Natural Justice

The requirements of natural justice include:

  • the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the subject matter that is being dealt with:  Russell v Duke of Norfolk [1949] 1 All ER 109 at 118
  • that the person concerned should have a reasonable opportunity of presenting his case Cameron v Cole (1944) 68 CLR 571 at 589; Taylor v Taylor (1979) 143 CLR 1 at 4, 22 and where a party, through no fault of his own, is deprived of that entitlement, any order made against him can, prima facie at least, be set aside:  Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 [137]-[138]
  • that the hearing be a fair one and what is fair in a given situation depends on the circumstances: Mobil Oil Australia Pty Ltd v Federal Cmr of Taxation (1963) 113 CLR 475 at 504
  • that the procedures adopted were unfair in the circumstances or that the applicant has suffered a “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14
  • consideration of the statutory context: National Companies & Securities Commission v News Corp Ltd  (1984) 156 CLR 296 at 326
  • consideration of the consequences of the decision are also relevant – the extent of participation in proceedings will tend to increase in proportion to the seriousness of the possible consequences: Gribbles Pathology (Vic) Pty Ltd v Cassidy  (2002) 122 FCR 78 at 100

Keep in mind what Zelling J said in R v Berri District Council; Ex parte Eudunda Farmers Cooperative Society Ltd (1982) 31 SASR 342 (at 345): “[T]here are in my opinion only two [rules of natural justice]: bias and failure to hear the other side”.

Where an oral hearing is required, cross-examination may not be an essential element of such a hearing resulting in a breach of natural justice where it increases the length, formality and cost of proceedings: NCSC v News Corp (1984) 156 CLR 296 at 314

However a failure to adjourn a hearing so as to enable a party to be present or to give evidence may amount to a denial of natural justice: Opitz v Repatriation Commission (1991) 29 FCR 50

A failure to grant an adjournment can be a breach of natural justice although no application for an adjournment was made: Woolworths Ltd v Cmr of Police [2013] WASC 413 [118]

In Northbuild Construction Sunshine Coast Pty Ltd v Beyfield Pty Ltd [2014] QSC 80 it was held that there was a denial of natural justice by denying a party an opportunity to persuade the adjudicator of the incorrectness of the adjudicator’s reasoning on an essential point

In TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387 the Full Court of the Federal Court referred to the following principles/authorities in discussing natural justice/procedural fairness (the authorities referred to there are omitted here):

  • (at [84]) The common expression of the fundamental structure of the rules of natural justice or procedural fairness is the so-called “bias rule” and the “hearing rule”: that a person may not be a judge in his or her own cause; and that a person should be given a fair hearing.
  • (at [85]) The expression “natural justice” (and thus the expression “the rules of natural justice”) must be approached with caution because the phrase tends to suggest that there exists a package of procedural rules which must always be observed, when, in fact, the requirements of natural justice vary according to the circumstances. This does not deny the ready structure of available rules to guide judgment, but it reminds one that the underlying premise is not one or more black-letter rules, but the notion of fairness.
  • (at [86]) The required content of fairness in any particular case will depend on context: constitutional, statutory and human, on all the circumstances of the case. The fairness required relates principally to the procedure employed in dealing with the party in question. That may involve the exercise of state or governmental power over the individual, who may be vulnerable and powerless, or a great corporation. The terms of any statute will be critical. The common element is that, generally speaking, the exercise of power should be fair. That exercise will always have a human context. That is why … fairness is not an abstract concept, but essentially practical. The concern of the law is to avoid practical injustice. Fairness is normative, evaluative, context-specific and relative.
  • (at [87]) The importance of fair procedure, of the fair exercise of power, of not exercising power in a manner that is practically unjust explains why it can be said that there is nothing technical about the rules of natural justice.
  • (at [88]) There are judicial expressions of a view that the rules of natural justice are not limited to the two rules referred to above. In a context involving the exercise of state power it has been stated that the failure to respond to a substantial, clearly articulated argument, relying on established fact, was to fail to accord natural justice. One illustration of these wider conceptions of procedural fairness focusing upon the adjudication of the matter, rather than the process of reaching the adjudication, is the so-called “no evidence rule” — the requirement to base a decision upon probative evidence.
  • (at [89]) The roots of the so-called “no evidence rule” in England was expressed in terms identical to the traditional error of law test of finding of facts in the absence of relevant probative material.