Authorities Bearing on the Principles of Procedural Fairness
69The approach taken in the criminal law is a useful starting point (although that approach will certainly not be determinative of the issues in this matter).
70An essential principal of procedural fairness in criminal law matters is that a trial for an indictable offence, being the whole of the proceedings including the sentencing proceedings, has to be conducted in the presence of the accused: Lawrence v The King [1933] AC 699 at (708). Limited exceptions include when the conduct of the accused renders it impossible to continue to trial: Eastman v The Queen (1997) 76 FCR 9 at (44); R v Cornwell [1972] 2 NSWLR 1 at (3) (except in the case of a sentencing hearing), or where the accused has escaped from custody (which may amount to a waiver): McHardie and Danielson [1983] 2 NSWLR 733 at (745). However, it has been held that, even in a charge of misdemeanour, there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused; the accused must be present to hear the case made against him and to have the opportunity, having heard it, of answering it: R v Lee Kun [1916] 1 KB 337 at (341).
71Civil proceedings require a separate consideration.
72The appellant relied upon a recent decision of the Supreme Court of Georgia in Kesterson et al. v Jarrett et al. (Supreme Court of Georgia, United States of America, Case Number S11G05090, 18 June 2012) ("Kesterson") in which the Court found that a party may not be denied the right to be present during proceedings with a jury at trial based upon a concern that her physical and mental condition may have evoked undue sympathy from the jury and, thereby, improperly prejudiced the other party. The case involved a young child with cerebral palsy who, along with her parents, had sued the respondent for medical malpractice. In considering the issue on appeal, Nahmias J noted (at 6):
... The right of a natural party to be present in the courtroom when her case is being tried is deeply rooted in the law of this Nation and, if anything, even more embedded in the law of this State. It has been treated as a component of the due process of law in both criminal and civil cases since the early decisions of this Court.
73It was submitted by Mr J Murphy of counsel, who appeared on behalf of the appellant, that the position as articulated by Nahmias J in Kesterson was no different to the common law position in Australia.
74Conversely, it was submitted by Mr P Ginters of counsel, on behalf of the respondent, that the appellant's submission in this respect was overstated. The decision in Kesterson alone, it was submitted, could not be said to represent the common law position in Australia, but, rather, reference must be had to the Australian authorities which have developed in this area.
75The principles in Kesterson were stated in circumstances where the party in question was represented by a legal practitioner. Nonetheless, some caution needs to be expressed in accepting, as Mr Murphy contended, that this decision represents the common law practice in Australia. We agree with Mr Ginters that particular attention needs to be focussed on Australian authorities.
76Before turning to a consideration of those authorities, however, we would mention two English authorities (we shall discuss some other English authorities when discussing the decision in Kingscape Holdings Pty Ltd v Gary Kenneth Smith and Don Samuel Evill [2001] WAIRComm 3532).
77Grimshaw v Dunbar [1953] 1 QB 408; [1953] 1 All ER 350 ("Grimshaw") involved a landlord who had brought an action against a tenant to recover possession of property on the ground that the tenant was in arrears with his rent. The tenant defendant was advised by a court official, upon attending at the county court and paying the arrears of rent in full to the court, that it would not be necessary for him to attend the hearing since the summons would be dismissed by reason of the payment. In his absence, after hearing the landlord/plaintiff's evidence, the judge made an order for possession. On appeal, a question arose as to whether the tenant ought to be granted a new trial in the circumstances. Jenkins LJ stated (at 416):
... a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case - no doubt on suitable terms as to costs, as was recognized in Dick v. Piller. ...
78It was contended by the respondent that Grimshaw was distinguishable from the present matter, given that the prima facie entitlement identified by Jenkins LJ was one that was recognised in the context of a case where there had been no appearance by a party (and, further, no appearance by a party accidentally). As such, the absent party was denied his entitlement to dispute his opponent's case, cross-examine his opponent's witnesses, call his own witnesses and give his own evidence. The circumstances which led to the tenant's absence in Grimshaw and the consequences of his absence were, it was submitted, very different from what occurred in the present case.
