Admin 7

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A s h v i n R a m g o o l a m P a g e |1

NATURE OF PROCEDURALFAIRNESS

Rules of procedural fairnessregulate actual conduct of the

decision-maker, while othergrounds of judicial review (eg.irrelevant consideration, act forimproper purpose) regulate the

process of reasoning. Whether judicial review is available

for breach of procedural fairness (inparticular, the hearing rule) isapproached through a 2-stageanalysis.

Value of Procedural Fairness

Procedural fairness is valuablebecause of: Instrumental importance: fair

procedures help achieve thepurposes of substantiverules/principles achieve theright outcome.

Intrinsic benefits: participation, justice is seen to be done, equaltreatment, psychologicalcontributions, democratic, gives

people respect & dignity. Rules of PF create tension between

administrative efficiency, andfairness to the Pl. The moreprocedures required, the moredifficulty to the administrator (more“red light”).

1) WHEN DOES PROCEDURALFAIRNESS APPLY? (SCOPE)

Kioa v West : Procedural fairness

applies to an administrativedecision which has a direct &immediate effect on rights,interests or legitimate interests of an individuals; subject to clearcontrary statutory intent.

If there is sufficient interest forstanding, then usually proceduralfairness applies (Bropho).

“Direct & immediate effect”

This means individualised decision-

making. The decision must beabout individuals. Broad, high-level

policy decisions do not have anindividualised effect. So procedural fairness can only

be implied if the decision affectsan individual’s interest in a way

substantially different to theway it affects the public at large. Eg. SA v O’Shea: Even though

the decision not to release asex-offender was in the publicinterest, and was thus a highly“political” decision, it includedconsiderations personal toO’Shea (ie. the Parole Board’s

report on him) proceduralfairness applied.

Salemi: The decision must directly

affect the person individually, notsimply as a member of the public orclass of public. An administrativedecision of the latter kind is a“policy” or “political” decision notsubject to judicial review.

Kioa: Decisions which onlyindirectly affect therights/interests/expectations of individuals include: Decision to impose a tax;

Decision to impose generalcharge for services.

The test for procedural fairness isnarrower than the test for standing: WA v Bropho: An interest which

attracts principles of natural justice will always give standing;but a grievance that givesstanding does not alwaysinvolve a legitimate expectationthat is protected by principles of natural justice.

Representative standing cannotbe translated into application of procedural fairness.

[Justification? If a decision affects alarge number of people, it would beimpractical to give each a hearing]

“Rights, interests or legitimateinterests”

Kioa v West (Mason): “Rights” means legal rights (Eg.

proprietary right).

A d m i n i s t r a t i ve L a w




“Interest” is very broad (Eg:personal liberty, status,preservation of livelihood &reputation, financial interest).Same as the standing test.

“Legitimate expectation” fillsthe situation where the decisiondoes not deprive of a legal rightor interest (eg. renewal of licence) procedural fairnessapplies even if the decisiontakes away something you havenot got, as long as youlegitimately expected to get it.

Contrary statutory intention

Cases show that judges arereluctant to say that Parliament didnot intend procedural fairness to

apply a shift in focus to content of procedural fairness (Kioa v West ). Ainsworth v CJC: Could not use

expressio unius maxim toimpliedly exclude proceduralfairness.

Exp Miah: Specification of certain procedures (“Code”) &

right of appeal to Tribunal, wereinsufficient to excludeprocedural fairness.

Kioa v West : A strong manifestationof contrary statutory intention isneeded to exclude proceduralfairness. Procedural fairness may be

excluded where its applicationwould be inconsistent with thestatute’s operation or purposes.

But the court allows Parliament toexclude procedural fairnessexpressly & clearly (eg. Migration

Act successfully removedprocedural fairness).

2) WHAT DOES PROCEDURALFAIRNESS REQUIRE?(CONTENT)

A) Hearing rule: Fair Hearing

Procedural fairness requires a “fair

hearing”. A “fair hearing” may require:

Disclosure of the adversematerial;

Opportunity to rebut adverseallegations;

Adequate notice (More time);

Oral hearing; Legal representation;

Cross-examination of adversewitnesses.

Notice of adverse informationinfluencing decision making

Kioa v West : The administratormust notify the affected personabout adverse information in theadministrator’s mind, that is

prejudicial to the person’s interests(including reasons). How much the person needs to know, depends. Put another way, the

administrator must give the Pl areasonable understanding of theadverse allegations which couldinfluence its decision-making.

