KPR & MRS
[2007] FamCA 1334
•8 November 2007
FAMILY COURT OF AUSTRALIA
| KPR & MRS | [2007] FamCA 1334 |
| FAMILY LAW – APPEAL – NATURAL JUSTICE – ENTITLEMENT TO BE HEARD – Established that failure of appellant to be heard, either by failure of Federal Magistrate to invite submissions or failure of Counsel to seek to make submissions, constituted a lack of fairness according to principles of natural justice. Matter remitted for rehearing. National Companies and Securities Commission Ltd v News CorporationLtd (1984) 156 CLR 296, Kioa v West (1985) 159 CLR 550, Allesch v Maunz (2000) 203 CLR 172 and Stead v State Government Insurance Commission (1986) 161 CLR 141 cited. |
| National Companies and Securities Commission Ltd v News Corporation Ltd (1984) 156 CLR 296 Kioa v West (1985) 159 CLR 550 Allesch v Maunz (2000) 203 CLR 172 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
| APPELLANT: | KPR |
| RESPONDENT: | MRS |
| FILE NUMBER: | BRM | 15134 | of | 2006 |
| APPEAL NUMBER: | EA | 71 | of | 2007 |
| DATE DELIVERED: | 8 November 2007 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 1 November 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 May 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 395 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Greg Levick |
| SOLICITOR FOR THE APPELLANT: | Ms Vivien Carty Legal Aid Commission of NSW – Coffs Harbour |
| COUNSEL FOR THE RESPONDENT: | Mr Loomes |
| SOLICITOR FOR THE RESPONDENT: | Ms Pardeep Grewal MBT Lawyers |
Orders
That the appeal be allowed.
That the matter be remitted to the Federal Magistrates Court for rehearing by a Federal Magistrate other than Federal Magistrate Halligan.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the respondent in relation to the appeal.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the rehearing.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the respondent in relation to the rehearing.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as KPR & MRS.
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA 71 of 2007
File Number: BRM 15134 OF 2006
| KPR |
Appellant
And
| MRS |
Respondent
REASONS FOR JUDGMENT
By amended Notice of Appeal filed 21 September 2007 KPR (“the appellant”) appealed against orders made by Federal Magistrate Halligan on 8 May 2007 in proceedings between the appellant and MRS (“the respondent”).
The orders of the learned Federal Magistrate relevantly provided that during any period that the respondent was imprisoned the child of the parties JRS born …October 2001 spend time with the respondent every second Sunday from 1pm to 3pm. His Honour’s orders provided that the respondent’s “representative” collect the child from the appellant to facilitate such time with the respondent and return the child to the appellant at the completion of such time.
The appellant seeks that the learned Federal Magistrate’s order that the respondent spend time with the child in prison be discharged and that, in lieu thereof, orders be made, the effect of which would be that the respondent not see the child whilst ever the respondent remained incarcerated.
The respondent resisted the appeal and sought to maintain the learned Federal Magistrate’s orders.
On 24 October 2007 the appellant filed an application for leave to adduce further evidence in the appeal. That application was supported by an affidavit sworn by the appellant’s solicitor. At the hearing of the appeal Counsel for the appellant abandoned the application for leave to adduce further evidence.
Background
Some matters of background can be briefly stated. These matters are not controversial, and find expression in the learned Federal Magistrate’s Reasons for Judgment and/or matters agreed by the parties.
Before the learned Federal Magistrate, the parties agreed that there be equal shared parental responsibility between them for their child, that the child reside with the appellant and, whilst the respondent was not incarcerated, spend time with him on a reasonably substantial and significant basis during school term, school holidays and on special occasions.
In November 2006 the respondent was the driver of a motor vehicle which was involved in an accident. A passenger in the vehicle driven by the respondent at that time was killed in that accident. At the time the respondent was affected by alcohol and left the scene of the accident. He was subsequently arrested and charged with a serious offence.
In early September 2007 the respondent was incarcerated. It is common ground that the respondent will be incarcerated for some years, whether that be two, three or four years being immaterial for present purposes.
By agreement with the appellant the respondent had been spending time with the child prior to the hearing before the learned Federal Magistrate. It was common ground that the child had a good relationship with the respondent.
