The significance of the denial of procedural fairness to the outcome
102 In evaluating whether injustice may be said to have been occasioned by the denial of procedural fairness in relation to the discrete aspect identified above, the question is whether the denial of the opportunity to be heard on the issue arising under s.32(1)(b) made a difference to the outcome of the proceedings. That test was stated and applied by Gleeson CJ in Re Refuge Tribunal; ex parte Aala (2000) 204 CLR 82 at [88]. In the same case, Gaudron and Gummow JJ at 116 to 117 adopted the approach that it was sufficient, as was stated by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 that "the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome". See also Bridges v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 456 at [10]; Gibson v Repatriation Commission [2000] FCA 739 and Commissioner of Taxation v La Rosa [2003] FCAFC 125 per Hely J at [84].
103 It is well-accepted that all a plaintiff need establish is that the denial of natural justice deprived him or her of the possibility of a better outcome. In order to negate that possibility it is necessary for the Court to conclude that a properly conducted adjudication could not possibly have produced a different result: Stead (supra) at 147 and Fifty Property Investments Pty Limited v O'Mara [2006] NSWSC 428 per Brereton J at [53].
104 As the relevant authorities reveal, the application of that test will very often be difficult to satisfy, especially, for example, where decisions as to credibility are based on erroneous and unfavourable factual assumptions relevant to credibility.
105 Accordingly, it is necessary to take account of the nature of the particular matter that fell for Magistrate Johnson's determination. The matter under s.32(1)(a) involved a question of fact: El Mawas (supra) per McColl JA at [75] and, as her Honour there stated, it is one properly described as a jurisdictional question.
106 There was both evidence presented (Dr Lennings' report) and submissions made by Mr Ozen on that jurisdictional question. Bearing in mind the definition of the expression "mental condition" in s.3 of the Act, the question was whether the plaintiff, at the relevant time, "suffered from a mental condition for which treatment is available on a mental health facility". "Mental condition" is defined in s.3 as "a condition of disability of mind not including either mental illness or developmental disability of mind".
107 Dr Lennings, in his capacity as a psychologist, there being no evidence available to the learned Magistrate of a medical diagnosis by a medical practitioner, opined that the plaintiff presented with a "mood disorder" which he considered to be "moderately severe" in which symptoms of "depression and comorbid anxiety" occurred. He also concluded that the plaintiff had "some impulse disorder behaviour (his gambling) …".
108 Dr Lennings did not explain how the plaintiff's "disorder", as described, might be considered to fall within the definition of "mental disorder" or a "condition of disability of mind" in the terms defined (see above). The psychologist merely asserted that it was of "sufficient severity to bring him into the criteria as outlined in s.32 of … the Act". He also stated "His mood disorder was clearly contributory to the offence and in part helps explain his poor judgment". The substrata for those opinions was not articulated: Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. Nor was there any explanation as to how or in what sense the mood disorder was "contributory". However, in the context of an application under s.32, such deficiencies could only be said to go to the weight to be given by the Magistrate to the opinions, and not to admissibility, the Magistrate being entitled to inform himself as he thinks fit: s.36.
109 Whether or not Dr Lennings' conclusions in these respects are valid, the plaintiff was not, by reason of the particular breach of procedural fairness which I have determined, deprived of the opportunity of having the evidence that he relied upon, namely, Dr Lennings' report, placed before the Magistrate nor was he, on the question of his eligibility under s.32(1)(a), deprived of the opportunity of having counsel's submissions made in relation thereto, these having been placed before Magistrate Walker and noted by Magistrate Johnson who said that he had listened to the tape recording of the proceedings before Magistrate Walker. As earlier noted, there was no objection raised as to Magistrate Johnson's method of proceeding in relying on information garnered from the hearing conducted on 11 September 2007.
110 In relation to the matter under s.32(1)(b), the Magistrate concluded that "the nature of the offences" meant that "this is not an appropriate case to deal with under s.32" (transcript, p.4), adding, at transcript p.5, that if the plaintiff got over "the first hurdle, this is a most inappropriate case to deal with under s.32".
111 The question in this case, so far as the plaintiff is concerned, is whether, by not providing his solicitor with the opportunity to make submissions on s.32(1)(b), that "deprived him of the opportunity of the possibility of a successful outcome": Stead (supra) at 147 in relation to the matter arising under that provision.
112 It is clear that Magistrate Johnson considered that the "nature of the offences" (transcript, p.4) was central in concluding that the case was "not an appropriate case" to be dealt with under s.32. However, it is also important to observe that he also had a clear view that the evidence (which, of course, included Dr Lennings' report), was not sufficient to satisfy the criteria as to the primary issue of eligibility under s.32(1)(a). That conclusion was reached, as I have observed, having heard the recorded submissions of Mr Ozen made on 11 September 2007 on that aspect and Ms Khalil did not seek to supplement those submissions on 11 December 2007.
113 A Magistrate must be satisfied in relation to both matters under s.32(1)(a) and (b). On the findings I have made, there was no breach of procedural fairness in respect of the Magistrate's conclusion on the s.32(1)(a) matter. The Magistrate's determination, which was adverse to the plaintiff on s.32(1)(a), necessarily meant that the application under s.32 could not have succeeded regardless of what the outcome may have been of a properly conducted hearing in relation to s.32(1)(b).
114 It follows that the defect in the hearing in relation to the latter question could not be said to have had any material significance to the outcome of the application. In other words, the breach of procedural fairness to which I have referred in relation to s.32(1)(b) could not be said to have deprived the plaintiff of a successful outcome as the plaintiff did not, on the basis of the Magistrate's assessment (there having been a proper hearing in relation to eligibility under s.32(1)(a)), meet the specified criteria.