79Whilst there are clearly some different factual circumstances arising in Grimshaw, we do not see why the principle endorsed by the court would not have some applicability to the present proceedings. Whilst not absent from the whole of the hearing before the TAB, the appellant was not present for the entirety of the respondent's evidentiary case. As a result, although his entitlement to call his own witnesses and give evidence before the TAB was not affected, he was shut out from hearing the evidence of the respondent's witnesses and giving instructions, as required, to his counsel during cross-examination. The distinction drawn by the respondent between the circumstances in Grimshaw and those in the present case is, in this respect, limited. As will be discussed below (in relation to Pochi), it is clear that an essential aspect of the principle that a party to proceedings is entitled to be present throughout the conduct of those proceedings is to ensure that the party has the ability to contradict its opponent's case. In the present case it matters not (for the purposes of ground one) that the appellant had the opportunity to be present in the proceedings to give his own evidence, but, rather, it is material that his opportunity to contest the evidence of the respondent was constrained in the manner we have previously described. This issue will be revisited below.
80In R (On the Application of Elvington Park Ltd) v York Crown Court [2011] EWHC 2213 (Admin), Judge Langan considered an application for judicial review, made by Elvington Park Ltd, to quash a decision of the Crown Court on the basis that the company had been denied procedural fairness by having their witnesses excluded from the trial whilst witnesses for the respondent were allowed to remain in court. The excluded witnesses included the company secretary, who was responsible for instructing counsel for the company. In his decision, Judge Langan referred to the case of Tomlinson v Tomlinson [1980] 1 WLR 322; [1980] 1 All ER 593 Fam Div at 596 in which Sir John Arnold P (Wood J agreeing) noted (at 326) that, in the context of family law proceedings, if an application is made, witnesses should be excluded from the proceedings for the period prior to giving their evidence. His Honour went on to note, however, that "[t]his of course does not apply and never has applied to the parties themselves or their solicitors or their expert witnesses. Those are never excluded from the court." Judge Langan also referred to the case of First Tier Tribunal (Tax Chamber) in Mobile Export 365 Ltd v Commissioners for HMRC [2010] UKFTT 367 at [52] - [53] in which the Tribunal noted, in relation to a corporate litigant, that it was open to question whether it had the power to exclude any officer of a company from a hearing involving that company.
81However, It was ultimately held by Judge Langan that, whilst the exclusion of a party from proceedings was, prima facie, unacceptable, the exclusion of the company secretary did not constitute a denial of procedural fairness (rather, he referred to it as a "procedural accident" (at [33])) because the direction that the witness remain outside the hearing room was given by a court officer, not the Court. In any event, the direction of the officer was intended for witnesses from both sides and there was no suggestion that the company secretary's position was brought to his attention. Further, the question of the company secretary's absence could have been, but was not, raised with the court by counsel for the company and it was held (at [36]) that the "failure to take an obvious point is properly to be regarded as an election not to take it". Finally, it was held that, because there was no evidence that the outcome of the matter would (or even might) have been different had the witness not been excluded, the conduct of the trial had not placed the companies at any significant disadvantage.
82We now turn to Australian authority.
83In Escobar v Spindaleri (1986) 7 NSWLR 51 ("Escobar"), the Court of Appeal heard an appeal from a decision of the Compensation Court in which Manser J had entered an award in favour of the respondents to an application for compensation brought by the appellant. An issue raised on appeal related to an exchange which had taken place between Manser J and counsel for the appellant at first instance during which Manser J indicated, at the completion of the appellant's evidentiary case, that he would dismiss the application if no further evidence was called by the appellant, to which counsel for the appellant responded by saying "[y]our Honour can do what you like". Manser J then dismissed the application.
84On appeal, the appellant complained that Manser J had dismissed the application prematurely and without affording counsel the opportunity to address which resulted in a denial of procedural fairness. The Court (Kirby P, Glass and Samuels JJA) agreed that a denial of natural justice may arise when a court proceeds to a decision without affording counsel an opportunity to address. It was also held by Kirby P and Glass JA (Samuels JA dissenting) that counsel had not positively waived his right to address the Court and that the appeal should be allowed and a new trial should be ordered (we shall consider the issue of waiver further in due course). In relation to procedural fairness, it was noted by Kirby P (at 57 - 58):
The importance of having a fair trial at which a party can put his case properly before the judge was stressed by the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 at 67. This attribute of the administration of justice was recently emphasised by the High Court of Australia in Stead v State Government Insurance Commission (1986) 60 ALJR 662 at 663-664; 67 ALR 21 at 23. It cannot be said with assurance that a dialogue between the trial judge and counsel would have had no effect upon the decision of the trial judge in this case. To so conclude would be to deny common experience in the courts and the value which is attached to oral argument and persuasion. In Stead, the High Court (Mason, Wilson, Brennan, Deane and Dawson JJ) observed (at 664; 24):
... 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.
