Annetts v McCann

[10]

In determining whether this Act has excluded the rules of natural justice, two considerations need to be kept in mind. The first is that many interests are now protected by the rules of natural justice which less than 30 years ago would not have fallen within the scope of that doctrine's protection. Thus, it was not until 1969 that the common law rules of natural justice were extended to the protection of legitimate expectations: see Haoucher [11] . It was even later that the common law rules of natural justice were held to apply to public inquiries whose findings of their own force could not affect a person's legal rights or obligations. As recently as 1963, this Court, by majority, held that an inspector, appointed under the Companies Act 1961 Vict., was not obliged, before reporting on a company's affairs, to give the company an opportunity to answer or explain matters which might give rise to adverse findings or comment in the report: Testro Bros. Pty. Ltd. v. Tait [12] . The majority concluded [13] that the investigation of the inspector was not "in the nature of a judicial proceeding in which the rights of the company which is being investigated may be prejudicially affected by a report made to the Minister". It is beyond argument that the view of the majority in that case would not prevail today: see Mahon v. Air New Zealand [14] ; National Companies and Securities Commission v. News Corporation Ltd. [15] . The second matter which must be taken into consideration is that the purpose of the legislature in enacting s. 24 of the Act was to resolve a dispute concerning the rights of interested parties to attend coronial inquests and examine and cross-examine witnesses. At the time that section was enacted, the prevailing, but not universal, view in England was that a coroner had an unfettered discretion to exclude any person from attending the inquest and an unfettered discretion to allow or refuse interested parties to be legally represented at the inquest: see Jervis, The Coroners Acts, 1887 & 1892, 6th ed. (1898), pp. 24-25.

[29]

True it is that a remedy by way of judicial review may protect "legitimate expectations", in the sense of interests which do not amount to legal rights, powers or privileges. That was the sense in which the term was first used, as Dawson J. pointed out in Haoucher v. Minister for Immigration and Ethnic Affairs [16] . When used in that sense, a "legitimate expectation" falls within the category of those interests which, being liable to adverse affection by an exercise of the relevant power, import observance of the principles of natural justice as a condition of its valid exercise. But the protection of a "legitimate expectation" in the sense of an interest not legally enforceable is a consequence of the availability of a remedy to give effect to the statute; the protection of a "legitimate expectation" is not an independent foundation of a jurisdiction to grant a remedy. If the jurisdiction to grant a judicial review remedy is thought to arise from the existence of a legitimate expectation rather than an implied statutory condition, what is the criterion of legitimacy? Legitimacy has been attributed to expectations which originate in specified ways, such as representations, practices and assurances: see Council of Civil Service Unions v. Minister for the Civil Service [17] ; Attorney-General (N.S.W.) v. Quin [18] . But the list of ways in which a "legitimate" expectation may arise is not exhaustive and the characteristic of legitimacy remains undefined. No doctrine of administrative estoppel has emerged. Indeed, the epithet "legitimate" begs the question whether an exercise of the power which disappoints the expectation is conditioned on according natural justice to persons whose interests (including expectations) are affected. To employ the term "legitimate" in this way drives the court to evaluate the sufficiency or reasonableness of the source of the expectation in order to determine whether an expectation is "legitimate" and, on that account, deserving of protection by judicial review remedies. Thus, in Haoucher, expectations that a person would not be deported and that a recommendation that he not be deported would be followed were held to be legitimate "because they were founded on a considered statement of policy made by the responsible Minister in Parliament": per McHugh J. [19]

[54]

I am not prepared to accede to the argument that this Court should tell the Coroner that he should allow the applicants' counsel to address him when it is common ground that there is no suggestion of any finding adverse to the applicants' interest to be made. There was no evidence placed before the Full Court as to the facts canvassed at the inquest. The Court knew nothing of the facts (as some of their Honours stressed in argument) and nothing was placed before the Court suggesting that the Coroner was contemplating the making of any finding unfavourable to the appellants' deceased son or, if it matters, unfavourable to the appellants. The affidavit filed in support of the application for prohibition and mandamus stated the basis on which the Coroner had been asked to hear submissions from the appellants' counsel: The application for a hearing was based on the right of a person granted audience at a Coroner's Inquest to be heard concerning the "result" of the Inquest. In the Full Court that argument was advanced again by the affidavit: It is respectfully submitted that the right to be represented includes the right to be heard and that the Coroner's refusal is unlawful and a wrongful exercise of a discretion if there be one. The basis of the submission was erroneous. Kennedy J. correctly observed: The fact that the coroner properly recognised [the appellants] as having "a sufficient interest in the subject or result of the inquest" and therefore permitted them to attend the inquest personally or by counsel and to examine and cross-examine witnesses does not appear to me to advance the position, for it does not follow that a person who has a sufficient interest to attend has such an interest as would entitle him to address the coroner. Franklyn J. agreed with Wallace and Kennedy JJ. Having regard to the basis of the argument propounded on behalf of the appellants before the Full Court and the fact - recorded by Wallace J. in his judgment - that it was common ground that there was no suggestion of a finding adverse to the appellants' interests, the Full Court was, in my opinion, correct in discharging the order nisi. It is not open to this Court to allow an appeal against an order that, on the material before the Full Court, was rightly made.

Annetts v McCann - [1990] HCA 57 - HCA 1990 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (120 paragraphs)

Parties