At the date of his Honour’s Judgment both parties lived at S. It was common ground that the respondent would be incarcerated at a correctional facility at K, from 1 - 1¼ hours drive from S.
The appellant proposed that the child to spend time with the respondent whilst the respondent was incarcerated by way of mobile phone, video link, video conferencing, letters, email, facsimile or other electronic methods of communication.
The respondent proposed that he spend time with the child in a part of the corrective facility designated for the purpose of such visits for a period of two hours every third Sunday. The appellant was unable to facilitate travel to enable the child to spend time with the respondent in the correctional facility.
The respondent proposed that his mother and her partner of long standing, Mr B, facilitate the child’s transport to and from the corrective centre for the purpose of spending time with him. The appellant objected to the child being alone with Mr B. The respondent agreed to an order that the child not be alone with Mr B.
The Reasons for Judgment of the learned Federal Magistrate
Having identified the matters upon which the parties have reached agreement, and, accurately there is no doubt, the matters which remained controversial, the learned Federal Magistrate proceeded to consider the implications of the respondent’s impending incarceration which were central to the dispute before him.
Having referred to the methods of communication by which the appellant proposed that the child’s relationship with the respondent would continue during the latter’s incarceration, his Honour recorded that there was no evidence before him that inmates of a correctional facility were allowed mobile telephones. His Honour also recorded his “understanding” that inmates did not have ready access to video links for the purpose of communicating with children. He also referred to the absence of evidence that the appellant had any facilities to permit any form of video link or video conferencing to occur or any capacity to obtain such means.
The learned Federal Magistrate concluded that the proposals sought by the appellant revealed “a total ignorance of the reality” that would shortly face the respondent and the difficulties that that will create any meaningful communication or relationship between the respondent and the child (Appeal Book, page 17, par 7).
The learned Federal Magistrate referred to the evidence that despite the November 2006 accident and the appellant’s concerns about the paternal grandmother’s partner Mr B, the appellant had permitted the child to spend time with the respondent, including time with the respondent on an over-night basis.
His Honour recorded the concession of the appellant that the child had a “close and loving relationship” with the respondent and was “distressed” at leaving the respondent at the end of his time with him. Reference was also made to the evidence of the appellant that the child “idolises” the respondent (Appeal Book, page 18, par 13).
The learned Federal Magistrate referred to the legal principles which were relevant to his determination. No part of the appeal involves any suggestion that his Honour misstated the law, a significant aspect of the appeal being the appellant’s contention that his Honour ultimately failed to imply the relevant law to the facts as found in a number of respects.
Having referred to the evidence in relation to the child’s disclosure to her that the paternal grandmother’s partner Mr B had “taken him down to the shed in the back yard and played with him and told him to suck his penis” (Appeal Book page 19, par 17), his Honour referred to the evidence in relation to the involvement of the DOCS, and to the possible involvement of the JIRT and the absence of disclosure by the child to either of those authorities (Appeal Book, page 19, par 18).
Mr B was cross-examined and “adamantly denied that anything untoward had occurred” (Appeal Book, page 19, par 19).
His Honour concluded, uncontroversially for present purposes, that there was “no evidence upon which the Court could make a finding that there was any actual abuse of this child by Mr [B]”. His Honour then considered whether there was “sufficient evidence to satisfy the Court that there is nonetheless an unacceptable risk of harm to this child if the child were to come into contact with Mr [B]” (Appeal Book, page 19, par 20).
The evidence of alleged abuse was considered by his Honour to be “somewhat tenuous”. His conclusion was that the appellant was “concerned that something untoward occurred” (Appeal Book, page 19, par 22).
His Honour concluded that “it is in the child’s best interest, because it will afford the mother some greater confidence and reassurance, that the restriction that was indicated by the father should be imposed in this particular case” (Appeal Book, page 19, par 23). The “restriction” was that the child not be left alone with Mr B.
Turning to the question of whether the child should have any “face to face interaction” with the respondent during the latter’s incarceration, the learned Federal Magistrate observed that such a course would be likely to result in the child being “nine and a half before he gets to see his father again” (Appeal Book, page 19, par 24).
