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Procedural fairness

Beaumonts Beach House v Baldwin [2012] NSWWCCPD 28. Keating P. 30.5.12.

Arbitratror Ms Faye Robinson had refused the employer’s solicitor from appearing by telephone from theNorthCoast before making orders, including amending to extend the period of weeklies claimed.

The arbitrator’s reasons did not embrace the refusal.

The President, from in [30] described “…  the fundamental rule that a party is entitled to be heard in relation to the case against it, before a decision-maker exercises the power to make a decision adverse to that party’s interests: Twist v Randwick MC (1976) 136 CLR 106.

“The obligation to accord procedural fairness requires that a party be given notice of the case that is put against him and a reasonable opportunity to put evidence and submissions before the tribunal: NSW Police v Winter [2011] NSWCA 330 at 84.”

The arbitrator’s refusal to hear the employer constituted “clear” denial of procedural fairness.

Matter remitted to another arbitrator, no costs.

A: Mulcahy. R: Carroll & O’Dea.

Winter v New South Wales Police Force [2010] NSWWCCPD 121. Roche DP. 16.11.10.

176. Proceedings in the Commission are less formal than in a court. Cross-examination is only allowed by leave. The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter permits (s 354(2) of the 1998 Act). When informing itself on any matter, the Commission is to bear in mind the “principles of procedure” set out at Pt 15.2 of the Rules which state, among other things, that evidence based on speculation and unsubstantiated assumptions is unacceptable. The Commission must also act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities or legal forms (s 354(3) of the 1998 Act).

177. When considering the application of the rules of procedural fairness, it is instructive to bear in mind the words of Gleeson CJ inIn Re Minister for Immigration & Multicultural Affairs; ex parte Lam[2003] HCA 6;214 CLR 1where his Honour said at [37]:

“Fairness 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.”

In Muir v Refugee Review Tribunal [2002] HCA 30, McHugh J stated the requirement as follows at [123]:

“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.”

Whilst a tribunal is not required to give a “running commentary upon what it thinks about the evidence” (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[2006] HCA 63[48]) and it does not have to disclose what it is minded to decide (F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295at 369), where there are specific matters which the tribunal thinks are important to the determination of the claim, it is essential that those matters be brought to the parties’ attention in such a way that they have a reasonable opportunity to answer them.

Fletcher International Exports  v Barrow & Anor [2007] NSWCA 244, Mason P, Santow & Tobias JJA agreeing. 13.09.07.

Complaint about the intermediate appeal proceeding without oral hearing was also dismissed. At [98] Mason P said:

The submissions that the presidential member was in some way obliged to seek clarification of the way in which the Appellant contended its submissions were relevant seeks to impose a duty on which the statute is silent. Procedural fairness does not require this of a decision-maker: a reasonable opportunity to advance arguments is all that is required in a context where the issues are known or, as here, formulated by the party in question.

The detailed reasons provided in the determination show that the presidential member understood the employer's submissions, addressing them in turn.

Next, it is submitted that the presidential member had no proper regard to the fact that the worker had raised no objection to the employer's submission that an oral hearing should take place. Once again this seeks to read conditions into the statute that its language does not bear. The worker's failure to resist an oral hearing did not have the consequence that it became mandatory.

"Indeed, the paucity of the material filed by the worker would have been a factor capable of supporting the decision of the Commission to proceed as it did. The Commission's Practice Direction No 6 indicated an expectation that most applications for leave to appeal a decision of an arbitrator would be determined on the papers unless the presidential member otherwise directed. [100]

It would have been remarkable if the acting deputy president had not had regard to the arbitrator's notes on the Commission file.

Appeal dismissed with costs.

Guidelines indeterminate 19 WCMS 1>>

Sydney South West Area Health Service v Avery [2007] NSWWCCPD 213. Roche DP. 22.10.07

33. The principles of natural justice and procedural fairness as they apply to tribunals have been discussed in many cases. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Mason J (as he then was) said at [31]:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

34. In Re Minister for Immigration & Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1  the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Gleeson CJ said (at [37]):

Fairness 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.

35. In Muin v Refugee Tribunal [2002] HCA 30 Justice McHugh stated the requirement as follows at [123]:

Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.

36. In considering the application of the rules of natural justice to the Commission the NSW Court of Appeal held in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [20] that:

As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.

37. The judgment by Gibbs CJ in National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312 is also instructive:

In Russell v The Duke of Norfolk (1949) 1 All ER 109 Tucker LJ said, at p 118:

'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.The passage has frequently been approved - for example, by this Court in Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.

