Procedural Fairness – the opportunity to be heard

"Procedural fairness" or "natural justice" are terms commonly bandied around.  The NSW Court of Appeal recently had to consider whether, as a matter of practical application, a litigant had been denied procedural fairness.

The background was a dispute between a Mrs Papadopoulos, who operated a kiosk in a nature reserve, and Wollongong Council.  Without going into unnecessary detail, it was apparent Ms Papadopoulos had been wrongfully evicted and, as self-represented litigant, she commenced proceedings seeking damages.  She did not comply with usual Court procedure by serving evidence of her alleged financial losses on the defendant; and an attempt to tender documents purportedly showing financial loss was rejected at trial.  The trial Judge clearly considered the Council's conduct to have been 'disgraceful' although the reasons for this are not apparent in the appeal decision.

After he reserved his decision, he had his Associate email the defendant's barrister asking for available dates for the barrister to attend Court to make oral submission on the issue of whether the Court could use public records for the purpose of computing lost earnings.  The barrister did not respond initially, but subsequently sent some written submissions to the Associate, generally to the effect that the Court should not entertain further submissions on the issue of  the use of public records.

The trial Judge later delivered judgment.  He found in favour of Ms Papadopoulos and awarded damages said to have been calculated based on an Australian Taxation Office guide to average costs of operating small businesses.

Council sought a stay of execution pending an appeal and then proceeded with the appeal.  One of the two substantive grounds pressed, was that there had been a denial of procedural fairness. That was on two bases; firstly because the Judge took account of the ATO benchmark without providing any opportunity for the Council to be heard; and secondly because the Judge failed to consider the barrister's written submission (that the Judge should not entertain further submissions about the use of public records, as this had not been an issue raised at trial).

Although was true that the first time there was any suggestion of referring to public records came after the Judge reserved his decision; and that it was an issue raised by the Judge himself and not by Ms Papadopoulos, the Court of Appeal was highly critical of the conduct of the Council's barrister. It held that there had been no denial of procedural fairness.  It noted that barristers (and solicitors) have a duty to the Court that can, and often does, override their obligation to their own clients.  Findings were made that the barrister:

  • Failed to respond to the Associate's request for details of the barrister's availability to make oral submissions.
  • Sent written submissions in circumstances where no leave to do so had been granted.
  • Failed to provide assistance to the Judge as he was required to.
  • Twice declined an invitation to attend to make oral submissions about possible use of public record.

In those circumstances the Court said that Council could not complain it had not been given an opportunity to be heard.

All that said, the Court of Appeal went on to decide that the trial Judge ought not to have relied upon the particular public records for the purpose of calculating the plaintiff's loss.  The case was remitted back to the District Court for a re-hearing, confined to the question of damages.  The Court of Appeal noted that both the defendant Council and its legal advisors should be conscious that public funds and resources had already been taken up by the litigation and that they should ensure, so far as possible, that the remaining part of the dispute was resolved quickly and cheaply.

The procedural fairness decision might seem surprising at first glance given that the issue of recourse to public records was not raised by either litigant during the trial; and was only raised by the trial Judge after judgment was reserved.  However procedural fairness is fundamentally directed to the opportunity to be heard.  Whatever reservations there may have been about actually using the public records for the purpose of calculating damages (and the Court of Appeal clearly thought it was inappropriate in this case) the Council clearly had an opportunity to be heard on the issue and could not therefore complain it had been denied procedural fairness:  Wollongong City Council v Papadopoulos [2019] NSWCA 178.

For completeness, it should be said that while Wollongong City Council was the litigant on the appeal, that was because, strictly, the Reserve Trust which previously control the kiosk and which was the defendant in the earlier District Court proceedings had by then been abolished and, by operation of the Crown Land Management Act 2016 the Council acquired all of its assets, rights and liabilities.