Procedural Impropriety

Mind Map by , created over 6 years ago

Mind Map on Procedural Impropriety, created by alex.ariel on 05/21/2013.

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Created by alex.ariel over 6 years ago
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Procedural Impropriety
1 Definition: Decisions that do NOT follow correct procedure
1.1 Rules created by judiciary and never been challenged by legislature, implying they are accepted by it: Fairmount investments: Russell in
2 Rule against BIAS
2.1 Direct Bias = courts quash decision
2.1.1 Financial Interest: Dimes
2.1.2 Non-pecuniary Interest: ex p Pinochet
2.2 Indirect Bias: ex p Hook (tribunal judges/panel - side room)
2.2.1 Test: whether ‘fair-minded and impartial observer would conclude there had been a real possibility of bias’: Margill v Porter
3 Right to a FAIR HEARING
3.1 Definition: Right to a hearing that is fair and reasonable in the circumstances: Lloyd v McMahon
3.2 Rights depend on Interest: McInnes v Onslow-Fane - 3 categories
3.2.1 Forfeiture Case Right to know the case against themselves and an opportunity to refute evidence granted: Ridge v Baldwin
3.2.2 Legitimate expectation ex p Liverpool Taxi Fleet: promise to inform must be followed ex p Asif Khan: decision based on reason not listed in guidance, Held, quashed
3.2.3 Application cases Mcinnes v Onslow-Fane: no reason or a hearing was required for refusal boxing licence R v Gaming Board: duty to hold a hearing but not give reasons when refusing casino licence
3.2.4 Further points No right to fair hearing if ruling ONLY preliminary: Lewis v Heffer Right to Reasons: no automatic duty (Hassan), UNNLESS decision looks aberrant (ex p Cunningham) OR reasoning is in the public interest Right to oral hearing IF fair and reasonable in circs: Lloyd v McMahon Cross examination permitted if fairness in circs required: ex p St Germain
4 Procedural Ultra Vires
4.1 Definition: statutory procedural requirements for exercise must be followed
4.2 Procedure = Mandatory Requirement - Decision quashed
4.2.1 Bradbury: NO COMPLIANCE whatsoever (no notice put up in school at all)
4.3 Procedure = Directory Requirement - court decides whether to quash the decision
4.3.1 Coney v Choyce: compliance + incorrect compliance
4.3.2 Soneji: court should consider what Parliament would have intended non-compliance w/ the statutory procedure to invalidate the decision

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