Procedural Impropriety

Procedural Impropriety

1. Definition: Decisions that do NOT follow correct procedure

   • Rules created by judiciary and never been challenged by legislature, implying they are accepted by it: Fairmount investments: Russell in

2. Rule against BIAS

   • Direct Bias = courts quash decision
     • Financial Interest: Dimes
     • Non-pecuniary Interest: ex p Pinochet
   • Indirect Bias: ex p Hook (tribunal judges/panel - side room)
     • 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

   • Definition: Right to a hearing that is fair and reasonable in the circumstances: Lloyd v McMahon
   • Rights depend on Interest: McInnes v Onslow-Fane - 3 categories
     • Forfeiture Case
       • Right to know the case against themselves and an opportunity to refute evidence granted: Ridge v Baldwin
     • 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
     • 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
     • 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

   • Definition: statutory procedural requirements for exercise must be followed
   • Procedure = Mandatory Requirement - Decision quashed
     • Bradbury: NO COMPLIANCE whatsoever (no notice put up in school at all)
   • Procedure = Directory Requirement - court decides whether to quash the decision
     • Coney v Choyce: compliance + incorrect compliance
     • Soneji: court should consider what Parliament would have intended non-compliance w/ the statutory procedure to invalidate the decision