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| | | | | | | NCAT Legal Bulletin Issue 8 of 2017
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal. This issue covers the period of August to September 2017.
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| Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28
17 August 2017 - Kiefel CJ, Gageler, Keane, Nettle, Edelman JJ
In brief: The High Court dismissed an appeal from the Full Federal Court, with a majority (Kiefel CJ, Keane and Nettle JJ) holding that a Bankruptcy Court, when exercising jurisdiction under s 52 of the Bankruptcy Act 1966 (Cth), has the power to “go behind” a judgment, in certain circumstances, to investigate whether a debt rely upon is truly owing. Section 52 of the Bankruptcy Act relevantly provides that:
“(1) At the hearing of a creditor's petition, the Court shall require proof of:
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(c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
…”
After reviewing the relevant authorities (at [42]-[64]), in particular the decision of the High Court in Wren v Mahony (1972) 126 CLR 212, the majority held (at [68]) that (footnotes omitted):
“For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability.”
Read the decision on the High Court of Australia website.
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| Knight v Victoria [2017] HCA 29
17 August 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously held that s 74AA of the Corrections Act 1986 (Vic) is not invalid, insofar as it is not contrary to Ch III of the Constitution. Relevantly, s 74AA of the Corrections Act provides that:
“Conditions for making a parole order for Julian Knight
(1) The Board must not make a parole order under section 74 in respect of the prisoner Julian Knight unless an application for the order is made to the Board by or on behalf of the prisoner.
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(3) After considering the application, the Board may make an order under section 74 in respect of the prisoner Julian Knight if, and only if, the Board—
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(a) is satisfied (on the basis of a report prepared by the Secretary to the Department) that the prisoner—
(i) is in imminent danger of dying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person; and
(ii) has demonstrated that he does not pose a risk to the community; and
(b) is further satisfied that, because of those circumstances, the making of the order is justified.
…”
In upholding the constitutional validity of s 74AA, the Court rejected (at [5]-[6]) the plaintiff’s arguments that:
(1) s 74AA substantially impaired the institutional integrity of the Supreme Court of Victoria, and
(2) s 74AA enlisted judicial officers to perform a function incompatible with the exercise of federal jurisdiction.
In relation to the plaintiff’s first argument, the Court held that (footnotes omitted):
“[26] There are circumstances in which the party-specific nature of legislation can be indicative of the tendency of that legislation to interfere with an exercise of judicial power. This is not one of them.
[27] The sentences of imprisonment for life imposed by [the trial judge] provide the authority for the imprisonment of Mr Knight during the term of his natural life. The minimum term of those sentences fixed by [the trial judge] under s 17 of the Sentences Act as part of those sentences did no more than to set a period during which Mr Knight was not to be eligible to be released on parole. As [the trial judge] expressly recognised at the time, the fixing of that minimum term said nothing about whether or not he would be released on parole at the expiration of that minimum term.
[28] Whether or not Mr Knight would be released on parole at the expiration of the minimum term was simply outside the scope of the exercise of judicial power constituted by imposition of the sentences. The sentences imposed by [the trial judge] could not, and did not, speak to that question.
[29] By making it more difficult for Mr Knight to obtain a parole order after the expiration of the minimum term, s 74AA does nothing to contradict the minimum term that was fixed. Nor does it make the sentences of life imprisonment "more punitive or burdensome to liberty". The section did not replace a judicial judgment with a legislative judgment. It does not intersect at all with the exercise of judicial power that has occurred.”
In relation to the plaintiff’s second argument, the Court held that:
“[37] Enlistment of a judicial officer in performance of the function being neither required nor imminent, it is unnecessary and inappropriate to determine whether s 74AA would be invalid in circumstances in which the function conferred by the section might be sought to be exercised by a division of the Board which included a judicial officer.”
Read the decision on the High Court of Australia website.