His Honour accepted the “genuineness of the mother’s expressed concerns”, which he then detailed. The thrust of those complaints related to the circumstances in which the child would necessarily spend time with the respondent in the corrective centre by virtue of the nature of such centres and the procedures which operate within them “the abbreviated nature of that time compared to what the child has otherwise had”, and the child’s distress at having to leave his father at the end of visits (Appeal Book, page 19, par 25).
The learned Federal Magistrate observed, uncontroversially, that, the four years of “not actually seeing his father at all, very serious damage would have been done to the currently very warm and close relationship that this child has with his father” (Appeal Book, page 20, par 26). His Honour concluded that the appellant’s proposal would “deny this child the benefit of a meaningful relationship with his father”, a “primary consideration” (Appeal Book, page 20, par 27). The learned Federal Magistrate also concluded that time spent with the father at a corrective centre in the manner sought by the father would have “some detrimental effect upon the current close relationship the boy has with his father” (Appeal Book, page 20, par 27).
Ultimately, his Honour was not satisfied that it would be better that the child’s relationship with the respondent “be even more seriously damaged by cutting off all time that the boy has with his father”. That risk was considered by his Honour to be “greater to the welfare of the child than will the undoubted distress to the child of seeing his father in gaol and having to endure the relatively short periods of time with him” (Appeal Book, page 20, par 28).
Having thus concluded that the child should spend time with the respondent at the correctional facility, on the basis proposed by the respondent, the learned Federal Magistrate turned his attention to the difficulty associated with implementing such an arrangement. His Honour recorded, accurately, that the appellant was not able to facilitate the travel from S to G or K Gaols to enable the child to spend time with the respondent.
His Honour recorded, accurately, that “the only viable option then is for either of the paternal grandparents to convey the child to and from the gaol in which the father is incarcerated”. The evidence was considered to suggest “that the child’s relationship with each of his paternal grandparents would be somewhat limited” for reasons which he detailed. (Appeal Book, page 20, par 30).
An implication of the paternal grandparents facilitating the child’s travel to spend time with the respondent at a corrective centre was that there would “not be a person with whom the child has a close relationship whom might be in the best position to console and reassure the child of those visits if the order is made and the only way that it could operate” (Appeal Book, page 20, par 32).
Accepting that the proposal was less than ideal, the learned Federal Magistrate concluded that “the best arrangement can be made in the circumstances for this child to spend time with the father are to be taken by members of the father’s family with the proviso that the child not be left along with Mr B at any time” (Appeal Book, page 21, par 37).
For those reasons his Honour made the orders which give rise to the present appeal.
The Grounds of Appeal
The Amended Notice of Appeal raised a number of challenges to the learned Federal Magistrate’s decision. A comprehensive and cogently reasoned written outline of argument dated 19 October 2007 was relied upon by Counsel for the appellant. A similarly comprehensive, and equally cogently reasoned outline of submissions provided on 31 October 2007 was relied upon by Counsel for the respondent.
On the hearing of the appeal, Counsel for each of the parties made further oral submissions to the Court. In the course of his oral submissions, Counsel for the appellant made particular reference to a submission in his written outline of argument in the following terms:
23.The transcript demonstrates that the Federal Magistrate did not seek or receive submissions from the solicitor for the mother despite having sought and obtained submissions from counsel for the father. (Outline of Argument of Appellant, page 6, par 23).
In the course of his submissions Counsel for the appellant signified his wish to rely upon the complaint thus agitated. Counsel sensibly conceded that no ground of appeal raised the matter referred to in the submission, and that the submission could not be reasonably accommodated within any ground of appeal appearing in the Amended Notice of Appeal.
To the extent necessary, Counsel thus sought leave to amend the Amended Notice of Appeal by adding a ground in the following terms:
That the Federal Magistrate denied the appellant natural justice in that he did not seek or receive submissions from the solicitor for the appellant despite having sought and obtained submissions from Counsel for the respondent.
Counsel for the respondent did not oppose the granting of leave to amend the grounds of appeal include the additional ground. Nor did Counsel for the respondent seek an adjournment to meet the complaint raised by that additional ground.