Kioa v West : Even adverseinformation that is notcrucial/decisive of the decision,must be disclosed to the Pl (if it’s in

the decision-maker’s mind). *Information that the applicant

was consorting illegalimmigrants was not decisive of the decision to deport (b/c not inthe reasons given).

Held: K should have theopportunity to reply to theprejudicial allegations denialof PF.

Exp Miah: Even adverse information

that is in the public domain, mustbe disclosed (if it’s in the decision-maker’s mind).

Reasonable opportunity to preparedefence

Exp Polemis: The affected personmust be given a reasonableopportunity to reply to the casemade against him. What is areasonable opportunity, dependson what his argument is.

Kioa v West; Russell v Duke of Norfolk : The procedures required





depends on the circumstances of the particular case (ie. are flexible).Relevant circumstances include:

The nature of the inquiry;

The subject-matter; and

The rules under which thedecision-maker is acting.

Pl bears the burden of proving thatthe decision was unfair because itdid not involve a procedurerequired by fairness.

Test is to ask: What is Pl’s defence argument

to the allegation? Possibleresponses:

Wrong facts: “The allegedevent never happened”.

Wrong interpretation of statute: “The allegation is

false/mistaken” need to X-examine.

Poor credibility: “The allegersare biased or dislike me” need to X-examine.

What procedures are necessaryin order to make Pl’s case?Why?

Were those procedures adopted

in the hearing? No denial of PF.

B) Bias rule: Impartial decision-making

Basic rule: The decision-makermust have an impartial mind opento persuasion during the hearing,actually & in appearance. It applies to judges, and also

administrators (but with less

stringency). Rationale of bias rule = to

maintain public confidence inthe integrity of decision-makers.

The rule against bias is flexible(because of “reasonable” inostensible bias test).

3 categories of bias: Actual bias,Deemed bias, Ostensible bias.

Actual Bias

Courts are reluctant to find actualbias:

because it destroys publicconfidence in the justice system,and the whole point of the biasrule is to make the decision-maker look trustworthy; and

NOT because it is hard todetermine the subjective stateof mind of the decision-maker(we do it in criminal law all thetime).

Deemed Bias

Dimes v Grand Junction Canal:Where the decision-maker has adirect financial interest in theoutcome of the decision, he isdeemed to be biased.

*Court of Chancery affirmedorders made in favour of a canalcompany, in which the LordChancellor (who sat on theappeal) held shares.

*There was no evidence that theChancellor’s decision wasactually affected by theshareholding.

The HOL set aside the decree. Ebner v OTB: If the decision has no

effect on the financial interest of the decision-maker, then there is nodeemed bias. (The outcome of the decision

would not affect the price of theshares that the judge owned no deemed bias.)

Apprehended Bias

Livesey v NSWBA: There isostensible bias if a fair-mindedobserver would reasonablyapprehend that the judge is notbringing an impartial mind to theissue.

Grounds for a reasonableapprehension of bias include: The decision-maker has

previously expressed viewsabout a case, or announcespreliminary views during a case(Livesey v NSWBA) [ie. hasprejudged the case];





The decision-maker conductedthe matter in an unjudicial way(Damjanovic v Sharpe Hume);

The decision-maker has a closerelationship with a party; and

The decision-maker acts asprosecutor & judge (Stollery v Greyhound Racing).

Test = [Given the remarks made,relationship etc] would a fair-minded observer reasonably thinkthat there might be bias?Preconceptions:

Livesey v NSWBA: A fair-mindedobserver might entertain areasonable apprehension of bias byreason of prejudgment, if a judge

hears a case at 1st instance after hehas, in a previous case, expressedclear views about: a question of fact which

constitutes a live & significantissue in the subsequent case; or

the credit of a witness whoseevidence is of significance onsuch a question of fact.

Vakauta v Kelly : Ostensible biasdoes not exist merely because a

judge has preconceived viewsabout the reliability of the evidenceof a particular medical witness,even if the judge discloses theexistence of such views in thecourse of dialogue.

Distinguish preconceived viewsabout reliability of medicalwitnesses, from preconceivedviews about credibility of non-expert witnesses.

