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100962
Procedural Impropriety
Description
Mind Map on Procedural Impropriety, created by alex.ariel on 21/05/2013.
Mind Map by
alex.ariel
, updated more than 1 year ago
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Created by
alex.ariel
over 11 years ago
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Resource summary
Procedural Impropriety
Definition: Decisions that do NOT follow correct procedure
Rules created by judiciary and never been challenged by legislature, implying they are accepted by it: Fairmount investments: Russell in
Rule against BIAS
Direct Bias = courts quash decision
Financial Interest: Dimes
Non-pecuniary Interest: ex p Pinochet
Indirect Bias: ex p Hook (tribunal judges/panel - side room)
Test: whether ‘fair-minded and impartial observer would conclude there had been a real possibility of bias’: Margill v Porter
Right to a FAIR HEARING
Definition: Right to a hearing that is fair and reasonable in the circumstances: Lloyd v McMahon
Rights depend on Interest: McInnes v Onslow-Fane - 3 categories
Forfeiture Case
Right to know the case against themselves and an opportunity to refute evidence granted: Ridge v Baldwin
Legitimate expectation
ex p Liverpool Taxi Fleet: promise to inform must be followed
ex p Asif Khan: decision based on reason not listed in guidance, Held, quashed
Application cases
Mcinnes v Onslow-Fane: no reason or a hearing was required for refusal boxing licence
R v Gaming Board: duty to hold a hearing but not give reasons when refusing casino licence
Further points
No right to fair hearing if ruling ONLY preliminary: Lewis v Heffer
Right to Reasons: no automatic duty (Hassan), UNNLESS decision looks aberrant (ex p Cunningham) OR reasoning is in the public interest
Right to oral hearing IF fair and reasonable in circs: Lloyd v McMahon
Cross examination permitted if fairness in circs required: ex p St Germain
Procedural Ultra Vires
Definition: statutory procedural requirements for exercise must be followed
Procedure = Mandatory Requirement - Decision quashed
Bradbury: NO COMPLIANCE whatsoever (no notice put up in school at all)
Procedure = Directory Requirement - court decides whether to quash the decision
Coney v Choyce: compliance + incorrect compliance
Soneji: court should consider what Parliament would have intended non-compliance w/ the statutory procedure to invalidate the decision
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