Was the applicant denied procedural fairness by Judge Hughes?
29Before he had heard the applicant at all, Judge Hughes stated that "this is sort of a raving of some kind of lunatic here". Not only was this highly insulting of, and disrespectful to, the applicant but also it was entirely inappropriate for such a remark to be made in public. It revealed a gross departure by Judge Hughes from the desirable standard of behaviour expected of a judicial officer and a senior one at that. It gave a clear signal to any reasonable person observing proceedings that his Honour did not propose to hear the applicant at all and in fact he did not do so. Furthermore, if Judge Hughes was referring to the s 22 application filed on 3 July 2009, then what he said was not only unjustified but also was simply wrong.
30It is true that in the exchange which I have set out at [25] above the applicant did state, at least in part, a reason why he did not appear before Acting Judge Graham on 3 June and to which the primary judge responded "That doesn't seem much of an excuse to me". However, when the applicant wished to make further submissions his Honour told him to "just sit down".
31But it is the exchange which I have recorded at [28] above that makes it clear that his Honour was not prepared to give the applicant a hearing let alone provide reasons for his peremptory decision to "believe" the Director's legal representative and to dismiss the "appeal", which was an incorrect description of the application before him. The lack of reasons was indicative of his Honour's potentially dismissive attitude towards the applicant and reflected his apparent desire to see him off, as it were, in the shortest possible time.
32In my opinion there can be no doubt that the applicant was contumeliously denied procedural fairness: he was simply not heard and, therefore, there was no "hearing" within the meaning of s 22(3) of the Appeal and Review Act.
33In her written submissions, senior counsel for the Director noted that the applicant expressed a desire to read from his submissions. It was nevertheless contended that it appeared from the transcript that Judge Hughes had looked at the application dated 1 July 2009. However this is far from clear. In any event, even if his Honour had read the s 22 application, it is more than apparent from the exchange between he and the applicant that the latter wished to support his application with further submissions, an opportunity denied to him.
34The Director further submitted that it was not known what other submissions the applicant was referring to when he stated that he wished to read from his submissions. However the point was that Judge Hughes denied him the right to read from those submissions, a right which he was clearly entitled to exercise if he was to be accorded procedural fairness. It was simply inadequate for the Director to submit, as he did in his written submissions, that his Honour was entitled to reject the sole excuse proffered before him to the effect that the applicant mixed up the dates when he had denied the applicant the opportunity to make the submissions he wished to make presumably in support of that excuse.
35It will be appreciated from the two preceding paragraphs that the Director initially made what I would regard as a lame attempt to support Judge Hughes' decision. I say that attempt was lame as the submissions never grappled directly with his Honour's conduct. Ultimately, when senior counsel for the Director realised from the nature and tone of the questions from the members of the Court that her attempt to support the decision was entirely without merit, she wisely sought a short adjournment to seek further instructions. Upon the Court reconvening, senior counsel indicated that she had been instructed to concede that there had been a denial of procedural fairness and that the Director no longer opposed the granting of the relief sought by the applicant with respect to the orders of Judge Hughes.
36That concession should have been made long before the summons was listed for hearing. As a model litigant, the Director or those advising him should have appreciated well before he or they did that the applicant had been subjected to a gross injustice by Judge Hughes. Why the Director continued up to and including the hearing to defend the indefensible remains a mystery. It is nevertheless disturbing not least because it involved a waste of this Court's resources and the possible imposition upon the applicant of unnecessary stress and anxiety.
37Notwithstanding the foregoing in his written submissions the Director conceded, correctly, that a failure to afford procedural fairness during a hearing or a breach of the rules of natural justice may amount to jurisdictional error. This is clearly so: Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [27] per Gaudron and Gummow JJ; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2009) 239 CLR 531 at [60]; Wang v Farkas [2014] NSWCA 29 at [41] per Basten JA (with whom Bathurst CJ and Beazley P agreed). In the last mentioned case Basten JA said:
[W]here the law imposes obligations of procedural fairness, a failure to comply with those obligations will constitute jurisdictional error, although the precise boundaries of the obligation in a particular case may appear to fall within the discretion of the court or tribunal in determining its own procedures.
38The rider to his Honour's statement that a failure to provide procedural fairness will constitute jurisdictional error has no application to the present case. In my view as there was a clear denial of procedural fairness it follows that Judge Hughes committed jurisdictional error in dismissing the applicant's s 22 application. Procedural fairness mandated that the applicant be provided with the opportunity to fairly put his case. That opportunity was denied to him and he was treated in an arrogant, rude and inappropriate manner.
39As I have noted, the applicant's amended summons also sought an order quashing both his conviction in the Local Court as well as the decision of Acting Judge Graham of 3 June 2009 dismissing his appeal from that conviction. Whether or not his conviction before Magistrate Ellis was justified or not will be determined on any appeal to the District Court from the learned Magistrate's decision if, on the further hearing of the application under s 22 of the Appeal and Review Act, Acting Judge Graham's order dismissing that appeal is set aside. For that to occur it is first necessary for the applicant to persuade the District Court that he has shown sufficient cause for his failure to appear and that it is in the interests of justice that his appeal be heard. Upon the quashing of Judge Hughes' order that his s 22 application be dismissed, that application can now be determined on its merits.
40Three further matters should be mentioned. The first concerns the applicant's delay in initiating proceedings for judicial review of Judge Hughes' decision. He originally filed his s 69 summons in the Common Law Division of the Court on 21 November 2012. Pursuant to s 48(2)(d) of the Supreme Court Act the proceedings were assigned to this Court. The delay between the decision and filing the application on 21 November 2012 was some three years, which was a factor capable of impacting upon the Court's discretion to grant or withhold relief. The second matter was whether the applicant's s 22 application was likely to fail when considered on its merits so that to grant the relief sought would be an exercise in futility. The third related to a possible argument that to grant relief would be futile as the applicant's appeal against his conviction in the Local Court was doomed to failure.
41None of these matters were raised by the Director in his written submissions. When they were brought to the attention of his senior counsel at the commencement of the hearing before this Court, she advised with appropriate and commendable candour that she was not instructed to raise any of the matters referred to notwithstanding that those matters, and in particular the element of delay, had the potential to influence the Court's discretion to grant relief pursuant to s 69 of the Supreme Court Act if a denial of procedural fairness was established.
42Accordingly, having formed a firm view that the applicant had been denied procedural fairness by Judge Hughes and that that denial constituted jurisdictional error, the Court exercised its discretion to grant the applicant the relief he sought.
43It is for the foregoing reasons that I joined in the orders referred to at [5] above.