2 exceptions to the ostensible

bias rule: Waiver of right to object

Vakauta v Kelly : Where a partyis aware of a right to object ongrounds of apprehended bias,but fails to do so prior to thedecision, then the party haswaived that right to object.(can’t wait for final judgmentand then attack it)

Good or bad rule ? Depends on

whether it enhances thepurpose of the bias rule (ie.public confidence).

It’s Good because: If counselis forced to object during thetrial, the judge can correcthimself by declaring thatalthough he has

preconceptions of thewitnesses, he is open topersuasion on the evidence(Vakauta v Kelly ). Also savestime. Thus, improves publicconfidence.

It’s Bad because: The biasrule (esp. ostensible bias) isfor the benefit of thecommunity, not just the

individual individualshould not be able to waive

away the community’sinterest in the bias. Also,waiver defeats the purposeof a hearing, which issupposed to be free frombias in all cases. Thus,damages public confidence.

Rule of Necessity Laws v ABT : Because statute

can override common law, thebias rule cannot:

Stop a body set up to dostatutory functions fromperforming those functions;or

Frustrate the intendedoperation of a statute.

Deane: But the rule does notapply where its applicationwould involve positive &substantial injustice; and when itapplies, the rule does so only tothe extent that necessity

justifies. Usually no issue of necessity,

because a body has lots of delegates, and there arechanges in members over time.

HEARING CASES

Kioa v West

Scope & content of ProceduralFairness.

*K applied for an extension to histemporary entry permit.





*After the permit expired, K remained in Australia allegedlybecause his home country wasdevastated by a cyclone.

*Minister decided to refuse K’s

applications for entry permits,because of certain allegationsabout K that were not put to K.

*K argued that the Minister’sdecision to refuse his applicationbreached procedural fairness.Threshold:

[The deportation order clearlyaffected the interest of K (personalliberty) in an individualised way.]

The Migration Act as amendedrequired the administrator to give

reasons for his decision statutedid not displace the obligation tocomply with procedural fairnessrequirements.Content:

Procedural fairness requires theadministrator to bring to a person’sattention the critical factor onwhich the admin decision is likely toturn, so that he may have anopportunity of dealing with it.

Procedural fairness demands that K should have the opportunity of replying to allegations which wereextremely prejudicial to K. Therewere 2 such matters:

The comment that: had K beengenuine, he would have soughta decision on his applicationrather than change his addresswithout notifying the Dept.

The comment that: K’s concernfor illegal immigrants & his

active involvement with othersseeking to circumventAustralia’s immigration laws,must be a source of concern.

The other materials which K complained of consist of policy &undisputed statements, which doesnot call for a chance to reply.

Appeal allowed, deportationquashed order.

Obiter: In the case of a prohibited

immigrant who intends to remainwithout lawful right and evades

authorities, procedural fairnessdoes not require giving of advancenotice of the deportation order.

Ainsworth v Criminal Justice

CommissionContrary statutory intention(Scope). *CJC’s report criticised Ainsworth’s

conduct, and recommended againstAinsworth participating in thegaming machine industry.

*Ainsworth group was not given anopportunity to be heard inopposition to the report’srecommendation.

*S 3.21(2)(a) required CJC to actfairly in “proceedings”.

*Appellants commencedproceedings alleging breach of procedural fairness, arguing that:

the Act obliged the CJC tocomply with procedural fairness;or

the duty arose under thegeneral law, and was notexcluded by the Act.

Held:

The report adversely affectedreputation [a sufficient interest toattract procedural fairness] of anindividual [Ainsworth] in a direct &

immediate way prima facie,procedural fairness applies. Appellant’s argument #1:“Statute requires fairness in

“proceedings” excludesfairness if no “proceeding”,and reporting is not a

“proceeding”” Appellants argued the expressio

unius est exclusio alterius maxim: If a statute specifically requiresfairness in 1 area, it does notrequire it in all other areas.

The CJC’s functions &responsibilities are so importantthat “proceedings” includes anystep, no matter how informal, inrelation to its functions &

responsibilities “proceedings”

includes reporting s 3.21(2)(a)





requires procedural fairness for thereport.

Even if “proceedings” does notcover any step, procedural fairnessis presumed by common law to

apply in the situations notspecifically dealt with by the Act. The expressio maxim does not

displace this presumption, becausethe Commission’s nature & itsfunctions & responsibilities are suchthat Parliament did not intend it toact unfairly. Appellant’s argument #2:“Procedural fairness not deniedin the entire process”

Appellants argued that although

CJC was not procedurally fair, thecommittee could intervene to

ensure fairness in the process’sentirety, there is fairness.