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| Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30
17 August 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle JJ
In brief: The High Court allowed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The majority (Kiefel CJ, Bell, Gageler and Keane JJ) held (at [1], [56]) that s 74(1)(ca)(ii) of the Mining Act 1978 (WA) imposed a condition precedent on various statutory officers and the Minister, in relation to the exercise of powers under the Mining Act concerning the progression of an application for a mining lease to a grant of that lease. Section 74(1)(ca)(ii) relevantly requires an application for a mining lease to be accompanied by a mineralisation report.
In construing s 74(1)(ca)(ii), the majority held (at [60]-[61]) that the starting point was the statement of the plurality (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389, namely that (footnotes omitted):
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment ... There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."
The majority then observed (at [64]) that the Western Australian Court of Appeal had not been referred to, and did not consider, the relevant authorities concerning statutory regimes which confer power on the executive government of a State to grant exclusive rights to exploit the resources of that State (footnotes omitted), holding:
“[T]he line of authority which establishes that where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant. When a statute that provides for the disposition of the statutory power, that mode must be followed and observed". The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise disposition of interests in the resources of a State "prescribes a mode of exercise of the statutory power, that mode must be followed and observed". The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise.”
After reviewing the language of the Act, including the text of s 74(1)(ca)(ii) and its context (at [67]-[77]), and the objects of the legislative regime, including the Explanatory Memorandum to the Mining Amendment Bill 2004 (WA) and the Second Reading Speech to that Bill (at [82]-[90]), the majority held (at [64]-[66]) that there was no reason to depart from the settled approach to the construction of such a statutory regime.
In doing so, the majority followed the line of authority established and applied in Watson's Bay and South Shore Ferry Co Ltd v Whitfield (1919) 27 CLR 268; Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533; Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 at 76; [1977] HCA 71; Mabo v Queensland [No 2] (1992) 175 CLR 1 at 63-64; Wik Peoples v Queensland (1996) 187 CLR 1 at 173; Western Australia v Ward (2002) 213 CLR 1 at 121-122 [167], see also: New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (2016) 91 ALJR 177 at 200 [121]; 339 ALR 367 at 394-395; [2016] HCA 50.
Read the decision on the High Court of Australia website.
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| Plaintiff S195/2016 v Minister for Immigration and Border Protection [2017] HCA 31
17 August 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously held that certain actions of the Commonwealth, its officers, and the Minister for Immigration and Border Protection, were not invalid by reason of the Supreme Court of Papua New Guinea’s decision in Namah v Pato (2016) SC1497. Relevantly, the Supreme Court, in Namah v Pato, held that the treatment of the plaintiff had contravened provisions of the PNG Constitution and was unsupported by PNG law (at [5]).
In doing so, the Court held that the Commonwealth’s legislative or executive power is not constitutionally limited by any need to conform to the domestic law of another country (at [19]-[20]) and that the statutory “arrangement”, made between PNG and the Commonwealth in accordance with s 198AHA of the Migration Act 1958 (Cth), remained a valid “arrangement” even if the other person or body to the arrangement lacked lawful authority or capacity to enter it (at [19], [21]).
Read the decision on the High Court of Australia website.
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| Transport Accident Commission v Katanas [2017] HCA 32
17 August 2017 - Kiefel CJ, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria, holding that the Victorian Court of Appeal had correctly applied the “narrative test” for serious injury under s 93(17) of the Transport Accident Act 1986 (Vic), as laid down in Humphries v Poljak [1992] 2 VR 129. After summarising the content of the narrative test (at [4]-[6]), and reviewing the reasons of the primary judge (at [11]-[16]) and the reasons of the Victorian Court of Appeal (at [17]-[19]), the Court held (at [21]-[27]) there had been no departure from the narrative test.
Read the decision on the High Court of Australia website.
