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Crown Solicitor's Office

Procedural fairness update

Joanna Davidson, Barrister, Sixth Floor Selborne Wentworth Chambers

Extracted summary of a seminar dated 20 August 2014

The NSW Court of Appeal has determined approximately 38 administrative law cases in the last year.  Procedural fairness arose in about 16 of those. Despite the regularity with which it is raised in litigation, it is difficult to generalise about the content of the obligation to accord procedural fairness, given the flexible and context-driven nature of its requirements.

This extract will examine four cases concerning the hearing rule aspect of procedural fairness. At a high level of generality, the hearing rule requires a decision-maker to hear a person before making a decision adversely affecting the person's interests.

A repeated theme of this year's cases, picking up on Gleeson CJ's remark in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] is that  "[f]airness is not an abstract concept.  It is essentially practical.  Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice".  Related to the practical concern of the law in relation to procedural fairness is the proposition that relief from a breach of the requirements of procedural fairness will be refused if there is an incontrovertible fact or point of law providing a discrete basis for a decision, which cannot be affected by the relevant procedural unfairness: see the cases collected by the Court of Appeal in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [42]-[44].

The Court of Appeal applied this proposition as a basis for dismissing one ground of appeal in Bulga Milbrodale.  The alleged breach of procedural fairness in  this case involved a decision by the Chief Judge of the Land and Environment Court ("LEC"), on appeal from a decision of the Planning Assessment Commission, to allow the applicant in the LEC to make an argument that had played no part in its case up to the point of its oral submissions in reply, to refuse to admit further evidence the respondent Minister sought to tender in relation to that argument and to decide the relevant point on a basis that took the respondent by surprise: see at [71]-[85].  The Court of Appeal held there was no denial of procedural fairness, essentially because the additional expert evidence the respondent sought to tender after the applicant made the argument in reply was, in the Court's view, not relevant: it did not respond to the additional issue that had been raised and did not add to the expert's first affidavit or oral evidence: at [109], [112].  In any event, the Court pointed out that the argument that the applicant had embraced late in the course of the hearing was one of five reasons given by his Honour for drawing a conclusion adverse to the Minister about noise conditions of the disputed planning approval.  Even if there had been a breach of procedural fairness, no different result would have ensued if the respondents in the LEC had been allowed to rely upon the rejected evidence on this point: at [118]. 

The most basic requirements of the hearing rule were breached in Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79.  It is relatively unusual to read a case that focuses on the requirements of procedural fairness at such a basic level.  Although the case concerns a court hearing, it is a useful reminder that in order to qualify as a hearing, where a "hearing" of an issue on the merits is required by statute, there must be an opportunity for an applicant to reasonably and fairly advance his or her case.

In a judicial setting, Tobias AJA (Meagher and Emmett JJA agreeing) explained that this required an applicant to be able to tender evidence and make submissions: at [19].  What happened in the District Court in Mr Reznitsky's case did not satisfy those fundamental requirements. 

Mr Reznitsky had appealed to the District Court against three convictions in the Local Court. The hearing of the appeal was fixed for 3 June 2009 and Mr Reznitsky failed to appear.  Mr Reznitsky subsequently made an application under s. 22 of the Crimes (Appeal and Review) Act 2001, which provides for the District Court to set aside the dismissal of an appeal if it is satisfied either that the appellant has shown sufficient cause for the failure to appear, or that it is in the interests of justice for the application to be heard: s. 22(3).  Mr Reznitsky was self-represented when the hearing of the s. 22 application came before Hughes DCJ.  He informed his Honour at the outset that he would require about 20 minutes to make submissions in support of his application.  When the matter was called, Hughes DCJ called on the DPP solicitor rather than the applicant, who was told to sit down: at [23].  His Honour asked the DPP solicitor about the reason Mr Reznitsky did not appear and was informed that Mr Reznitsky had filed a letter in relation to the issue.  Before proceeding any further, his Honour said "[t]his is sort of a raving of some kind of lunatic here, if I might say so": see at [25].  His Honour then asked Mr Reznitsky why he was not present at the appeal.  He cut Mr Reznitsky short and told him to sit down when he attempted to give an explanation, remarking "[t]hat doesn't seem like much of an excuse to me".  After a brief clarification of dates with the DPP solicitor, his Honour stated that he "believed" the DPP solicitor and dismissed the appeal.  When Mr Reznitsky attempted to protest that he had not made his submissions, his Honour said "I don't want to hear you any further" and proceeded to call the next matter. 

The Court of Appeal held there was "no doubt" that this amounted to a "contumelious" denial of procedural fairness: Mr Reznitsky was "simply not heard" and there had been "a gross injustice": at [32], [36].  What had happened did not qualify as a "hearing" at all: Mr Reznitsky was treated in an "arrogant, rude and inappropriate" manner: at [38] and quashed the District Court judge's order.

Notably, the Court criticised the DPP, as a model litigant, for failing to concede that there had been a denial of procedural fairness, and for "defending the indefensible" up to and including the hearing (a breach of procedural fairness was conceded only during the hearing itself, after counsel sought an adjournment to obtain further instructions).  Acting Justice Tobias stated that this failure to concede was "disturbing" because it "involved a waste of this Court's resources and the possible imposition upon the applicant of unnecessary stress and anxiety": at [36].

Another repeated theme in this series of cases is the necessity of ensuring that a person is aware of the critical issue or factor on which an administrative decision is likely to turn, so that the person can have an opportunity to make submissions in relation to it: see eg Kioa v West (1985) 159 CLR 550 at 587 per Mason J (as his Honour then was); Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [81] per McHugh and Gummow JJ. 