Principle: Where a decision-makingprocess involves different steps,procedural fairness is satisfied if theentire process entails proceduralfairness.

But the CJC & Committee had

separate processes no guarantee

that the Committee will interveneto correct CJC’s unfairness CJC’sunfairness = denial of proceduralfairness.

Anyway, in practice: the report isalready publicly available &appellants’ reputation has beendamaged denial of proceduralfairness.

Annamunthodo v OilfieldsWorkers’ Trade Union

No notice. *Pl was charged with offences

against certain union rules, underwhich Pl could only be fined, butnot expelled from the union.

*Pl was given a hearing, but hechose not to attend the adjournedhearing.

*At the adjourned hearing, thecouncil expelled him under a rulehe had NOT been charged under.

[The decision to expel directly &immediately affected an interest,

being the union membershipprocedural fairness applied. Issue =content of it]

Since Pl could not be expected toknow that the expulsion rule would

be used, fairness requires that thePl be given notice that theexpulsion rule might be used toexpel him.

When the Council at the adjournedhearing desired to proceed underthe expulsion rule, they shouldhave adjourned the hearing againso as to give him notice of the freshcharge. They failed to do so natural justice breached.

Pl’s appealing of the expulsion was

not affirmance of the expulsion. Hecould still complain of a want of natural justice.

Ex parte Polemis

PF required more time to prepare.

*Pl had notice that he was chargedfor oil polluting.

*Pl was given only 5.5 hours toprepare his case. Judges refused hisadjournment application.

*Magistrate heard the charge &found him guilty.

The judges’ refusal of adjournmentwas a breach of natural justice: Plwas not given a reasonableopportunity to prepare his defence[that the pollution was not from hisship], because: He had no time to prepare

supporting evidence (eg. oilsamples, witnesses, state of

weather); He had no time to read theprosecutor’s report of samples;

He had poor English. Irrelevant that, in hindsight , there

was no merit in Pl’s case. If procedural fairness requires

adjournment, then it must be given,even if Pl was sailing away that dayand may not return. Anyway, the

judges could have got the Pl toplace a deposit.





Chen Zhen Zi v Minister forImmigration & Ethnic Affairs

PF did not require oral hearing inall cases.

*Refugee = person who has a well-

founded fear of persecution, isoutside the country of hisnationality, and is unable to seekprotection in that country.

*An applicant has a right to have aprimary decision on refugee statusreviewed by the Refugee StatusReview Committee.

*Pl argued that procedural fairnessrequired an oral interview in everyRSRC review, because: 1) Refugee status contained

subjective element (“fear”) &objective element (“well-founded”). Must interview toassess subjective element.

2) Process of determiningrefugee status involves

judgments on political, religious,racial & human rights situationin a foreign nation. The reviewofficer could misunderstandthese.

3) Applicant may need to rely oninterpreter, and may not give afull written account of their casein fear of it being disclosed tohis country

4) A correct decision isimportant to applicant & family.

5) No oral hearing meant thatthe review officer cannot testthe applicant’s credibility.

Not disputed that rules of PFapplied.

The Court held that the Pl’sarguments only required oralhearings in some, not all, cases:

1) Don’t need interview if objective element not satisfiedalready.

2) Misunderstanding will notnecessarily be eliminated byoral interview.

3) Some applicants have anadequate command of English.

Also, the same apprehension &

mistrust (if any) will still exist inoral interview.

4) Mere importance does notcompel an oral interview.

5) In some cases, credibility is

not an issue. SO – Rules of natural justice do not

require an oral hearing in everyapplication for refugee status.However, they may require an oralhearing in a particular case, where: **credibility is in issue [eg. if

applicant asserts factual well-known info, then credibility is

not in issue oral hearing notneeded];

the applicant is disadvantaged

by being limited to submissionsin writing.

A green light decision. Court issympathetic to the administrator.

White v Ryde Municipal Council

PF did not require legalrepresentation at hearing.

*Neighbours complained of Plkeeping 30 cats.

*Council recommended to prohibit

Pl from keeping more than 2 cats ata time.

*Pl was informed that he had 4days to represent to the committeeas to why the resolution should notbe given effect.

*Pl requested to have his lawyerpresent at his hearing, but wasrefused.

*At Pl’s hearing, Pl alleged thatthere were no unsanitaryconditions, he was only keeping thecats temporarily, and they killedrats.

