The importance of procedural fairness

In a recent appeal the Family Court spoke about the fundamental importance of procedural fairness to the law and more broadly to the community.

The case of Manotis & Manotis and Others [2014] was an appeal from a decision by Justice Moncrieff.

The husband appealed the decision of Justice Moncrieff, relying in part on an argument that he had not been provided with procedural fairness by the Judge.

The Appeal Court acknowledged the frustration that Justice Moncrieff "understandably felt in dealing with the dispute which remained unresolved nearly 5 years after the substantive orders had been made. We acknowledge also the difficulty associated with the husband seeking to rely upon an affidavit, which although not of great length, attached a very large number of documents, many of which were seemingly of little or no relevance. We also accept that the affidavit contained much objectionable material. Finally we accept that His Honour was entitled to entertain suspicions about the Deed of Settlement."

The Appeal Court went on to say "notwithstanding all of this, His Honour's obligation was to determine the issue according to law and to afford procedural fairness. With great respect, we consider the transcript reveals that His Honour approached the matter having predetermined the outcome; acted as prosecutor on behalf of the solicitors and failed to afford a proper opportunity to any of the parties to present their case."

The Appeal Court upheld the husband's appeal. 

The Appeal Court concluded by addressing the importance of procedural fairness.

The Court said: "it is important to keep in mind that the process followed in every case not only has an impact on the litigants in that case but it also has wider ramifications." The Appeal Court quoted from the decision of NAAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] where Justice Kirby said: "if the law requires a particular course to be followed, the failure to observe proper procedures itself amounts to a legal defect in the performance of the task conferred by law as the law requires. In this sense, the invalidating element is not the disappointment but the anterior failure to conform to the law. That failure is, in a sense, a legal wrong against the whole community."

The Court also quoted from Justice Rich in Cameron v Cole [1944]: "it is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside."

The Appeal Court concluded "the hearing in the present manner was attended by such procedural unfairness that the only proper order was to discharge all of the orders."