In the present case there were real issues of fact to be resolved as to the credit of witnesses and the conclusions to be derived from adverse decisions on their credit. It was thus inappropriate and unjust to proceed to a conclusion in this case without affording a full opportunity for argument. Yet this is what the trial judge did. The impertinent observation by counsel inviting the trial judge to do what he liked was no justification for his Honour's acceptance of that invitation. The proper course to have followed, in the circumstances, was to have invited argument. By failing to do so, a breach of a basic requirement of natural justice occurred in this case.
85The factual circumstances which arose in Escobar are distinct from those which arose in the present case. However, the principles upon which the Court of Appeal determined that there had been a denial of natural justice in that case are relevant and applicable here. Significantly, the Court emphasised (citing the High Court's decision in Stead v State Government Insurance Commission [1986] HCA 54; [1986] 161 CLR 141 ("Stead"), to which we shall return) that, whilst not every departure from the rules of natural justice will justify a retrial, a retrial will be warranted in circumstances where it is not possible to conclude that compliance with natural justice requirements would have made no difference to the decision reached by the trial judge. Consistently with the conclusion reached by the Court in Grimshaw, the Court of Appeal also noted that the ability of a party to properly put their case was an essential element of ensuring a fair trial. As already noted, the appellant's ability to contest the evidence of the respondent, and, therefore, it must follow, his ability to properly put his case as a whole, was constrained by his exclusion from the proceedings during the presentation of the respondent's evidentiary case. It must be considered, however, whether the presence of the appellant's counsel could be said to have overcome this problem.
86In Pochi, Brennan J considered whether, in the context of an appeal against a deportation order made under the Migration Act 1958 (Cth), the Administrative Appeals Tribunal ("AAT") might appropriately exclude the public and the applicant under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). Section 35(2)(a) of that Act was in the following terms (in Pochi at (507-508):
Section 35(2) of the Administrative Appeals Tribunal Act confers the power to exclude the public and an applicant from a hearing in which evidence is to be given against him. It provides:-
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present;
...
87It will be observed that s 35(2)(a) of the AAT Act is not dissimilar in terms to s 162(2)(b) of the IR Act. We shall return to that consideration.
88In Pochi, Brennan J determined to receive evidence from a Detective Senior Constable in the absence of the applicant on the basis that it was necessary, in the public interest, to protect the sources of all information used to combat crime (the Detective Senior Constable was an experienced officer of the New South Wales Police Force who served with the New South Wales Drug Squad and performed duties with the New South Wales Royal Commission into Drugs). Nonetheless, the applicant's counsel and solicitors were not excluded, but were prohibited from conveying the evidence to their client (at 507, 512 and 513).
89In the course of making that ruling his Honour discussed the law and principles governing his decision. His Honour observed (at 508 - 510):
To exclude the public from a hearing is a serious step, for the Tribunal is required by statute (s 35(3)) to "take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be in public". This is a principle which is binding upon courts of justice (see R v Tait Federal Court of Australia, 1 May 1979, unreported), and which is calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it.
Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him -a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal. In Commissioner of Police v Tanos (1958) 98 CLR 383 at 395, 396 Dixon CJ and Webb J said: For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 at 194 Byles J said that a long course of authority established 'that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature' ... The general principle has been restated in this court with a citation of authority in Delta Properties Pty Ltd v Brisbane City Council (1955) 95 CLR 11 at 18. It is hardly necessary to add that its application to proceedings in the established courts is a matter of course. But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment": see also Kanda v Government of Malaya [1962] AC 322 at 335, et seq; Shareef v Commissioner of Registration of Indian and Pakistani Residents [1966] AC 47 at 61. In T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992, Lord Denning MR at 995 insisted that exemption from cross-examination upon evidence before a tribunal can be justified only if the affected party nevertheless has "a fair opportunity of commenting on it and of contradicting it". There are, however, exceptions to the general rule which requires a party to have a fair opportunity of meeting the case against him - exceptions of varying content turning upon a variety of circumstances and statutory provisions. The exceptions were referred to by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1962-1963) 113 CLR 475 at 503, 504: "And notwithstanding what Lord Loreburn said in Board of Education v Rice [1911] AC 179 at 182 about 'always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view' the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject matter: cf Ridge v Baldwin [1963] 2 WLR 935 at 947. As Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 in a passage approved by the Privy Council in University of Ceylon v Fernando [1960] 1 All ER 631 at 637, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: 'the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth'. What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances."
