Observations as to procedural fairness below
68Given my findings above it is not strictly necessary to consider whether the procedure adopted by the Newall C in the remitted proceedings did, in fact, constitute a denial of procedural fairness. However, both parties fully addressed that question and for completeness, therefore, I will make some short observations as to the issues raised by them.
69It is appropriate to begin this discussion with recognition that in exercising the powers conferred upon it under the TAB Act, the Board was under an obligation to accord procedural fairness: Byrne at [38] and [124(1)]. As the appellant submitted, the opportunity to put his case before the decision-maker is an important feature of a procedurally fair hearing (see Kioa v West at [15] and Coutts at 114, see also Escobar v Spindaleri (1986) 7 NSWLR 51 at 57 ('Escobar')). Further, the opportunity to give oral evidence about a central issue in the case may, depending on the circumstances of that case, give rise to procedural fairness issues (see Escobar at 57 per Kirby P).
70The precise content of that requirement of procedural fairness will, however, vary depending upon the statute governing the exercise of the tribunal's power and the circumstances of a case. As was stated in Byrne, the "content of the principles to be observed must be determined in the light of the statute governing the exercise of the powers and the particular circumstances of the case" (at [41]; see also Kioa v West at 584 per Mason J, 594 per Wilson J, and at 612 per Brennan J). The content of procedural fairness may "fluctuate during the course of particular administrative decision making": Re Refugee Review Tribunal and Another; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 (at [62]).
71Further, in determining the content of procedural fairness in a particular case it should be recalled that procedural fairness is a practical, not an abstract, concept, whereby the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1(at [37]) (per Gleeson J).
72Hence, in assessing the question of procedural fairness raised in this matter, consideration must be given to whether, in the circumstances of the alleged denial of procedural fairness, injustice was done to the appellant in practical terms (see Byrne at [48]) and, more particularly, whether he had sufficient opportunity to put his case in that context.
73In the present appeal, the appellant contended that Newall C's refusal to hear fresh evidence in the remitted proceedings (specifically that relating to the November incident) resulted in a denial of procedural fairness. Although the complaint was so expressed in these proceedings, it must be observed that the Commissioner did not refuse an application which was actually expressed in those terms by the appellant's legal representative below because, as will be discussed, it was limited to an application for a "rehearing" (it being tolerably clear that the appellant was seeking, in substance, a retrial).
74The appeal books filed in these proceedings contained no record of the proceedings below in which the Commissioner adopted the procedure in issue. However, the approach he adopted and his reasoning for doing so were nonetheless reasonably accessible from the uncontroverted submissions of the respondent and the decision of Tabbaa C. From those sources it may be ascertained that the Commissioner informed the parties to the remitted proceedings that he intended to determine the matter upon the basis of the evidence that was before Tabbaa C and would receive written submissions as to matters of fact and law.
75The appellant's legal representative opposed that approach and, in substance, as I have noted, sought a retrial (it was implicit from the appellant's submissions that he was seeking to bring fresh evidence). No application was made, with any particularity, to adduce further evidence regarding the November incident. In particular, leave was not sought from the Commissioner to call further evidence from the appellant, including evidence in the form of the second affidavit which had been refused by Tabbaa C or oral evidence directed to the November incident. Overall, as I have observed, the appellant did not explain with any particularity the content of the evidence he would have advanced if given the opportunity to do so. The Commissioner adopted the impugned procedure for reasons set out earlier in this judgment.
76The contention advanced by the appellant that the impugned procedure constituted a denial of procedural fairness must be considered in this context. Additionally, it should be observed that the Commissioner did not adopt the impugned procedure in a trial of the matter, per se, but did so in the context of a remitter from the Full Bench in RailCorp v Elleray. In the adoption of the impugned procedure, the Commissioner must be taken as possessed of the terms of the decision given in that judgment as well as the principles governing such remitters.