For reasons which will emerge, it is convenient to address the additional ground of appeal before considering, if it be necessary to do so, any other ground contained in the Amended Notice of Appeal.
The Additional Ground of Appeal
Unsurprisingly, having regard to the nature of the complaint, Counsel for the appellant submitted little in addition to that which the ground reveals to be the basis of this challenge.
Counsel for the appellant invited the Court to closely follow the course of the proceedings, submitting that so doing would lead this Court to be satisfied that, albeit possibly through no fault of the learned Federal Magistrate, the appellant had not been afforded the opportunity to be heard in submissions at the conclusion of the evidence and prior to the Court reaching its decision. The appellant was asserted ti gave thereby been denied natural justice.
It was fairly conceded on behalf of the appellant that at no time had the appellant’s then legal representative affirmatively signified the desire to make submissions on the appellant’s behalf or, however obliquely, registered any dissent from the learned Federal Magistrate’s course of not inviting submissions on behalf of the appellant. It was, in essence, submitted however that the appellant’s entitlement to natural justice ought not in the circumstances as revealed by the transcript be seen as having been forfeited.
Counsel for the respondent was, perhaps understandably, similarly circumspect in the submissions made in opposition to this ground. Although not expressed in such terms, the basis of the respondent’s resistance to this challenge could be seen as being that, the appellant’s then legal representative not having asserted the right to be heard in the way that she might, the learned Federal Magistrate ought not be criticised for not having afforded her the opportunity to make submissions on behalf of the appellant.
The issue raised by this ground is not without difficulty. It is instructive for present purposes to refer in some detail to the course which the proceedings took after the completion of the evidence. Before embarking upon that exercise however it should not be forgotten that the case which his Honour heard had two distinct components.
On the one hand, as is not in doubt, the parties had reached substantial agreement with respect to a number of significant issues, albeit agreement in that regard had not been reduced to writing. On the other hand, as is not in doubt, there was a live issue before his Honour in relation to whether “face to face” time would be spent with the respondent from the time the respondent was incarcerated.
By virtue of the appellant’s inability to facilitate the travel required for such time to be spent with the respondent, a number of otherwise subsidiary considerations assumed prominence. These included the suitability of the child travelling with the paternal grandparents in general, and with Mr B in particular, to and from visits to the correctional facility in which the respondent would be residing, and the absence of the appellant to assist with the child’s distress at the completion of his time with the respondent and/or distress associated with seeing the respondent in a correctional centre. Those matters were the subject of evidence before the learned Federal Magistrate and were considered in two Family Reports which are agreed to have been before his Honour.
As is not in doubt, after the evidence before the learned Federal Magistrate concluded, Counsel for the present respondent commenced to make what were undoubtedly submissions in support of the present respondent’s case. Those submissions continued for some time as evidenced by the pages of transcript which records it.
During the course of those submissions there were a number of exchanges between Counsel for the respondent and the learned Federal Magistrate. Those exchanges were in the nature of testing of hypotheses and/or clarification of the case being asserted on behalf of the respondent. Save for one inquiry directed by his Honour, and appropriately so, to the appellant’s then legal representative, the submissions on behalf of the respondent continued until, as Counsel then appearing made clear, all that Counsel wished to submit to the learned Federal Magistrate on behalf of his client had been submitted. That is clear from Counsel for the respondent’s statement “thank you, your Honour”. After which (Appeal Book, page 111, line 4).
Without suggesting that the duration of the submissions on behalf of the respondent necessarily thereby assumes significance, the submissions of Counsel for the respondent are recorded in five pages of transcript.
After Counsel for the respondent concluded his submissions the learned Federal Magistrate observed that “nobody has really addressed me on the arrangements that should be in place before or after the father’s incarceration” (Appeal Book, page 131, lines 7 – 9). Counsel for the respondent replied that “the parties are actually in agreement in relation to that, they actually should reduce that to writing to assist the Court” (Appeal Book, page 131, lines 11 – 12). Read in context, Counsel for the respondent was clearly, and accurately, signifying that the parties agreed on the arrangements which should operate before the respondent’s incarceration.