And in Salemi v Minister for Immigration and Ethnic Affairs (1977) 14 ALR 1, Gibbs J said at 19:-
The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles: cf Durayappah v Fernando [1967] 2 AC at 350 ...
90His Honour also observed (at 510 - 511):
Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases - that is to say, where "the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public" cannot be applied. Some of these exceptional cases are statutorily defined: see, for example, the Insurance Act 1973 s 63(14).
To exclude a party, a further criterion must be satisfied. As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. This criterion is not easy to satisfy though it is possible to do so. The criterion is not easy to satisfy because an applicant's interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears.
91It was contended by the respondent that Pochi was distinguishable from the circumstances of the present matter. Brennan J's observations, it was submitted, were addressed to a situation where a party was excluded from a hearing by virtue of the exercise of a statutory power by the AAT whereas, in the present case, the appellant's counsel, when asked, indicated he had no objection to the appellant being outside the hearing room. Further, Brennan J was considering a situation where the excluded party's legal representatives, whilst permitted to remain in the hearing room, were prohibited from disclosing to their client the evidence given whilst he was excluded. In contrast, in the present matter, it was submitted, Ritchie C had made express provision for the appellant's counsel to seek instructions from the appellant as to the evidence disclosed in his absence.
92We see no reason why the general principles stated in Pochi would not be applicable in the present matter. We have found no authority to the contrary (we will return to the decision in SAAP below) and the statutory provisions of s 35(2)(a) of the AAT Act and s 162(2)(b) of the IR Act confer similar powers vis á vis the closing of proceedings on the respective Tribunals governed by the provision of those Acts. It has been held by the Commission, in relation to s 162(2)(b), that it is a fundamental rule that the administration of justice must take place in an open court, and that legal proceedings should only be heard in private if it is clearly required by the dictates of justice or if justice will otherwise be defeated: Stonham v Speaker of the Legislative Assembly of New South Wales (No 2) 90 IR 334 (at 353); X v NSW Department of Education and Training 89 IR 1 (at 8). Whilst, on those authorities, the exclusion of the public will not be readily justifiable, as noted by Brennan J, serious though it may be, "the exclusion of a party from a hearing which affects his interests is a much graver step" (at 508).
93What Pochi makes clear, however, is that the general rule which requires a party to be present and to have a fair opportunity to meet the case against him is not universal. Rather, the application of that rule, and what will be fair in a given situation, depends upon the particular circumstances of a case including any relevant statutory provisions (Pochi at 509, citing Kitto J in Mobil Oil Australia Pty. Ltd. v Federal Commissioner of Taxation (1963) 113 CLR 475, and, further, see a previous reference to more recent authority therein). However, it is apparent that the exclusion of a party to proceedings will constitute a denial of natural justice where that exclusion results in the party being denied "a full opportunity to cross-examine upon, to comment on or to controvert the case against him" (at 508). Similarly, the exclusion of a party from cross-examination will not be justified if the party is not, nevertheless, afforded "a fair opportunity of commenting on it and of contradicting it" (Pochi at 509 citing Lord Denning MR in T. A. Miller Ltd. v Minister of Housing and Local Government [1968] 1 WLR 995). It was noted by Brennan J that an applicant's interest in receiving a fair hearing can be overridden only by another and superior interest, for example (as occurred in that case), the interest of the public in protecting police sources (at 511).
94It is true, as contended for by the respondent, that there is a factual distinction between Pochi and the present case, given that the applicant's lawyers in Pochi were precluded from consulting with their client about the evidence presented in his absence. Brennan J specifically referred to counsel in Pochi not being excluded and, hence, it may be assumed that that fact played some role in his decision. We do not consider, however, that this consideration should result in a distinction being drawn between Pochi and the present matter in the manner contemplated by the respondent. Brennan J stated (at 508) that the exclusion of a party from a hearing which affects his interests, even if his legal advisers are permitted to remain, would, in the absence of statutory authority, be an indefensible denial of natural justice.
