On 10 June 2015 the High Court handed down its decision in Isbester v Knox City Council – the appeal by Ms Tania Isbester against the decision of Knox City Council to destroy her Staffordshire Terrier, Izzy.  The majority of Kiefel, Bell, Keane and Nettle JJ, with Gageler J concurring, found that the Council’s decision was affected by a reasonable apprehension of bias because of the involvement in the decision-making process of the council officer responsible for the investigation and prosecution of related offences against Ms Isbester.

The High Court found that the question to be answered was whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the Council’s decision because of the involvement of the investigating officer in the decision-making process.  It was not necessary to establish that the Council’s decision was actually affected by bias, or that the investigating officer improperly interfered with the decision-making process.

The Court’s inquiry focused on whether the investigating officer had an interest in the outcome of the Council’s decision because of their broader involvement in the matter, and whether, from the perspective of an objective observer aware of that broader involvement, the investigating officer’s involvement lead to an apprehension that the Council had deviated from the course of deciding the case on its merits.

The majority held that the investigating officer’s involvement in the prosecution of the charges against Ms Isbester created an interest in the final outcome of the matter, and that the a prosecutor may reasonably have an interest “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.”  The investigating officer’s inclusion in the panel that decided to destroy Izzy, regardless of her actual influence on that decision, created the apprehension that the investigating officer’s interest in the matter prevented a fair, balanced and impartial consideration of the matter according to the law and the merits, as required under the common law principles of natural justice.

The Council’s decision to destroy Izzy, who has been in the Council’s custody since June 2013, was quashed and a costs order was made against the Council.

This case provides a useful clarification of the natural justice requirements applicable to local council decisions under the Domestic Animals Act 1994 (Vic), and generally, and paints a confounding illustration of the lengths to which some councils will go to defend their decisions to destroy animals.