Procedural Impropriety

Question 1

Rules of natural justice

Answer 1

• rules against bias
• right to a fair hearing
• duty to give reasons

Question 2

3 types

types of rules against bias

Answer 2

1) actual bias- in fact (person favor or disfavors the party - DIFFICULT TO PROVE
R v Gough [1993]
-
2) Direct Interest: 2 types:
- pecuniary interest (Dimes and the Grand Junction Canal Case)
- personal/other interest (Pinochet (No 2))

3) Apparant Bias - Porter v Magill [2002]

Question 3

Pecunirary Interest

Answer 3

Dimes and the Grand Junction Canal (1852):
TEST: judge must disqualify themselves from a case if they have a direct financial interest in it

Question 4

Personal/Other Interest

Answer 4

Pinochet (No 2)
TEST
- any specific link to a third party of the case (or party of the case).
- typically must be a party of the case (or third party with direct linkage to interest in case).

Question 5

Actual Bias

Answer 5

R v Gough [2003]
TEST: whether there was a real danger that the appellant had not had a fair trial (hard to prove- even in the case actual bias was not found)

Question 6

Apparent Bias

Answer 6

Porter v Magill [2002]
TEST
- judge is disqualified when
1) ‘the fair-minded and informed observer,
2) having considered the facts, would
3)conclude that there was a real possibility that the tribunal was biased.

Question 7

Right to Fair Hearing

Answer 7

Ridge v Baldwin [1964]
- also a case on fair hearing but more about fair hearing being necessary even for administrative decisions (not just judicial).

Ex parte Doody:

set out guidelines for procedural fairness:
1) presumption that authorities will follow procedural measures of fairness.
2) fairness will change over time
3) fairness will change on facts
4) essential to understand the discreationary scope of statute.
5) it will often require a person directly affected to be able to make representations.
6) it will often require person directly affected to be given the ‘gist’ of the case

Secretary of State for the Home Department v AF [2009]
- must be given the gist of the case
- even when balancing national security.

Question 8

Scope of Natural Justice

Answer 8

Ridge v Baldwin [1964]
- duty to observe natural justice is not confided to judicial or quasi-judicial powers.
- ie they apply to administrative decisions.
- the case was about right to fair hearing

Question 9

principle, test, effect

Duty to Give Reasons

Answer 9

R (Oakley) v South Cambridgshire Distrcit Council [2017]
no general duty to give reasons - however the trend is leaning toward in general reasons should be given unless there is justification.

Ex parte Institute of Dental Surgery:
provides 2 categories where duty arises:
- 1) where nature and impact of decision itself call for reasons as routine aspect of procedural fairness (ex parte doody - nature of decision was about Cs liberty (fundamental right))
- 2) ‘trigger factor’: decisions appear abberant - something peculiar to the decision which in fairness calls for reasons (Cunningham)

R (Hasan) v Secretary of State for Trade and Industry [2008]
- duty to give reasons is only owed to those affected by the decision

Padfield v Minister of Agriculture [1968]:
- failure to give reasons will likely lead to Court deciding improper purpose or Wednesbury unreasonablness.

**EFFECT: **
Mandatory Order (this is more appropriate)
Quashing order - Marshall v Bermuda [2010] says it can provide for quashing order but likely only if there are other factors.

Question 10

Elements of a fair hearing:

Answer 10

Right to be heard- Cooper v Wandsowrth Board of Works 1863

Disclosure of information - ex parte Doody 1994

Secretary of State for the Home Department v AF [2009]
- must be given the gist of the case
- even when balancing national security.