A denial of procedural fairness.
159 Secondly, the Plaintiffs asserts that this error resulted in a denial to the Plaintiffs of procedural fairness in that the Board had, in its Provisional View of 23 May 1998, represented that it would receive further submissions and then at 29 July 1998 refused to countenance such submissions. The Plaintiffs' claim that, misled by the terms of the Provisional View and the letter of 26 May 1998, they relied on their supplementary submissions and did not pursue the matters referred to in the Board's order of 29 July 1998. They were denied, they say, the chance to properly argue their case. The Plaintiffs maintain that even if the Board had not stated the view of 23 May 1998 to be a "provisional" view, "so radically different was [the Board's] view of the nature of the Board's function under s119(2) that [the Plaintiffs was] entitled to be heard" [T, 64:45]. While the Board could have, it is argued, published its Provisional View as its final reasons and order, it did not do so.
160 In further support of this second argument, both the Plaintiffs and Defendants, acting reasonably, interpreted the Provisional View and the letter of 26 May 1998 as allowing further submissions on the issues covered in the provisional view, including the construction of s119 of the Strata Titles Act 1973 (see T, 74, where Mr Bouris conceded that the Provisional View misled both sides). Was the Board then required, by the insistence of natural justice, to observe the audi alteram partem rule?
161 The audi alteram partem rule, being an expression of the fair hearing principle, means that, for example an arbitration must allow each party to comment on and contradict the material offered by an opponent (unless the parties otherwise agree): T A Miller Limited v Minister of Housing and Local Government [1968] 2 All ER 633 (there the 'material' was hearsay evidence).
162 Having erred in deciding that it was functus in respect of the construction of s119, the Board was in truth capable of accepting further submissions as to the construction of s119. That it did not, in the result, consider those submissions might be said to have disadvantaged each party equally, and in a way that was inherently possible under s132(2) of the Act in any event. Thus s132(2) of the Act allows the Board to inform itself "with or without any hearing". However, that cannot be determinative in these circumstances. The effect of representing that such further submissions would be considered does have the effect of creating a legitimate expectation in the minds of the parties that the Board would consider those submissions and represents an exercise of the power so to order its proceedings. The representation of the Board, as contained at paragraph 3.20 of the Stated Case, clearly had a bearing on the way in which the parties chose to argue their case (for example, see the further submissions of both parties attached to the Stated Case). To subsequently dismiss those submissions and not give an opportunity to the parties to make further, amended submissions on the matters of fact considered by the Board (see Orders 29 July 1998), was to deny the legal representatives before the Board proper opportunity to argue the case to the best of their ability and in the interests of their clients in accordance with the legitimate expectations engendered. To represent, as the Board did, that it would countenance further submissions in such broad compass as indicated in the Provisional View of 23 May 1998 and then to refuse to consider those submissions or allow further submissions by the Order of 29 July 1998 was, prima facie, in breach of the rules of procedural fairness.
163 Before I decide finally on this matter, though, it is necessary to address the arguments raised by the Defendants in respect of this natural justice point.
164 The Defendants' first argument is that the denial of natural justice point was not taken by the Plaintiffs (see Defendants' Written Outline of Submissions 8 February 2000 paragraph 4.8), is clearly wrong. The issue is raised in the Plaintiffs' contention at paragraph 4.9 of the stated case. The Plaintiffs took the point at paragraph 29 and 30 of its "Outline of Plaintiffs' Submissions".
165 The Defendants further submit that whether or not the Board was functus of the issues in the Provisional View as of 2 July 1998, there has been no denial of procedural fairness. Firstly, it is argued that even if the Board had allowed the further submissions, the orders of the Board would have remained as they now stand. Secondly, it is asserted that while the words of the Provisional View of 23 May 1998 in respect of further submissions were not clear, in the absence of any requirement of law to give the parties an opportunity to submit further evidence and submissions, that the case of the parties had been concluded as of 23 May 1998 and there was no error of law in not giving countenance to those further submissions.
166 I have ruled above that the Board was not functus following publication of the Provisional View on 23 May 1998. It could not, therefore, be said that, as of that date, the case of the parties had been concluded.
167 In respect of the submission that the Board's decision would remain the same even if further valuation evidence had been obtained, it is impossible for this Court to determine either way that such evidence would have influenced the Board's conclusions. If the Board continued to labour under the misconstruction of its task as laid down in s119 of the Act, it seems likely that the Board would have, even in the face of further valuation evidence from the Plaintiffs, reached at least a similar conclusion. However, this Court does not and cannot have before it the evidence necessary to make a determination on this matter. Furthermore, the suggestion that Courts should overlook breaches of natural justice where, in the absence of such breach, the outcome may have remained the same, has been widely criticised (see Aronson & Dyer Judicial Review of Administrative Action (LBC, 1996) at 486-489). The present circumstance is not a "technical breach" of procedural fairness (as was suggested in the case of R v Chief Constable of the Thames Valley Police; Ex parte Cotton [1979] 77 LGR 689 at 350-1). Nor is it a circumstance where the outcome is a foregone conclusion (such as in Mobil Oil Canada Limited v Canada Newfoundland Offshore Petroleum Board (1994) 11 DLR(4th) 1). Furthermore, this present case is diametrically opposite to the situation in Stead v State Government Insurance Commission (1986) 161 CLR 141, where the High Court said:
"By way of illustration, if all that happened at 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": at 145 (per Mason, Wilson, Brennan, Dean and Dawson JJ) as cited in Aronson & Hunter.