*Council confirmed its decision. Pl’s hearing was fair. Here, fairness

did not require legal representationat the hearing, because all that wasinvolved were simple factualmatters which could be statedwithout skills of a trained advocate: There were no legal issues [eg.

difficult statutory interpretation]

involved; Pl was facing no charge;





There were no witnesses tocross-examine.

O’Rourke v Miller

PF did not require cross-

examination or confrontation. *2 members of public complained

that a probationary constable (Pl)on duty was drunk.

*Commissioner put the allegationsto Pl, who replied that thewitnesses were wrong.

*Pl wanted to confront/cross-examine the 2 witnesses, butCommissioner did not allow it.

*Commissioner decided (withpower) to sack Pl anyway.

Pl, as probationary constable, had alegitimate expectation that his

appointment would be confirmed the decision to terminate hisappointment affected his legitimateexpectation procedural fairnessapplied.

Pl was told about what was allegedagainst him, and was given a fair

opportunity to state his defence procedurally fair.

Procedural fairness did NOT extendto require Commissioner to allow Plto confront/cross-examine thewitnesses, because: **There was no reason why the

witnesses (who were strangersto Pl) concocted their story;

Some of the Pl’s statements lentcredence to that story;

It is very important to the publicthat persons whose character is

doubtful, should be kept out of the police force. [Implicit reasoning could be: If

require the witnesses to be cross-examined, then it deters peoplefrom reporting police misconduct.We don’t want this PF does notallow cross-examination]

[Can criticise this decision: Thecredibility of witnesses are in issue

cross-examination is necessary.But can argue that credibility wasnot really in issue, because therewas no real issue of fabrication.

Anyway, the facts are special(importance of police).]

National Companies and SecuritiesCommission v News

CorporationPF did not require trialprocedures. *NCSC held a “hearing” to

investigate its suspicion that NewsCorp committed certain offences.Only if the investigation showedsomething wrong, would NCSClodge proceedings in the SupremeCourt.

*s 38(1): At a hearing: (a) the proceedings shall be

conducted with as little formality& technicality, and with as muchexpediency, as possible;

(b) the Commission is not boundby rules of evidence;

(c) the Commission may permita person to intervene;

(d) the Commission shallobserve rules of natural justice.

*The Commission proposed toconduct the hearing as follows:

Commission can summon anywitness;

Each witness may have legalrepresentation duringexamination, who may re-examine;

Each witness will be providedwith a transcript of his evidence;

If the Commission proposes topublish any matter adverse toany person, it will afford thatperson an opportunity to beheard & call evidence on suchmatter before publication.

*The Commission disallowed News’request for trial procedures: News & its legal representatives

to be present throughout thewhole hearing;

News to intervene inproceedings;

Its lawyer to cross-examinewitnesses at hearing;

News to call evidence in reply;





News to make submissions tothe Commission before it makesany findings.

Statute requires trialprocedures?

The Commission’s investigation willcomply with rules of natural justice,if it proceeds to: Allow each witness called to give

evidence to be legallyrepresented, with freedom forthat representative to examinethe witness;

Provide a transcript of hisevidence.

Procedural fairness does NOTrequire the hearing to be treated as

a court trial, because: “Hearing” in the statute is not

used in a technical sense thatrequires court trial procedures;it is an ordinary word whichmust take its meaning from itscontext in the Act.

The nature of the investigationis such that:

There is no charge or directlegal consequence;

No issue can be determined; The hearing is designed to

discover facts; and

The procedure is notadversarial, but inquisitorial.

The statutory frameworkrecognises need for expedition.

News Corp can cross-examine &call evidence if proceedings aresubsequently brought in theSupreme Court.

At the hearing, the NTSC isunlikely to fail to call NewsCorp’s witnesses case willprobably be made known duringthe hearing.

Ex Parte Miah

Exclusion/modification of procedural obligations by statute:How clear contrary statutoryintention has to be.

*M, a Bangladesh national, applied

for a protection visa on the basisthat he was a “refugee”.

*After the date of application, thedelegate received new informationthat the Bangladesh governmentchanged. The delegate thought thatthe ousting of the BNP meant

people were more tolerant delegate considered it decisiveagainst M’s application.

*Delegate did not inform M of thenew material and give him anopportunity to respond to it beforedeciding to refuse.Procedural fairness applied?