95What was central to the ruling by Brennan J in Pochi to exclude the applicant was the nature of the evidence given and its public interest implications. No such factor may be found in the present case. The only basis for the exclusion of the appellant that may be gleaned is that the appellant may have received some advantage in hearing the respondent's evidence given in cross-examination by the appellant's counsel. (Putting aside the merit of this consideration as a factor in excluding the appellant in this case, it cannot be said to be of the same cogency as the factors taken into account in Pochi. It is of a distinctly different character and nature (that is, it is of significantly less force))
96In any event, it cannot be said, in the present case, there existed particular or special circumstances warranting the exclusion of the appellant (in fact, he was excluded for the whole of the respondent's evidence) or that allowing counsel for the appellant to disclose the details of the evidence from which he was excluded, as opposed to allowing him to remain present, afforded the appellant, as described in Pochi, a "full opportunity to cross-examine upon, to comment on or to controvert the case against him" (Pochi at (508) per Brennan J). Apart from the appellant being afforded the opportunity to provide instructions to his lawyers so as to permit a full and proper opportunity for the oral evidence, per se, of the respondent to be controverted as the evidence unfolded and accumulated, his presence would have been appropriate to deal with issues such as body language, inflections of voice or other nuances in the evidence; some of which stimulated an objection by the appellant's counsel at the commencement of the respondent's case. (None of this discussion deals, of course, with the question of waiver, to which we will return.)
97The respondent submitted, furthermore, that the observations of Brennan J in Pochi should be read with some circumspection in light of the decision of the High Court in SAAP.
98In SAAP, the High Court discussed the approach at common law to natural justice rights. In that case, an Iranian citizen who had applied to the Administrative Review Tribunal ("ART") for a review of a decision of the Minister not to grant her a protection visa was asked to leave the room whilst evidence was given by her daughter. The ART subsequently raised with the applicant several matters about which the applicant's daughter had given evidence which were potentially adverse to her case, and invited the applicant to respond orally. Ultimately, the ART rejected the application for review based, in part, on information obtained from the evidence given by the applicant's daughter.
99On appeal to the Federal Court (in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577), Mansfield J assumed that the rules of procedural fairness at common law applied to the decision making process of the ART. His Honour concluded that those common law rules were not breached, observing (at [43]):
... The applicant had an opportunity to put her case, and was aware of the matters which were of significance to her case which emerged from the evidence of her elder daughter. She also had an opportunity of responding to those matters, partly by what was put to her during the hearing and partly by being able to make submissions about those matters following the hearing...
100The majority in SAAP (McHugh, Kirby and Hayne JJ) determined the appeal upon the basis that the procedure adopted by the ART breached the requirements of s 424A of the Migration Act (see McHugh J at [77]; Kirby J at [154] adopting the decision of Hayne J; and Hayne J at [203]). The decision of the ART was declared invalid.
101In consequence, McHugh and Hayne JJ found it unnecessary to consider the general requirements of procedural fairness. Kirby J, in contrast, commented that, whilst it was unnecessary to reach any final conclusion on the availability of a complaint of procedural fairness under the common law in the circumstances of the case, he was inclined to believe that procedural unfairness had occurred. Relevantly, his Honour found (at [171] - [172]):
171. Having regard to the conclusion on the statutory issue, it is unnecessary, in the circumstances of this case, to reach any final conclusion on the availability of a complaint of procedural fairness under the general law and, if available, to decide whether that complaint was made out. However, in passing this issue by, I would not wish it to be thought that I regarded the appellants' complaints under the general law as lacking substance.
172. An analysis of the sequence of the proceedings before the Tribunal and what the Tribunal member told the first appellant in Woomera alongside the reasons of the Tribunal in this case inclines me to the belief that procedural unfairness, outside the requirements of s 424A, occurred in this instance. It may have arisen because of the pressures of time imposed on the Tribunal as evident in the final exchange between the Tribunal and the first appellant and her agent. However that may be, it is certainly open to interpret that exchange as being a promise to fulfil the kind of obligation that s 424A envisages. In the event, there was no communication between the end of the hearing and the decision of the Tribunal six weeks later, in writing or otherwise. Section 424A was, as the Federal Court found or assumed, breached.