In Frost v Kourouche [2014] NSWCA 39, the Court of Appeal considered the content of procedural fairness owed by a review panel reviewing a medical assessment under the Motor Accidents Compensation Act 1999.  Ms Kourouche was a pedestrian injured in a collision with a motor vehicle.  She claimed damages for non-economic loss, including as a result of psychological injury, and was in dispute with the driver's insurer as to the application of      s. 131 of the Motor Accidents Compensation Act 1999.  

That section forbids a court from awarding damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than ten per cent.  On application from the driver's insurer, the proper officer of the Motor Accidents Authority referred the assessor's first instance assessment to a review panel of three assessors.  The reviewing assessors determined that it was necessary for them to examine Ms Kourouche.  The review panel determined that Ms Kourouche had no psychiatric disorder related to the accident and revoked the original certificate.  The review panel's reasons noted that Ms Kourouche's presentation was "characterized by gross exaggeration if not fabrication, to the point where much of the history and presentation is in question", such that no accurate diagnosis or assessment of whole person impairment could be made: see [2014] NSWCA 39 at [19].

Section 61(4) of the Motor Accidents Compensation Act 1999 provides that a court may reject an assessor's certificate on the grounds of denial of procedural fairness in connection with the issue of the certificate, but "only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party".  Ms Kourouche successfully applied to the District Court to reject the certificate on the basis that she was denied procedural fairness by the review panel.  On appeal, consistent with the District Court's reasons, Ms Kourouche argued that because the review panel's finding was "incredible and wholly unforeseen and unexpected", procedural fairness required the panel to issue a warning as to its potential finding, grant an adjournment so that she could obtain further legal advice, and permit her to address the panel on a subsequent occasion: at [30], [34].  The Court of Appeal rejected this argument. 

It was common ground on the hearing of the appeal in Frost v Kourouche that the review panel's powers were to be exercised in a manner that accorded procedural fairness to those whose interests may be adversely affected; and also that the review panel was required to confront Ms Kourouche with inconsistencies and provide her with an opportunity to respond. However, in dismissing the appeal, Leeming JA (Beazley P and Basten JA agreeing) held that procedural fairness did not require the review panel to go any further than this: at [35].

Justice Leeming pointed out that a well-established "complementary proposition" to the requirement (drawn from Kioa v West) to bring a person's attention to the critical issue or factor in the prospective decision is that procedural fairness does not require a decision-maker "to expose his or her thought processes or provisional views for comment before making the decision": Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] per French and Kiefel JJ; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29].  The District Court's attention did not appear to have been drawn to this line of authority: at [38]. 

Emphasising the concern of procedural fairness to avoid practical injustice, Leeming JA explained there had been no practical injustice or absence of a fair hearing, because the possibility of the review panel's adverse conclusion ought not to have taken Ms Kourouche by surprise in circumstances where its decision to re-examine her raised the possibility that some or all of its members might disbelieve her story: at [42].   Nor, conversely, would practical injustice have been avoided if the primary judge's suggestion that Ms Kourouche have a further opportunity to consult her solicitor had been adopted.  The solicitor would not have a transcript of what had taken place at the medical examination, the matter was a medical rather than a legal one and the panel was entitled to apply its own medical expertise.  Before the re-examination, Ms Kourouche had had the opportunity to receive legal advice: at [43]. 

Frost v Kourouche is a good example of the Court of Appeal applying a pragmatic approach to the requirements of procedural fairness, including by considering the counterfactual of what would, or could, have happened if the heightened obligation contended for by the affected party was satisfied.  This is consistent with both the focus on practical injustice in this area of the law, already referred to; and also (less directly) with the remedial approach deployed in the Bulga Milbrodale case.

The extent to which a judge's decision to refuse to grant an unrepresented litigant an adjournment to obtain legal advice may constitute a breach of procedural fairness was considered in Jamal v Director of Public Prosecutions [2013] NSWCA 355.  Mr Jamal was qualified as a legal practitioner in Egypt, who appealed his Local Court conviction for assault to the District Court.  Mr Jamal had been represented in the Local Court but was self-represented on the appeal to the District Court.  He sought prerogative relief from a decision of the District Court to refuse his application for an adjournment to obtain legal representation, made on the second day of the hearing of his appeal, on the basis that that refusal (together with the fact that he was not afforded the assistance of an interpreter on the same hearing day) constituted a breach of procedural fairness. 

The Court of Appeal held there was no breach of procedural fairness, pointing out that the hearing rule of procedural fairness is concerned with providing a person with the opportunity to be heard, but that a party's failure to make proper use of that opportunity cannot be used to support a claim of breach of procedural fairness: at [39].

The Court of Appeal also pointed out that just as there is no general right to legal representation, there is no general test as to whether procedural fairness requires a decision maker to grant an adjournment for a person to obtain legal representation, because each case will depend on its own circumstances. In Mr Jamal's case, there was no error or breach of procedural fairness, considering the timing and context of the adjournment application. 

Some practical reminders

  • Ensure that a person affected is aware of the critical issue or factor on which an administrative decision is likely to turn, so that the person can have an opportunity to make submissions in relation to it.
  • The counterfactual – that is, what would, or could, have happened if the heightened obligation contended for was satisfied – may be relevant to the question of whether a fair hearing was conducted.
  • A challenge to a decision based on a breach of procedural fairness may be able to be resisted if a discrete basis on which a decision can be supported, unaffected by the breach, can be identified.