Legislation was not intended toexclude common law proceduralfairness requirements, because: there are no clear words to that

effect; the subject matter of the Act; the Act implemented

international obligations.Content of procedural fairnessrequirements?Def’s 1st argument

Def argued that use of the word“Code” in the heading of subdiv ABexcludes any proceduralfairness requirements outside

subdiv AB. But this is a weak reason. Eg:

Parliament could not haveintended to excludebias/corruption rules.

Examples of material that wouldNOT require comment by theapplicant include:

Non-adverse countryinformation;

Favourable/corroborativeinformation in the publicdomain; and

Information based oncircumstances described in theapplication.

An applicant must be given anopportunity to comment where thedelegate proposes to use newmaterial (of which the applicantmay be unaware) and which couldbe decisive against the application;

This disclosure is stronger where

the material concernscircumstances that have





changed since application date,and is being used afterconsiderable delay.

It is even stronger if the materialis equivocal or contains info that

the applicant could notreasonably have expected to beused.

Here, the new information wasdecisive of the claim, and wastotally new, was considered 13mths after date of application, andM could not have reasonablyexpected this information to beused against him (since bothparties were arguably unwilling tooffer M protection). The delegate

did not inform M he would use theelection results, nor offer M anopportunity to comment breachof procedural fairness.Def’s 2nd argument

Def argued that because the Actgave a right to full de novoreview by the Tribunal, Parliamentintended to limit requirements of natural justice at the stage where adelegate is examining the

application. Factors relevant in determining

whether a right to full reviewexcludes/limits rules of natural

justice: Preliminary/Final original

decision: The more final thedecision is, the more likelynatural justice applies. Here, the decision was final

natural justice. Public/Private original

decision: If private decision, itis less likely that natural justiceapplies (because reputation notaffected as much). Here, the decision was

private no natural justice. Formalities required for

original decision. Here, the requirement to

give reasons made it harderto say that an appeal right

was intended to limit natural

justice requirements natural justice.

Urgency of original decision. Here, there was no urgency

natural justice.

Judicial/Internal appellatebody: If the appellate body is acourt, it is easier to infer thatthe right to appeal was intendedto limit/exclude rules of natural

justice at the earlier level. Here, the appellate body is a

Tribunal natural justice. De novo/Limited appeal: If de

novo, easier to infer that natural justice was intended to beexcluded/limited. Here, there was de novo

no natural justice. Nature of interest;

Consequences for individual,Subject matter of legislation. Here, nature of interest =

personal security;Consequences = seriousthreats; Subject matter =international obligationstowards vulnerable citizens

natural justice. Balancing these factors, the right to

appeal to the Tribunal is NOTintended to exclude/limit naturalfairness.

Denial of procedural fairness isgrounds for relief under s 75(v).

BIAS CASES

Laws v Australian BroadcastingTribunal

No ostensible bias(prejudgement); necessity.

*In Laws’ broadcast, he criticisedexpenditure on Aboriginal welfare.Complaints were made to the ABT.

*Relevant provisions: S 119(1) Broadcasting Act :

Where a person broadcasts aprogram in respect of which theprogram standards were notcomplied with, the Tribunal may,by direction, prohibit or restrict





the person’s presentation of broadcasts.

S 119(2) required the Tribunal tocall upon the person to showcause why it should not act

under subs (1) before so acting. S 17: A pre-condition to theexercise of s 119 powers is theholding of an inquiry into theproposed exercise of powers.

*3 Tribunal members discussed thecomplaints with the manager &director of 2GB, but not Laws.

*Decision 1: 3 Tribunal membersdecided that the broadcasting of Laws’ programme breached a racialvilification standard.

*Decision 2: The Tribunal decidedto hold an inquiry (required by s 17)to decide whether there is anybreach of the standard, and if so,what the penalty should be under s119.

*A Tribunal representative gave aradio interview, in which sherepeated the substance of the

Tribunal’s first decision.

*Laws sued the Tribunal and the

representative for defamationarising out of the interview.

*In its defence, the Tribunalpleaded that what was said in theinterview was of substantial truth &related to a matter of publicinterest.

*Laws argued that therepresentative’s statements reflectthe corporate view of the Tribunalmembers, and that – in filing &maintaining its defences to theaction – the Tribunal members haveasserted that Laws contravened

RPS 3 all Tribunal members aredisqualified from participating inany future inquiry as to Laws’ non-compliance.Decision 1 valid?