102It was found by Gleeson CJ, in his minority judgment, that the case was governed by the rules of procedural fairness and not by s 424A (at [22]). However, his Honour concluded that there had been no successful challenge to the first instance decision on procedural fairness grounds. Dismissing the appeal, his Honour stated (at [14]):
The reasons given by Mansfield J for concluding that there was no want of procedural fairness are compelling. No successful challenge has been made to that aspect of his Honour's decision, which was accepted by the Full Court. However, in this Court the first respondent challenged the acceptance, both by Mansfield J and the Full Court, of the proposition that there had been a contravention of a requirement of s 424A. The basis of this challenge was that s 424A did not speak to the circumstances that existed at the hearing, and it was the rules of procedural fairness, not s 424A, that governed the conduct of the Tribunal Member in those circumstances. The competing view, accepted by Mansfield J and the Full Court, is that s 424A operates before, during and after a hearing, and must be complied with if the situation it addresses arises at any time from the making of the application for review up to the final decision.
103Gummow J held that what had occurred at the ART did not enliven s 424A (at [124]). Further, his Honour found that, in the circumstances of the case, given the applicant was given the opportunity to contradict as to particular aspects of the evidence which were adverse to her claim, the applicant was not denied procedural fairness (at [140]). His Honour found:
In short, the requirement that the first appellant withdraw from the hearing room during the questioning of her elder daughter did not, as it transpired, deprive her of the opportunity to learn of material adverse to her claim or to comment upon it.
104It follows that the majority in SAAP found that the exclusion of the applicant was a breach of the requirements of the Migration Act and, therefore, did not make findings as to whether there had been a breach of procedural fairness in the circumstances. As we have noted previously, there was no such statutory right in the present case. SAAP and the present case are, on that basis, factually distinct.
105In considering the issue of procedural fairness, Gummow J held, in dissent, that the exclusion of the applicant had not constituted a denial of natural justice (in contrast to the view reached by Kirby J). The finding of Gummow J was based upon his Honour's view that, "as it transpired", the applicant had been provided with an express opportunity to respond to the evidence from which she was excluded which was adverse to her claim (Gleeson CJ, although satisfied the requirements of procedural fairness applied, did not actually make a pronouncement (by his final order) on whether there had, in fact, been a denial of procedural fairness in that case). There are differences between the factual circumstances considered by Gummow J and the present matter. Whilst counsel for the appellant was given the opportunity by Ritchie C to consult with his client prior to the appellant commencing to cross-examine the respondent's first witness, it is not apparent, as earlier noted, that any further steps were taken by the Commissioner to ensure the appellant was aware of the issues arising during the course of the hearing undertaken in his absence. The Commissioner did not advise, as in SAAP, of any particular issues arising from the respondent's evidence that the appellant should address, and it is not apparent that any further opportunities were provided for counsel to further consult with his client as to the balance of the witnesses.
106In any event, it is difficult to understand why, as contended by the respondent, the decision in Pochi ought to be viewed with circumspection in the light of the decision in SAAP. The findings made by Kirby and Gummow JJ (albeit in obiter and dissent respectively) as to whether there had been a denial of procedural fairness were based upon their Honours' views as to whether the applicant had been afforded an adequate opportunity to contradict the evidence given against her. That approach does not limit (but actually conforms to) the principles enunciated by Brennan J in Pochi in this respect. As we have mentioned, the factual circumstances differ here from both Pochi and SAAP.
107The respondent also placed reliance upon the decision of Wilcox J in Australian Postal Commission v Hayes and Another [1989] FCA 176; (1989) 23 FCR 320 in contending that, had the appellant been allowed to remain present in the proceedings for the presentation of the respondent's evidentiary case, the respondent would have suffered a denial of procedural fairness. We do not consider that conclusion may be reached in the particular circumstances of this case (as we will further discuss) or upon the basis of that authority.
108In Hayes, Wilcox J considered an application to review a decision of the AAT whereby it was directed that a film in the possession of the applicant be shown to the second respondent at the commencement of her evidence in chief. In the proceedings before the AAT, there was an issue between the parties as to the extent of the injuries suffered by the second respondent. The applicant desired to confront the second respondent in cross-examination with the film which, it was alleged, documented her physical abilities during the period she was said to have been suffering from injuries. It was held by Wilcox J that, because, in the proceedings before the AAT, much might have depended upon the credit of the second respondent and that her credit would be tested if the film was shown to her during the course of (as opposed to prior to) her cross-examination, the direction given by the AAT denied the applicant procedural fairness because it so fettered the proposed cross-examination of the second respondent that the evidence could not be properly tested.
