In this case study:

  • Apprehended Bias
  • Fair-minded Lay Observer
  • Independence of the Judiciary
  • Right to a Fair Trial
  • Access to Justice

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.

Discussion Questions:

1. What is the difference between apprehended bias and actual bias?

2. What information does a fair-minded lay observer need to know?

3. Why did the High Court disagree with the Supreme Court?

4. Why did the High Court rule that Ms Hughes had apprehended bias?

5. How does apprehended bias relate to the rule of law?


  1. Kiefel, Bell, Keane, Nettle [7]
  2. Kiefel et al. [12]
  3. Kiefel et al. [23]
  4. Kiefel et al. [27]
  5. Kiefel et al. [14]
  6. Kiefelet al. [50]
  7. Gaegler [68]
  8. Kiefel et al. [50]