LLB230 Lecture Notes - Lecture 12: City Of Randwick, Legitimate Expectation, Kuringgai
Seminar 12 Procedural Fairness – Hearing Rule
Fits under s 5(1)(a) of ADJR Act
Note the comments from Mason J in Kioa v West mean that common law cases must be considered
to define the grounds
Components:
1. Will the decision adversely affect a person’s rights, interests and legitimate expectations?
‘before a decision is made adversely affecting a person’s right, interest or
legitimate expectation, the decision-maker must give the person prior notice that a
decision is being made, the information (particularly adverse information) on which
the decision may be based and their right to make a submission in reply’ (TB634)
duty may be removed or diminished
normally requires an express intention to exclude by may be implied based on
appeal rights, urgency of decision etc
legitimate expectation = relates to established procedures by agencies
2. How were they denied an opportunity to be heard?
Problem question:
Case Study 1: Destruction of plant specimens:
Owners:
oViolation of property rights – destruction of property
oLegitimate expectation of notification before destruction
Intended receivers:
oDo they have a right or interest?
Destruction of proposed research materials
oLegitimate expectation
Case Study 2: Ku-ring-gai council:
Has there been an adverse impact?
o‘had been denied an opportunity to respond to the figures and underlying KPMG analysis on
which a major aspect of the proposal was founded’ – Ku-ring-gai Council v West [2017]
NSWCA 54, [38]
Is there an obligation to afford procedural fairness – Kioa v West?
‘It is a fundamental rule of the common law doctrine of natural justice expressed in traditional
terms that, generally speaking, when an order is to be made which will deprive a person of some
right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to
be made against him and to be given an opportunity of replying to it’ – Mason J (TB652)
‘The reference to “right or interest” in this formulation must be understood as relating to personal
liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and
interests.’ – Mason
‘The law has no 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’ – Mason
Drew a distinction between – ‘direct and immediate’ (Mason) effect on a person’s
rights/interests/legitimate expectations
Noted ‘the importance [of] the need to bring to a person’s attention the critical issue or factor on
which the administrative decision is likely to turn so that he may have an opportunity of dealing
with it’ – Mason
‘regard must be had to the circumstances of the particular case’ – Brennan J
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Seminar 12 procedural fairness hearing rule. Note the comments from mason j in kioa v west mean that common law cases must be considered to define the grounds. Owners: violation of property rights destruction of property, legitimate expectation of notification before destruction. Destruction of proposed research materials: legitimate expectation. Has there been an adverse impact: had been denied an opportunity to respond to the figures and underlying kpmg analysis on which a major aspect of the proposal was founded" ku-ring-gai council v west [2017] The reference to right or interest in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests. " mason. Drew a distinction between direct and immediate" (mason) effect on a person"s rights/interests/legitimate expectations. Regard must be had to the circumstances of the particular case" brennan j.
