Analysis
32 There is a continuing debate about the jurisprudential source of the obligation to afford procedural fairness (see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238; (2001) 75 ALJR 889 at [89]-[90] per Gaudron J). But even if the obligation stems implicitly from a statutory implication (as Brennan J considered in Kioa v West (1985) 159 CLR 550 at 614-5), the scheme involved here imports such an obligation involving as it does a statutory right to compensation administered in a regime bearing many trappings of due procedure.
33 Accordingly, I do not accept so much of the claimant's submissions as state or imply that one looks to see if the statute or the common law "imposes" an obligation of procedural fairness, if the suggested search is for positive indication of such obligation. Such obligation can be excluded or qualified by words of "plain words of necessary intendment" (Annetts v McCann (1990) 170 CLR 596 at 598, Miah at [126]). However, nothing in the present legislative scheme does so and the claimant did not suggest otherwise.
34 The real issue is what was required in the circumstances. As Mason J pointed out in Kioa (at 584-5):
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting.
35 This case involves the content of procedural fairness in a particular statutory context in its application to a particular appeal decided on the papers with the acquiescence of the appellant.
36 Mr Nguyen is correct in submitting that Parker cannot be distinguished merely by pointing to its criminal context or the super-added factor that the District Court judge in that case considered himself bound to apply earlier sentencing precedents. On the other hand, it is reading too much into Parker to invoke it as authority for the proposition that the Tribunal must always signal a specific intention of reducing an assessor's award, thereby allowing the appellant the opportunity to withdraw the appeal. In the present context, the content of procedural fairness depends very much on the particular circumstances.
37 The obligation of procedural fairness is concerned with providing a person whose rights are potentially affected in a matter with the opportunity to deal with relevant issues. A party's failure to make proper use of that opportunity is not the concern of this branch of the law (Allesch v Maunz (2000) 74 ALJR 1206 at [38] (Kirby J), Miah at [99] (Gaudron J)).
38 Mr Nguyen was not able to place an anchor in the ground and limit the issue in the appeal to the improvement of his position somewhere between the range of 50%-100% of the statutory cap of $7,800. Nothing in the material before us suggests that the Tribunal had a practice of confining itself in this manner. The true "matter the subject of [the] appeal" was the amount of compensation to which Mr Nguyen was in all the circumstances entitled. This conclusion that I draw as to the scope of s38(2) and (4) is reinforced by considering s30(1) as a whole. The presently critical aspects of s30(1) are the opening words ("In determining whether or not to make an award of compensation and in determining the amount of compensation to award, the compensation assessor must have regard to the following …." (emphasis added). The Tribunal had the identical task, by virtue of s38(4).
39 Nevertheless, the Tribunal was bound to deal with the particular appeal with procedural fairness.
40 Procedural fairness does not normally require the decision-maker to disclose his or her thinking processes or proposed conclusions (see Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230 and other authorities cited in Aronson and Dyer, Judicial Review of Administrative Action 2nd ed pp420-1). However, "it may be that an adverse conclusion of a type that could not reasonably be expected by an applicant might have to be brought to an applicant's attention, as a matter of fairness (per Doyle CJ in Chiropractors Association of Australia (South Australia) Ltd and Naomi Perry v Workcover Corporation of South Australia [1997] SASC 120 at [87], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-1).
41 I would accept the claimant's submission that the communicated decision of the Tribunal to proceed on the papers, and Mr Nguyen's acquiescence in such procedure, meant that Mr Nguyen cannot complain if the Tribunal proceeded to perform its statutory function in accordance with its terms, absent anything specific to make that exercise an unfair one in the circumstances. The proviso is necessary to recognise the qualification adverted to by Doyle CJ and stemming from the general statement of principle in Mason J's dictum in Kioa set out above.
42 In the circumstances of this case, Mr Nguyen was aggrieved by the determination of the compensation assessor on the specific issue of the application of s30(1)(d). The Tribunal was being invited to determine the appeal to it on the same evidence and material that had been placed before the assessor, with the appellant seeking a different application of the statutory calculus that included s30(1)(d). Mr Nguyen was patently seeking a more generous assessment in his appeal "against the determination".
43 Mahoney DCJ held that Mr Nguyen knew that the matter was being considered by the Tribunal on the paper. The judge concluded that:
… full opportunity had been granted to the applicant to place whatever material he wanted to place before the Tribunal and not only was that full opportunity granted but it was taken (ibid).
44 This finding does not, however, foreclose the issue in the claimant's favour. The dictum of Doyle CJ quoted above reminds that the scope of an opportunity to make submissions may depend on the issues reasonably perceived as being "in the ring". Parker illustrates this: in Parker, notwithstanding the options available to a judge hearing an all grounds criminal appeal in the District Court, when it came to procedural fairness, the possibility of a new custodial sentence was not in contemplation until someone raised it (either judge or prosecutor).
45 Mr Nguyen appealed to the Tribunal as "an applicant for statutory compensation who [was] aggrieved by the determination of a compensation assessor" (s36(1)). He set out his grounds of appeal (Victims Compensation Rules, cl 15(3)). Those grounds asserted reasons why the assessor's Determination was flawed. Without looking at the document one can infer from the material in the District Court judgment that the grounds challenged the 50% reduction effected pursuant to s30(1)(d) (and possibly (e)) (See also Tr pp12-13, 31-32 of the proceedings in this Court).
46 In these particular circumstances it was not open to the Tribunal to set aside the assessor's determination and to award less without someone first adverting to the possibility that this might happen.
47 I do not read s38(4) as relevantly modifying the content of procedural fairness. And for that reason, I cannot accept the claimant's submission that the Tribunal's determination can be characterised as a determination de novo, as if that foreclosed the difficult and debatable matter on which this summons turns. There are too many indications pointing in the opposite direction ("applicant… who is aggrieved" and "appeal" in s36; cl 15(3) of the Rule; and the reference to "set aside" in s38(5); and s40, which merely "suspends" the Corporation's obligation to pay the compensation determined by the assessor pending the determination of the appeal to the Tribunal).
48 To describe the appeal to the Tribunal as involving a hearing or determination de novo is a conclusion rather than a useful analytical tool. Not everything involved in the original assessment was part of the "matter the subject of [the] appeal" which the Tribunal had to proceed to determine (albeit without a hearing) (cf s38(1),(2)).
49 The summons should be dismissed with costs.
50 HANDLEY JA: I agree with Mason P.
51 POWELL JA: I agree with Mason P.
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