The issue which remains for his Honour to determine, as his Reasons for Judgment leave no doubt that he recognised, was the arrangements that should apply after the respondent’s incarceration.
Counsel for the respondent submitted to his Honour that “the only issue of course is contact with Mr B and in that regard, perhaps we will leave that part out” (Appeal Book, page 131, lines 16 – 17). As is not in doubt, and without suggesting anything said by Counsel to have been in any way misleading or mischievous, that was by no means the “only issue”. Indeed, the course of the trial suggests that to have largely ceased to be an issue by that time. His Honour then, sensibly, suggested “Well, before I go any further, I need to know what those arrangements are to be” (Appeal Book, page 131, lines 19 – 20). He also recorded, sensibly, that such arrangements would be “quite significant in my mind” for the purpose of determining the controversial issue which remained (Appeal Book, page 131, line 24). There was then brief discussion with the appellant’s then legal representative in relation to the issue relating to Mr B. The matter was then adjourned until 2:15pm.
Upon resumption, a document was provided to the learned Federal Magistrate and became Exhibit B. His Honour asked whether the appellant was “agreeing to all bar the last paragraphs” to which the appellant’s then legal representative replied, “yes, your Honour” (Appeal Book, page 133, lines 38 – 39; 41). The learned Federal Magistrate said, “thank you” and then proceeded to deliver his judgment (Appeal Book, page 133, line 43).
Exhibit B was erroneously identified in the Appeal Book index as having been included in the Appeal Book. Subsequent to the hearing of the appeal, the Court obtained the document marked “Exhibit B” from the registry. The document appears to be in two parts, one of three handwritten pages setting out orders which appear to have been the subject of agreement, and are substantially reflected by the consent orders made by the learned Federal Magistrate. Those three pages are stapled together. His Honour’s handwritten notation “XB” appears, under which some indecipherable initials and the date “8/5/07” appear.
The other document, which appears from the transcript to form part of Exhibit B, is a one-page handwritten document headed “Minute of Order”. That document clearly contemplated the respondent being imprisoned and set out a regime whereby the child would see the respondent, albeit not on a face to face basis whilst ever the respondent was incarcerated. The terms of the document are consistent with the learned Federal Magistrate’s description of the orders sought by the appellant in the event of the respondent being incarcerated.
It is reasonably apparent that the document provided by Counsel then appearing for the respondent at all material times made clear the regime of non-face to face time to be spent between the respondent and the child in the event of the respondent being incarcerated. None of the provisions of the three page handwritten document, which undoubtedly formed part of Exhibit B, could have been implemented in the event of the respondent being incarcerated.
The appellant at all material times maintained her opposition to face to face time being spent between the respondent and the child during such times as the respondent was incarcerated. Nothing to which this Court has been referred, or discerned for itself, suggests that the absence of submissions on behalf of the appellant could have been referable to any mistaken belief by the learned Federal Magistrate that the appellant had in any way resiled from her opposition to face to face time to be spent between the respondent and the child.
Unsurprisingly, the principles of natural justice have been the subject of considerable judicial consideration.
In National Companies and Securities Commission Ltd v News Corporation Ltd (1984) 156 CLR 296 at 312 Gibbs CJ said:-
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
In Kioa v West (1985) 159 CLR 550 at 612 Brennan J said that:-
The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.
In Allesch v Maunz (2000) 203 CLR 172 at 184 – 185 Kirby J said:-
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties. (footnotes omitted)
In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 the High Court (Mason, Wilson, Brennan, Deane & Dawson JJ) said:-
That general principle [entitlement to a fair trial] is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, 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.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
As the authorities make clear, the opportunity to be heard prior to a decision being made is fundamental to our notions of justice. The opportunity to be heard rather than the acceptance of such opportunity appears to be the focus of attention. A person who has the opportunity to be heard, but declines or otherwise fails to do so will rarely be able to complain that he or she has been denied natural justice.