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| Graham v Minister for Immigration and Border Protection [2017] HCA 33
6 September 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court, by majority, held that s 503A of the Migration Act 1958 (Cth) is invalid to the extent that s 503A(2) prevented the Minister for Immigration and Border Protection from being required to divulge or communicate certain information to the High Court when the Court is exercising jurisdiction under s 75(v) of the Constitution, or the Federal Court when it is exercising jurisdiction under s 476A(1)(c) and (2) of the Migration Act, to review decisions made by the Minister under ss 501, 501A, 501B or 501C of that Act.
Section 503A(2) of the Migration Act relevantly provides:
“(2) If:
(a) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA; or
(b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);
then:
(c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and
(d) if the information was communicated to an authorised migration officer--the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.”
As a starting point, the majority (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) observed (at [31]) that “the Commonwealth Parliament can regulate aspects of judicial fact-finding”, holding (at [32]) that (footnotes omitted):
“The Parliament may, without offending Ch III of the Constitution, alter the onus of proof or standards of proof. It may modify, or abrogate, common law principles such as those governing the discretionary exclusion of evidence. It may legislate so as to affect the availability of privileges, such as legal professional privilege.”
The majority then considered (at [35], [38]) whether legislation which denied a court, exercising jurisdiction under s 75(v), the ability to see the evidence upon which a decision was based was permissible under the Constitution. The Court held (at [64]) that:
“[Section 503A(2)] amounts to a substantial curtailment of the capacity of a court exercising jurisdiction under or derived from s 75(v) of the Constitution to discern and declare whether or not the legal limits of powers conferred on the Minister by the Act have been observed.”
The majority also discussed (at [39]-[49]) the authorities concerning the function of the judicial branch of government to declare and enforce the law that limits its own power and the power of other branches of government. Furthermore, Edelman J’s dissenting reasons (at [71]ff) considered, at length, the doctrinal and historical foundations of the Court’s authority to grant remedies under s 75(v) of the Constitution. For the purposes of brevity, these discussions have been omitted from the present summary.
Read the decision on the High Court of Australia website.
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| SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
6 September 2017 - Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
In brief: The High Court, by majority, dismissed two appeals from the Full Court of the Federal Court of Australia, holding that the complementary protection regime in s 36 of the Migration Act 1958 (Cth) required the existence of an actual subjective intention by a person to inflict pain or suffering or to cause extreme humiliation, to establish that a non-citizen will be subjected to “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” respectively.
Section 36 of the Migration Act relevantly provides that:
“Protection visas--criteria provided for by this Act
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(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm
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(2A) A non-citizen will suffer significant harm if:
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(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.”
Furthermore, s 5(1) relevantly provides that:
“"cruel or inhuman treatment or punishment " means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature…
…
"degrading treatment or punishment " means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”
Tasked with construing these provisions of the Migration Act, the majority (Kiefel CJ, Nettle and Gordon JJ) held (at [14]) that (footnotes omitted):
“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”
Applying the reasoning of the plurality (Kiefel, Bell and Keane JJ) in Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12 at 490, the majority held (at [26]) that:
“The reference in the Act to "intentionally inflicting" and "intentionally causing" is to the natural and ordinary meaning of the word "intends" and therefore to actual, subjective, intent. As Zaburoni confirms, a person intends a result when they have the result in question as their purpose.”
Read the decision on the High Court of Australia website.
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| The Queen v Holliday [2017] HCA 35
6 September 2017 - Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
In brief: The High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of the Australian Capital Territory, holding that it was not possible to convict the respondent of inciting another person to procure a third person to commit a criminal offence under s 47 of the Criminal Code 2002 (ACT). Section 47 relevantly provides that:
“Incitement
(1) If a person urges the commission of an offence (the offence incited), the person commits the offence of incitement.”
As a starting point, the plurality (Kiefel CJ, Bell and Gordon JJ) observed (at [39]) that:
“The principal question in this appeal is whether the Criminal Code provides that Person A is guilty of committing the offence of incitement if they urge Person B (or persons generally) to procure Person C to commit an offence.”