The Tribunal was only authorised toconduct a preliminary investigationto decide whether it should hold aformal inquiry.

The 3 members went beyond this,by deciding the matter in strong

terms ultra vires decision. [Laws himself was not given a

chance to talk to the Tribunal about

the complaints denial of PF]Decision 1 disqualified the 3ABT members from inquiry?

The 3 ABT members’ preliminaryinvestigation amounted to positivefindings of contraventions of theradio standard, which would lead anobjective bystander to reasonablyapprehend that they had pre-determined whether Laws hadfailed to comply with the standard

the 3 members were disqualified from participating in the inquiry.Interview disqualified all ABTmembers from inquiry?

The interview & its content was notnecessarily done on behalf of theindividual members not allmembers are disqualified.Defence disqualified all ABTmembers from inquiry?

Actual bias? No, the defences fileddo not constitute assertions that

the matters pleaded aretrue/correct.

Deemed bias? If the actionsucceeds, the government willensure that the Tribunal has funds

to meet the verdict an observerwill not suppose that the memberswho participate in the inquiry wouldhave any material interest inresolving the relevant issues.

Apprehended bias? A fair-mindedobserver would know that fileddefences do NOT amount toassertions of belief & thereforeprejudgement observer wouldconclude that the other memberswould bring an unprejudiced &

impartial mind to the inquiry noapprehended bias. [Criticism: But it’s unsatisfactory

that a fair-minded observerwould know that defences arenot assertions of belief (too

technical). Also, defences should





be assertions of truth/correctness]

Necessity: Even if apprehendedbias attaches to all members, thenecessity rule allows a member to

participate in inquiry. So – only the 3 members aredisqualified from the inquiry.

Vakauta v Kelly

Ostensible bias (prejudgement);waiver. *During a trial, the judge criticised

evidence given by the Def’smedical witnesses in previouscases, including:

“that unholy trinity”;

the GIO’s “usual panel of doctors who think you can do afull week’s work without anyarms or legs”;

the doctors’ “views are almostinevitably slanted in favour of the GIO by whom they havebeen retained, consciously orunconsciously”.

*Def’s counsel did not object to theremarks.

*In a reserved judgment, the judge: said that the evidence of the

doctor was “as negative as italways seems to be – and basedas usual upon his non-acceptance of the genuinenessof any plaintiff’s complaints of pain”; and

prefaced concessions made bythe doctor with “Even Dr Lawsonthought”.

During the trial Ostensible bias? Yes. The remarks

show an adverse attitude to the

expert witnesses would have leda fair-minded observer toreasonably apprehend that the

judge might not have anunprejudiced mind.

But Dawson – no apprehensivebias because alerting the partiesto a preconception assists animpartial approach. The judge

can still assess the evidencefairly.

Waiver? By not objecting to the judge’s remarks, the Def waived any right to appeal against anadverse decision on the ground of what had been said at the hearing.

Reserved judgement Ostensible bias? The observationsmade about the doctor in the

judgement (in the context of remarks made during the trial)amounted to ostensible bias,because they would lead areasonable or fair-minded observerto conclude that the judge washeavily influenced by views he hadformed on other occasions ratherthan by an assessment based on

the case in hand. Waiver? No. Since the judgment

was reserved, there was noopportunity for Def to object to itscontents.

Damjanovic v Sharpe Hume & Co

Ostensible bias (prejudgement &other conduct).

*D (Pl) sued for forgery & improperpayment of a cheque.

*Vukic (who had no legalqualifications) represented D, whoknew little English.

*Before evidence in the forgeryproceedings was completed, GibbDCJ decided the case based on theimproper payment of the cheque.

*Her Honour decided not to believePl in that proceeding.

A reasonable bystander would haveapprehended bias, because: The judge stated in her

judgment that she disbelieved Don the basis of evidence he gavenot only in the present case, butin the other cases ;[prejudgement] and

The judge fell short of acceptable judicial behaviour, bysaying “shut up”; sarcasticallyreferring to Ms Vukic’s“spectacular silence”; andsarcastically & critically

commenting “how veryconvenient”. [other conduct]





Waiver? No, because D & Ms Vukicdid not know of their right to object.Anyway, the judge revived thematter in her judgement in thefindings she made about D’s

credibility in the forgery cases. Order: A new trial before a judge

other than Gibb DCJ.


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