Denial of natural justice
12 In relation to natural justice, Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed., pp 180-181 has stated:
"Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet."
13 In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) at 628 stated:
"A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise."
14 In relation to procedural fairness, Mason J stated in Kioa that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case (pp 454 and 455).
15 In Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 Grove J stated at para 25:
"There is ample authority that procedural fairness is denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequate opportunity to prepare or present a case: Sullivan v Department of Transport (1978) 20 ALR 323; Opitz v Repatriation Commission (1991) 29 FCR 50; Humphrey v Wills (1989) VR 439."
16 However, whether there is a denial of procedural fairness depends on the circumstances in each case. The plaintiff lodged the application in Sydney. The plaintiff was notified of the date, time and place of hearing with enough time to adequately prepare for the hearing. The plaintiff's request was not that the matter be adjourned to another date but rather the venue for hearing be Sydney in lieu of Queanbeyan. However, the plaintiff was at all times aware that if he did not appear at Queanbeyan the matter would be heard in his absence, and that a postponement of a hearing would not be granted without the consent of the other party unless there were exceptional circumstances. The plaintiff must have been aware that his reasons for the transfer, namely that he could not afford the costs of travel and accommodation to Queanbeyan, and that he had a medical condition, may not considered exceptional by the Tribunal member, yet he was prepared to take the risk. He did not check prior to the hearing date whether the Tribunal had considered his request and if it had what action, if any, had been taken. (There was no medical certificate attached to the letter).
17 Despite the plaintiff's protestations that a statutory declaration would disadvantage his presentation of the case, the amount in dispute was to be $219.18 plus perhaps an unquantified amount. The plaintiff had provided a statement outlining his case which was considered by the Tribunal member.
18 One of the plaintiff's grounds of appeal is that no-one he claims explained about telephone hearing. The defendant in these proceedings filed an originating application from the Small Claims Tribunal ACT dated 23 July 2001 seeking that the plaintiff pay the amount of $344.73 being the amount of outstanding storage fees from February 2001 to 30 July 2001. The plaintiff did not attend that hearing but gave evidence by means of telephone hookups on 13 September 2001, 21 October 2001 and 31 October 2001 (plaintiff's aff para 43). On 31 October 2001 the magistrate gave judgment for the defendant in the sum of $299.67. Thus, the plaintiff was aware of the availability of the telephone hookups in courts and if he wished to canvass the availability of a similar service in the FTT he could have made enquiries.
19 I have concluded that in the overall circumstances, the plaintiff has not established that he was denied natural justice or procedural fairness. The summons and notice of motion should be dismissed.