After reviewing the statutory framework (at [40]-[46]) and the legislative history of the Criminal Code (Cth), upon which the ACT’s Criminal Code was based (at [47]-[53]), the plurality held (at [63]) that:
“… Under the Criminal Code, there is no offence of incitement to incite, and procurement (s 45) is not a discrete offence. The legislative intention is not to capture conduct that amounts to either incitement to incite or incitement to procure.”
Furthermore, the plurality observed (at [8]) that any gap or omission in the Criminal Code was ultimately a matter for the ACT’s legislature, stating that:
“… If that is a gap or omission in the Criminal Code, that gap or omission cannot be filled or resolved by resort to the text or structure of the Criminal Code or its legislative history. If the legislature wishes incitement to procure to be a discrete offence under the Criminal Code (and, given the serious nature of the conduct, that is an available view), then that is a matter for the legislature to consider; and it is for the legislature, if appropriate, to expressly provide for that offence.”
Read the decision on the High Court of Australia website.
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| The Queen v Dookheea [2017] HCA 36
13 September 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Edelman JJ
In brief: The High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Victoria, holding that the trial judge had not erred in giving a direction to the jury concerning the criminal standard of proof.
Relevantly, in the proceedings at first instance, the trial judge directed the jury that the Crown had to satisfy the jury of the respondent's guilt "not beyond any doubt, but beyond reasonable doubt” (at [16]). In the appeal proceedings before the Victorian Court of Appeal, the Court of Appeal held that the trial judge had erred in making that direction (at [20]).
In the present appeal proceedings, the Court considered (at [23]-[28]) the historical basis for the judicial restraint towards defining or limiting the expression “beyond reasonable doubt”, observing (at [24]) that (footnotes omitted):
“Historically, the notion that it is undesirable for a trial judge to attempt to explain to the jury what is meant by "beyond reasonable doubt" took root at a time when it was conceived that the expression "reasonable doubt" was "a well understood expression". It was considered that it was dangerous for a trial judge to attempt "to define with precision a term which is in ordinary and common use with relation to this subject matter”.”
Following an interesting discussion concerning the origins and development of the standard of proof in criminal cases, spanning 800 years of English legal history, (at [31]-[34]), the Court held (at [37]) that (footnotes omitted)
“[37] … [I]t is generally speaking undesirable for a trial judge to contrast reasonable doubt with any doubt. But, for the reasons already given, in point of principle it is not wrong to notice the distinction; and, therefore, as a matter of authority, it is not necessarily determinative of an appeal against conviction that a trial judge may for one reason or another happen to do so. When and if a trial judge does mention the distinction, the question is whether the words spoken in terms of the record of the summing up are such that the jury would have derived a false perception of the basis for deciding whether the Crown has proved its case.”
Applying these principles to the present case, the Court held (at [39]) that the jury had not been misled, stating:
“… There can be no doubt that the jury would clearly have understood that it was up to them to decide whether there was what they considered to be a reasonable doubt as to Dookheea's guilt and that, if there were, they were bound to acquit him.”
Read the decision on the High Court of Australia website.
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| Chiro v The Queen [2017] HCA 37
13 October 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Edelman JJ
In brief: The High Court, by majority, allowed an appeal from the South Australian Court of Criminal Appeal, which concerned the proper basis on which to sentence a person under s 50(1) of the Criminal Law Consolidation Act 1935 (SA). Section 50(1) relevantly provides that:
“Persistent sexual exploitation of a child
(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.”
The majority (Kiefel CJ, Keane and Nettle JJ, Bell J agreeing) held (at [1]) that, in circumstances where an accused is tried before a judge and jury on a count of “[p]ersistent sexual exploitation of a child” contrary to s 50(1):
“[The] judge should not request the jury to return a special verdict but, if the jury returns a general verdict of guilty, the judge should request that the jury identify the underlying acts of sexual exploitation that were found to be proved unless it is otherwise apparent to the judge which acts of sexual exploitation the jury found to be proved.”
Read the decision on the High Court of Australia website.
