced by objectors bring them to a different frame of mind they can, and will go back on their proposals … ‘
McCarthy P
[1974] 1 NZLR 545
England and Wales
Cited by:
Cited – Island Farm Development Ltd, Regina (on the Application of) v Bridgend County Borough Council Admn 25-Aug-2006
The claimant applied for a review of a decision by the respondent council not to sell it land.
Held: The challenge failed. The councillors had acted in accordance with advice given to them by officers, and ‘the committee was concerned only to . .
Cited – Partingdale Lane Residents’ Association, Regina (on the Application of) v Barnet London Borough Council Admn 2-Apr-2003
Complaint was made that a Councillor had closed his mind to any arguments and had predetermined the decision on a proposed road re-opening order.
Held: The application was allowed. Councillor Coleman had himself gone beyond a legitimate . .
Lists of cited by and citing cases may be incomplete.
Local Government
Updated: 17 November 2021; Ref: scu.244705