109It was the submission of the respondent that the present case was analogous to the situation in Hayes, because, as would have occurred if the second respondent in that matter had been permitted to view the film prior to being cross-examined, the appellant, had he been permitted to remain present, would have been afforded an unfair advantage in knowing the respondent's case. That submission is illogical on two levels. First, the appellant had the respondent's case in writing prior to the hearing before the TAB. The only evidence which the appellant had not seen was the supplementary evidence given viva voce by the respondent's witnesses. It is difficult to accept that, in order to prevent some unfair advantage, the appellant should have been prevented from knowing that supplementary evidence in circumstances where he already had access to the written evidence upon which it was based. That conclusion is consistent with the discussion in Hayes at [27], where Wilcox J noted the Tribunal's statutory obligation to give all parties a reasonable opportunity to present their case was paramount and, whilst there may be exceptional circumstances which justify the temporary suppression of a document or particular piece of evidence, openness via the full and early disclosure of all material documents is ideal.
110Secondly, the respondent's contention, in this respect, becomes more implausible when a closer analysis is undertaken. It is material that, in the present matter, what the appellant was deprived of, when absent from the hearing room at the direction of the TAB, was the ability to know the responses of the respondent's witnesses to his own questions (asked through his counsel in cross-examination) about the materials already filed (and any new evidence which may have arisen from the responses given to his counsel's line of questioning). If the circumstances in the present case were analogous to those in Hayes, and the respondent had a piece of evidence which it did not wish the appellant to see (equivalent, for example, to the film in that case), that issue would manifest only at the time when the appellant was called to give his evidence, and not during the respondent's evidentiary case.
111In considering the issue of procedural fairness, a crucial question (to which we have referred throughout this judgment) is whether the appellant was afforded a fair opportunity to correct or contradict any relevant evidence prejudicial to him (that question was referred to by Wilcox J in Hayes at [18], citing Kioa at 569 per Gibbs J). What is at issue in the present case is how the direction of Ritchie C to exclude the appellant affected his capacity to cross-examine the respondent's witnesses through his counsel and to have a full opportunity to contradict the respondent's evidence. Hence, when seen in this light, if Hayes is authority for the principle that respondents in proceedings are entitled to procedural fairness (which can not be denied), that is merely a gloss, in the circumstances of the case, upon the true issue. In any event, even if it could be said that the appellant would have stood to gain a forensic advantage over the respondent if he had been allowed to remain present to hear the respondent's evidence, the gravity of the denial of procedural fairness suffered by the appellant, on balance, outweighed any such denial which may have been suffered by the respondent.
112Hayes may be contrasted to the decision in Kingscape Holdings. In that matter, the Western Australian Industrial Relations Commission heard an appeal from the decision of a single Commissioner. One of the grounds of appeal raised by the appellant corporation was that the Commissioner had erred in law and denied the appellant natural justice by ordering the appellant's instructing officer from the Court prior to and for the duration of the hearing of the respondent's case. The respondent (who was the applicant at first instance) had sought an order that the officer be excluded from the proceedings during cross-examination of its witnesses because matters of credibility would arise and the officer was an active participant in the matter.
113In its decision on appeal, a Full Bench of the Commission referred to a "set of principles" (at [23]) which had developed from the civil and criminal law in relation to the exclusion of parties from court or tribunal hearings. Relevantly, the Commission stated (at [24]):
(a) There is no rule of law in this jurisdiction requiring the exclusion of witnesses if the Commissioner has not exercised its discretion to make an order.
...
(d) Whilst there is doubt about whether the parties may be ordered from the court if they behave improperly, in practice in other jurisdictions they usually remain or, if the party is not an individual but a corporation or organisation, a person is entitled to remain to instruct counsel or conduct his or her own case (see Charnock v Dewings [1853] EngR 580; (1853) 3 C & K 378, 175 ER 597; Selfe v Isaacson [1859] EngR 144; (1859) 1 F & F 194, 175 ER 688; and Taylor "Law of Evidence", 12th Edition (1931) para 1400 n (h)).
...
(h) In The London Chartered Bank v Lavers (1855) SCC (NSW) 884 (selected by Gordon Legge J), the Full Court held that a party to a cause who contemplates giving evidence for himself has a right to remain in court for the conduct of his case and is not liable to exclusion as are other witnesses. That is a view generally taken in this Commission.
...