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| Hamra v The Queen [2017] HCA 38
13 September 2017 - Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
In brief: The High Court unanimously dismissed an appeal from the South Australian Court of Criminal Appeal, which concerned the particulars required to establish an offence under s 50(1) of the Criminal Law Consolidation Act 1935 (SA). Section 50(1) relevantly provides that:
“Persistent sexual exploitation of a child
(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.”
The Court held (at [28]) that, although s 50(1) requires the tribunal of fact to identify two or more acts of sexual exploitation, proof of the offence does not require evidence which allows acts of sexual exploitation to be delineated by reference to differentiating circumstances. The Court stated:
“[28] … Neither the common law nor s 50 of the Criminal Law Consolidation Act precludes a judge or jury from deducing a conclusion by simple and obvious logic, provided, of course, that the members of the jury reach the conclusion as to the same two or more acts unanimously, or by a statutory majority where a majority verdict is permitted.”
Read the decision on the High Court of Australia website.
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| | DJ Singh v DH Singh and Others [2017] NSWCA 234
15 September 2017 - Gleeson JA
In brief: The Court of Appeal summarised (at [28]-[30]) the principles to be applied when exercising the power to grant a stay pending an appeal, holding:
“[28] The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (Kalifair) (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20].1
[29] The successful party is prima facie entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal, and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds; or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381 at 385 [15].
[30] It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [2]. That invites consideration of two matters. First, whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies: Kalifair at [18]; Vaughan v Dawson [2008] NSWCA 169 at [17] (Campbell JA).”
Relevantly, s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) provides the Tribunal with the power to stay proceedings in the following circumstances:
“The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.”
Read the decision on the NSW Caselaw website.
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| | Tim Lawson Bulk Cartage Pty Ltd v Warwick Petersen t/as Riverina Truck Electrics [2017] NSWSC 1131
31 August 2017 - Davies J
In brief: The Supreme Court quashed a decision from the Local Court, holding that the Magistrate’s failure to consider the plaintiff’s written submissions at first instance amounted to a denial of procedural fairness.
The Court held that a failure to afford a party with a fair opportunity to be heard may amount to a denial of procedural fairness:
“[21] In J v Lieschke (1987) 162 CLR 447 Brennan J said (at 462):
The right to be heard arises chiefly from the consideration that a person's interests are apt to be affected if an adverse decision is made, whatever issues of fact are relevant to the making of the decision.
[22] In Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Gageler and Gordon JJ made reference to what Gleeson CJ had said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 that the concern of procedural fairness is to “avoid practical injustice”. Their Honours went on to say:
[60] Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.”
The defendant submitted that the plaintiff had not been denied procedural fairness on the basis that the plaintiff had been given an opportunity to put on written submissions, but did so late and without and seeking an extension of time (at [23]). The Court rejected that submission, holding that:
“[24] … The first point may have a more solid arguable basis if the Plaintiff had not bothered at all to lodge submissions with the Magistrate. All that happened was that the Plaintiff was late in lodging its submissions, perhaps partly because the Defendant was late in lodging his submissions.
[25] Although the High Court in WZARH, following a number of earlier decisions, suggested that reference to the concept of legitimate expectation might well distract from the real question concerning procedural unfairness (see at [28]-[30] and [61]) the judgment of Gageler and Gordon JJ at [61] said that legitimate expectation was relevant only so far as it bears on the question of the opportunity that a decision-maker ought fairly to have given to a party. They quoted what Gleeson CJ had said in Lam at [34]:
[T]he creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
[26] The matter is relevant here because the Magistrate had directed that written submissions should be filed with the Court, and the Plaintiff did precisely that. No guillotine order was imposed on the dates for the lodgement of those submissions (cf. Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (Court of Appeal, 8 April 1993, Unrep)), and the reasonable expectation from the making of the orders and even the late compliance with them was that the Plaintiff would be heard by having those submissions considered by the Magistrate.”
Read the decision on the NSW Caselaw website.
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