Procedural Impropriety

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

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