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Procedural fairness is a crucial element for the functioning of our judicial system and was defined by the Australian Law Reform Commission as “acting fairly in administrative decision-making” and maintaining fairness in the procedures by which decisions are made. Callinan J of the High Court of Australia explained that “natural justice by giving a right to be heard, has long been a law of many civilized societies”. To ensure procedural fairness and the administration of natural justice, courts are required to ensure that a fair hearing is conducted and that actual or apprehended bias is avoided. Consequently, if an individual believes that procedural fairness was not observed during their trial, they may seek judicial review of this administrative decision.
In order to determine whether there has been a denial of natural justice, the court will consider whether there was in fact a duty to afford procedural fairness, and what the content of this procedural fairness was, in the circumstances of the particular case. So how does the issue of procedural fairness play out in practice? This is particularly in relation to the area of work of A Whole New Approach around unfair dismissals, general protections and constructive dismissals. It’s Critical that the workplace investigations that sit behind procedural fairness, be conducted on an objective basis as part of procedural fairness.
The case of Stead v State Government Insurance Commission
This case recently appeared before the High Court and the justices were required to rule on the issue of whether procedural fairness had been undermined during the trial hearing. Although the facts of the case were not particularly pertinent to the issue of natural justice, during its first hearing, the trial judge suggested to the appellant’s legal counsel that there was no need to provide submissions based on the evidence of one of the witnesses. Counsel for the appellant attempted to submit that this witness’ evidence should not be accepted, to which the trial judge stated:
“Alright. I don’t accept [his evidence] on that. You needn’t go on as to that”.
Understandably, counsel for the appellant did not provide any further submissions on this matter, but when the trial judge was delivering his decision, he had reserved his judgment and chose to accept the witness’ evidence. This case was then appealed to the Full Court of the. Supreme Court of South Australia on the grounds that by stopping the appellant’s counsel from making submissions on the witness’ evidence, the trial judge had deprived them from being able to provide evidence on a crucial matter in the hearing. However, the Full Court rejected the appeal on the grounds that “the primary judge was perfectly entitled to accept the evidence”. So is this an issue where procedural fairness and natural justice have been denied?
The Test for Procedural Fairness
In Balenzuela v De Gail, the High Court established that a new trial would be granted on the grounds that evidence has been wrongly rejected, unless it appears that the evidence that was rejected, could not have affected the jury’s final verdict. In Stead, the High Court also referred to the judgments of their learned colleagues in the Full Court, Bollen J which whom King CJ and Prior J agreed:
“the enquiry whether a miscarriage of justice has occurred, involves asking whether the event said to cause a miscarriage could have made any difference to the result”.
Therefore, if there is a case where the appellant is arguing that there was a miscarriage of justice because certain evidence was denied from being led, a new trial will not be permitted if the court would have made the same order, regardless of whether or not the evidence was led.
This places an important qualification on the issue of procedural fairness because it suggests that not every case where there has been a miscarriage of justice, will entitle the aggrieved party to be heard in a new trial or to succeed at appeal.
In interpreting the application of this test, the High Court enquired into the threshold to be satisfied when determining whether procedural fairness has failed to be followed. The Court said:
“All the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome”.
As such, the test is not about whether allowing evidence to be accepted and submissions to be made, would probably make a difference to the result. The test is whether it is possible for the hearing of such evidence to affect the outcome, which is a lower threshold.
An Issue of Law or an Issue of Fact?
In Stead, the High Court made a distinction between an appeal regarding the miscarriage of justice on an issue of law, and an issue of fact. Mason, Wilson, Brennan, Deane and Dawson JJ stated:
“If all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.”
Put simply, where submissions have been denied on a question of law, the appellate court will not accept the appeal if the leading of that evidence would have nevertheless resulted in an unfavourable outcome for the aggrieved party.
On the other hand, with regard to submissions made on an issue of fact, the High Court stated that it “should proceed with caution”. The reason for this is that it is much more difficult for the court to determine that evidence presented on an issue of fact, would have no bearing on the outcome. In the case of Stead, the trial judge had denied the leading of a witness’s evidence on the facts of the case.
Therefore, the established High Court authority suggests that where there is an alleged miscarriage of justice, it is necessary to determine whether the question is with regards to an issue of fact or law.
The Importance of Assessing the Witness
The High Court has also stated that making a determination as to whether hearing certain evidence would have made any bearing on the outcome, is impacted by the court’s ability to hear and see the witness in question. The trial judge in Stead was able to see and assess the witness and could make a suitable determination on this matter. However, when the decision was appealed to the Full Court, the court did not have these same liberties. As the hearing in the Full Court was simply to obtain leave to appeal, it was unable to see and hear the witness, and in the opinion of the High Court, this placed the court in no position to be able to be satisfied that accepting such witness testimony would have made no possible difference to the result.
So has there been a Miscarriage of Natural Justice?
Based on the High Court authorities, when determining whether procedural fairness has been achieved, the court will take into account the following factors:
- Whether it was possible for the hearing of such evidence to make a difference to the outcome.
- Whether the evidence was with regards to an issue of fact or an issue of law.
- Whether the court had the ability to satisfactorily see and hear the witness whose evidence is in question.
After a thorough discussion of these factors, the High Court in Stead concluded that the Full Court’s order to refuse a new trial was mistaken. The hearing of that witness’ evidence would have possibly impacted the outcome and there had been a failure to achieve procedural fairness.
By Gary Pinchen
 ALRC (n 1).
  HCA 54 (‘Stead’).
 Ibid .
 Ibid .
  HCA 1 (‘Balenzuela’).
 Stead (n 6) .
 Ibid -.
 Ibid .
 Ibid .
 Ibid .