(i) If a party, or someone competent to instruct, is excluded, except for bad behaviour, it would generally be found on authorities such as The London Chartered Bank v Lavers (op cit) that, since that person is not present to hear the case against him or her, the exclusion of that person will effect a denial of natural justice, because the party is not present to hear the case against him. Further, in such a case, it is not certain that the rule in Stead v State Government Insurance Commission [1986] HCA 54; [1986] 161 CLR 141 (HC) would apply.
114It was found by the Commission in Kingscape Holdings that, although the appellant's instructing officer was excluded from proceedings, the appellant corporation had not suffered a denial of natural justice because the appellant itself was not denied the opportunity to be present to hear the evidence against it through another of its officers or employees. However, the Commission noted (at [27]), relevantly to the present case, "[t]he exclusion of an individual would not be so readily justified."
115We will pause to briefly consider some of the authorities relied upon by the Western Australian Industrial Relations Commission in support of these conclusions.
116In Charnock v Dewings [1853] EngR 580; (1853) 3 C & K 378, 175 ER 597, it was held by Talfourd J that, on constitutional grounds, he had no authority to order the defendants to leave the court as long as they behaved with propriety. In Selfe v Isaacson [1859] EngR 144; (1859) 1 F & F 194, 175 ER 688, it was held by Byles J that an application to have witnesses ordered out of court is to be determined at the discretion of the Court, however, the plaintiff has a right to be in court to instruct his counsel.
117In London Chartered Bank v Lavers (1855) 2 Legge 884, it was held by Stephen CJ, Dickinson and Therry JJ that a party to a cause who contemplated giving evidence for himself had a right to remain in court for the conduct of his case.
118In Stead, as noted earlier, it was the position of the High Court that not every departure from the rules of natural justice at trial will entitle the aggrieved party to a new trial (at 145). A new trial will be justified in circumstances where it can be said that, had the requirements of natural justice been complied with, a different conclusion may have been reached by the trial judge. That determination, it was held, is no easy task, particularly in circumstances where the denial of natural justice involved the acceptance or rejection of the testimony of a witness at the trial (at 145 - 146).
119We should also mention that we were taken to the authority of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; [2007] 232 CLR 189. In that case, in circumstances similar to those which occurred in Grimshaw, the High Court heard an appeal from a decision of the Full Court of the Federal Court involving a family of Lebanese citizens whose applications for Australian protection visas had been refused. After commencing proceedings for a review of the decision to refuse their visas before the Refugee Review Tribunal ("RRT"), the RRT invited the family to appear before it, pursuant to s 425(1) of the Migration Act. On the advice of a rogue, who falsely claimed to be entitled to practice as a solicitor and migration agent, the family did not attend the RRT hearing. By s 426A of the Migration Act, the RRT was entitled, in circumstances where an applicant was invited to appear pursuant to s 425(1) but did not appear, to make a decision on the application to appear before it. Ultimately, in its reasons, the RRT relied on the family's failure to appear as a ground for rejecting the applications for review.
120It was found (in a joint judgment of the Court - Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) (at [48] - [49]) that the provisions of the Migration Act obliging the RRT to invite applicants to appear before it to give evidence and present arguments on the issues arising in relation to the decision under review, and empowering the RRT to make a decision on the review in the absence of an appearance, were centrally important to the legislative scheme set out in Div 4 of Pt 7 of that Act for the conduct of reviews. Further, by s 422B, Div 4 "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters [the tribunal] deals with". The Court went on to hold (at [51]) that the fraudulent conduct of the rogue in his dealings with the family had impaired the operation of the "critically important natural justice provisions" contained in Div 4. It was found, ultimately, that the conduct of the rogue had meant the RRT "was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud 'on' the Tribunal" (at [51]). The RRT was ordered to redetermine the review of the Minister's decision to refuse the family's visas, which included giving the family a fresh invitation to appear before it.
121It was observed by the High Court (at 53]):
... In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.
122The respondent submitted that the High Court had observed that the appeal had turned upon the particular importance of the provisions of the Migration Act and, therefore, that the case of SZFDE was distinguishable from the present case in which counsel for the appellant at first instance stated that he had no objection to the appellant not being present during the hearing whilst the respondent called its evidence. We will return to consider this submission when we elaborate on the authorities relevant to the question of waiver. For present purposes, however, we are of the view that SZFDE is of little assistance in resolving this matter. That case turned upon s 422B of the Migration Act, by which, it was found, Div 4 of Pt 7 of that Act was an exhaustive statement of the requirements of natural justice. In addition, the absence of the party from the proceedings in that case was as a result of the conduct of a rogue.