77When considered in that light, and for the following reasons, I do not consider that the impugned procedure involved a denial of procedural fairness:
(1)The approach that the Commissioner foreshadowed was entirely consistent with the terms of the remitter by the Full Bench. In the absence of a direction by the Full Bench that there would be a retrial (and there was no such determination) fresh evidence could only be permitted by leave of the Commission (see Lee at [13]). That the Commissioner gave the parties an opportunity to make submissions on the approach being proposed was consistent with the requirements of procedural fairness.
(2)The appellant's legal representative made no application, as such for leave to adduce fresh evidence as to the November incident from the appellant. The absence of such an application undermines the veracity of the appellant's complaint in this respect for two reasons. First, when faced with a remitter in the terms found in the judgment of the Full Bench it was insufficient for the appellant, in the absence of compelling reasons, to simply propose a retrial, per se: a course contrary to the determination of the Full Bench. Secondly, the complaint of a denial of procedural fairness must be diminished in circumstances where the appellant failed to articulate in clear terms below the very issue about which he now sought to complain.
(3)In any event, in the context of the remitted proceedings, I do not consider the ruling made by Newall C (even if assessed in the light of an actual application for leave to adduce evidence as to the November incident having been made) constituted a denial of procedural fairness because:
(a)It was appropriate for the Commissioner to consider the circumstances in which the receipt of the subject evidence had been refused in the original proceedings before Tabbaa C and the absence of any adverse comment in that respect by the Full Bench (he had the earlier record of the proceedings before Tabbaa C before him);
(b)In particular, the Commissioner was entitled to have regard to whether some aspect of the conduct of the appellant's case (particularly as to the November incident) warranted the exercise of a discretion not to re-open the appellant's case.
(c)The Commissioner concluded, in substance, that the matter should not be re-opened, in that respect, because the parties had been legally represented in the proceedings before Tabbaa C and had "made what were no doubt informed and deliberate forensic decisions about their evidence in chief and cross-examination" (at [10]). The Commissioner did not expand upon this reasoning but his observations were plainly directed to the manner in which the appellant had conducted his case before Tabbaa C and, perhaps, his defence of the proceedings before the Full Bench. The observations were also referable to the decision made by Tabbaa C as to the admission of further evidence by the appellant concerning the November incident. Newall C was, in my view, referring to the fact that the appellant had, it would appear, eschewed any intention to contest the factual basis for the November incident allegations until very late in the programme for the preparation of the hearing before Tabbaa C (at which time he sought to tender the second affidavit absent an adequate explanation for the late service).
(d)These factors constituted a proper basis for the Commissioner to refuse an application by the appellant to call fresh evidence on the November incident, if such an application had been made. They sustain a conclusion that the Commissioner's procedural ruling did not constitute a denial of procedural fairness.
(e)Further, the Commissioner identified that no prejudice would arise from his approach (at [12]). This was a conclusion also open to him, as the appellant did have the opportunity to put his version of the November incident before the Board at first instance by way of counsel's address and his cross-examination of the respondent's witnesses. The parties were also given an opportunity to make further submissions in the proceedings before Newall C.
(4)The Commissioner was entitled to have regard to the principles in the TAB Act and the CP Act which provide support for the prompt disposition of the proceedings before him. Whilst the procedure he adopted could not be justified upon the basis of such principles alone, he was entitled to take those principles into account in formulating an appropriate procedure for the remitted proceedings, particularly when there had not been demonstrated that an injustice may arise (which would warrant a departure from those statutory imperatives).
78In my view, therefore, there is no proper basis upon which to find that the Commissioner's discretion miscarried in this regard.
79Finally, the failure of the appellant to raise this matter with the Board below, or, to a lesser extent, on appeal before the Full Bench, is also consistent with that conclusion. The appellant did not contend before the Board that to not allow a rehearing, or at least to receive evidence from him, would result in procedural unfairness (see the impugned decision at [12]). In this sense, the inability of the appellant to present evidence below was again linked to a failure to fully utilise the opportunity to advance his case rather than to any denial of procedural fairness.
80Hence, applying the principles of procedural fairness to the particular circumstances of the present appeal, there is no merit to the claim that the appellant was denied procedural fairness in the proceedings below.