As the transcript of this case makes clear, the learned Federal Magistrate at no time expressly invited Counsel then appearing for the appellant to make submissions. Equally, there is no doubt, the learned Federal Magistrate did not decline or otherwise refuse to hear submissions on behalf of Counsel then appearing for the present appellant. Unfortunately, as is not in doubt Counsel then appearing for the present appellant did not seek the opportunity to make submissions, or object to the failure of the learned Federal Magistrate to extend the opportunity to her to do so. It is also clear beyond doubt that the learned Federal Magistrate appreciated that there was a significant dispute between the parties.
The critical question in the circumstances of this case is whether, albeit not necessarily through any fault of the learned Federal Magistrate, the appellant was denied natural justice. Whether the focus should be on the absence of any invitation from the learned Federal Magistrate to make submissions, or on the failure of the Counsel then appearing for the present appellant to assert the right of the appellant to make submissions is an interesting question, but one which can remain unanswered.
The transcript of the proceedings reveals that the appellant did not have a realistic opportunity to make submissions relevant to the learned Federal Magistrate’s decision before it was made. How that came about, though curious, is not in doubt. His Honour did not issue the invitation, and Counsel then appearing for the appellant did not seek it. It cannot be concluded that any submissions made on the appellant’s behalf could not have led the learned Federal Magistrate to reach a different conclusion. The case was finally balanced on any view of the evidence, including the expert opinion evidence. In the light of Kirby J’s comments in Allesch (supra), the Court inclines to the conclusion that the appellant was not afforded natural justice in the hearing before the learned Federal Magistrate. Concluding, as it does, that there was an unfortunate absence of “fairness in all the circumstances” (National Companies and Securities Commission (supra)), this Court finds this challenge made out.
A question arises as to whether the appellant ought now be permitted to successfully raise a natural justice complaint in circumstances where her then Counsel failed to seek the opportunity to make submissions, or to protest against the learned Federal Magistrate’s failure to afford Counsel that opportunity.
There is no reason to doubt that, had Counsel then appearing for the appellant sought to be heard prior to the case being decided, his Honour would have permitted submissions to be made. On the other hand, it could be suggested, given the principles of natural justice, particularly as Kirby J has summarised them in Allesch (supra), that the learned Federal Magistrate ought to have at least inquired, whether, though not having sought to do so, Counsel then appearing for the appellant wished to make submissions. Whatever conclusion is reached, the Court is left with an enduring acceptance that the process lacked the “fairness” required by the principles of natural justice.
In this Court’s view, although her then Counsel undoubtedly contributed to such unfairness, the appellant should be allowed to rely upon a natural justice challenge to the learned Federal Magistrate’s decision in the circumstances as they emerge from the transcript. There may be cases where the conduct of the case on behalf of a litigant at trial will disentitle the litigant to successfully agitate a natural justice complaint. The conduct of Counsel then appearing for the appellant in this case however was not such as would disincline the Court to allow the appellant’s natural justice complaint to be successfully raised.
Whilst it is regrettable, given the reality that the appellant, albeit with the benefit of hindsight, could so readily have been afforded natural justice, the importance of the right to be heard by way of submissions prior to the court making a decision, for reasons which Kirby J has so clearly explained, justifies the Court allowing the complaint to be successfully raised.
Conclusion
The case before the learned Federal Magistrate could, on the evidence before him, have been decided in favour of either party. There was, as his Honour clearly realised, no entirely satisfactory solution available to him. It may well be that, in the re-exercise of discretion, a Federal Magistrate would reach the same conclusion as did Federal Magistrate Halligan on 8 May 2007. More significantly for present purposes however, the evidence does not establish that upholding the appellant’s appeal and ordering a new trial would “inevitably result in the making of the same order” (Stead (supra)) as the order which gave rise to the present appeal.
It is common ground that, if the appeal was successful, a rehearing should result. It is also apparent that matters raised by Counsel for both parties that each party would seek to adduce further evidence prior to the re-exercise of discretion by a Federal Magistrate in accordance with Allesch (supra). This Court is not in a position to undertake that exercise. It is common ground that any re-exercise of discretion should result from a rehearing before a Federal Magistrate.
Costs
It is common ground that if the appeal succeeded each party should have a costs certificate pursuant to the relevant statutory provisions. It is also appropriate to order costs certificates for the rehearing be issued to each party.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.
Associate:
Date: 8 November 2007
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