Grounds for JR

Question 1

Why should procedural always be open to challenge?

Answer 1

C needs to know if their case was handled fairly (very different from whether decision itself was right or wrong)

Question 2

What two areas does procedural impropriety cover?

Answer 2

1. Failure to observe procedural statutory rules (requires public bodies to follow procedural requirements set by statute)
2. Duty to act fairly (common law procedural fairness rules)

Will discuss procedural fairness first

Question 3

What are the 2 rules of natural justice?

Answer 3

1. The right to fair hearing - person affected by decision should be given opportunity to present case and decision maker should have no interest in the outcome of the decision
2. The rule against bias - decision makers cannot act fairly if there is a risk they may be biased

Question 4

What does the application of the rule against bias depend on?

Answer 4

Whether the interest the decision maker has in the outcome is direct or indirect

Question 5

If the interest is direct, is the court obliged to automatically quash the decision?

Answer 5

Yes – bias on part of decision maker is presumed

Question 6

Examples of direct interest

Answer 6

1. Financial gain
2. Any other non-pecuniary interest

Dimes – Lord Cottenham awarded injunctions for ongoing litigation between GJCP against Dimes; later found that Cottenham had significant shares of GJCP

Question 7

When does indirect interest arise?

Answer 7

Where a relative of the decision maker has an interest

Question 8

What is the test for indirect bias?

Answer 8

Would a fair minded and impartial observer conclude that there had been a real possibility of bias?

This is an objective test – ie: how would the decision be perceived by an observer (as opposed to whether the decision was, in fact, affected by bias)

Eg: A juror who knew police officers who arrested R for trafficking drugs. Although jury deliberations are secret, a fair minded judge would’ve concluded there was a real possibility that juror influenced other jurors.

Question 9

Can courts quash decisions automatically if an interest interest is found?

Answer 9

No. Court has to:
1. Investigate the relationship between the indirect interest and the decision; and
2. Decide whether decision should be quashed on basis of apparent bias

Question 10

Does a right to fair hearing apply automatically?

Answer 10

No – it is flexible and depends on the context of each individual case

Question 11

What is the key determining factor in deciding whether a hearing has been fair?

Answer 11

How much a claimant has to lose (ie: the nature of the claimant’s interest)