38. Proceedings in the Commission are less formal than in a court. The Commission is required to conduct its matters with 'as little formality and technicality as the proper consideration of the matter permits': s 354(1) of the 1998 Act. Arbitrators are, however, required to comply with the rules of natural justice and procedural fairness: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [91].

39. In the present matter, fairness in all the circumstances required that each party be given a reasonable opportunity to be heard: Allesch v Maunz (2000) 203 CLR 172 at 185.

Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW [2010] NSWSC 833. Barr AJ. 30.07.10.

CARS assessor Mr David Ford, the second defendant, referred to the internet’s Wikipedia about complex regional pain syndrome (CPRS), also known as reflex sympathetic dystrophy, in his assessment of $336, 699 for the claimant, the third defendant in this application.

The insurer complained of irrelevant considerations, denial of natural justice or procedural fairness.

A plaintiff’s treater report, from Dr David Gronow, was also unserved but relied on by the assessor.

Acting Justice Barr detailed MACA and Guidelines provisions.

“A party before a tribunal has a right to know the evidence that is being relied on by the tribunal and on which a determination may possibly be made against its interests. The party is entitled to make oral submissions about such matters: Ah-Dar v State Transit Authority (2007) 69 NSWLR 468,” his Honour said [in 17].

Barr AJ quoted Kiefel J in Rodriguez v Telstra [2002] FCA 30 at [24]:

“In any event if a view is formed by a Tribunal which goes beyond the opinions expressed by the experts in evidence, fairness requires that it be disclosed and the parties permitted an opportunity to address it,” and [in 25], “The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force,” before citing authorities.

Barr AJ said [23]: “It is possible that the material which the claims assessor obtained was completely accurate but in view of the disclaimers published by the service, there seems to be a substantial risk that it contained errors. It seems to me that if the claims assessor had informed the parties that he was informing himself by that means, the parties would have been entitled to and would have wished to make submissions about whether the information derived from that source was reliable and to put before the claims assessor evidence from the medical practitioners they had qualified.”

Then [25], “In my opinion the plaintiff has established that it was denied procedural fairness and its entitlement to an order setting aside the assessment and remitting the matter to the CARS for assessment according to law. It seems to me that in view of the nature of the information acquired by the claims assessor it would be better if the assessment were done by another claims assessor.”

Assessment set aside, matter remitted to Principal Claims Assessor for allocation to another assessor, third defendant to pay costs with Suitors Fund Act certificate.

P: M Robinson, inst Lee & Lyons. 3D: E Romaniuk, inst Konstan.

Fairfax Regional Printers PL v Workers Compensation Commission of NSW & Anor [2007] NSWSC 1087. Malpass AJ. 05.10.07.

Then [24],

"There was a clear denial of procedural fairness. The arbitrator came to make the orders in circumstances where she should have been considering the question of jurisdiction only. She denied the plaintiff of the opportunity of being heard on the question of the making of such orders. This appears to have been done both blatantly and deliberately. It seems to me to be a matter that should be referred to the prothonotary for further consideration."

Malpass AJ turned to WIM s 350 which "is what is described as a privative clause. There is well-established authority that such a provision does not take away the jurisdiction had by this Court, and which is now the subject of s69, where a commission is purporting to act without jurisdiction: see, inter alia, Ex Parte Transport Workers Union of Australia: Re Gallagher [1964-5] NSWR 1224). The courts have repeatedly applied that which is referred to as the Hickman principle: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614-616. See also Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, and DCT v Richard Walter PL (1995) 183 CLR 168.

"The Hickman principle is a rule of construction which deals with the need to reconcile conflicting provisions in a statute. The three conditions of it, in this case, are as follows:

1. That the arbitrator made a bona fide attempt to exercise the powers of the Commission;

2. That the orders made by her relate to the subject matter of the WIM Act; and

3. That the orders made by her are reasonably capable of reference to the powers given to the Commission.

"In the present case, it suffices to say that I am of the view that the third condition cannot be made out. It may also be observed that neither defendant seeks to litigate this aspect of the matter."

Malpass AJ commended another arbitrator hear the matter. Arbitrator's order quashed. Costs reserved. Papers referred to Prothonotary.

P: Mr J. N. West QC, Mr J. Lichtenberger; inst Hicksons. 2D: Ms S. Ryan, sol, Turner Freeman.

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