Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: considered
Merkel J then referred to what the High Court had said in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-146: 'It is no easy task for a court of appeal to satisfy itself that what appears on its face would have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.' 44 The University submitted that the objective evidence showed that Ms Frank's evidence was uncontroversial and therefore did not and could not affect the result of the proceedings. The appellant had conceded in cross-examination that she had not made in her very lengthy complaint to the University, to which Ms Frank's evidence related, any mention whatever of Mr Xiao (Transcript 6 April 2005 pp 44 line 25 45 line 5) and that the first time she had written to the Human Rights and Equal Opportunity Commission in July 2002, the appellant had made no mention of a complaint involving Mr Xiao (Transcript 6 April 2005 pp 48 line 32 49 line 22). 45 Moreover, the appellant agreed that prior to her complaint to the Human Rights and Equal Opportunity Commission of 31 October 2002 she had made no complaint against Mr Xiao relating to being shown a photograph of a naked man and a naked woman in August or September 2001 (Transcript 6 April 2005 pp 52 line 25 53 line 14). Accordingly, it was submitted that the admission of the material of Ms Frank's affidavit did not, as a matter of substance, affect the outcome of the proceedings or create any substantive adverse consequence for the appellant in the proceedings. 46 As the High Court said in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145: 'The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board ([1957] 2 QB 55 at p 67) , in these terms: "There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it." That general principle is, however, subject to an important qualification [...]: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.' 54 As Gaudron and Gummow JJ noted in Re Refugee Tribunal ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 116-117 [80] - [81] it is sufficient that a denial of natural justice deprives the appellant of the possibility of a successful outcome (applying Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147). Their Honours went on to quote with approval from Megarry J in John v Rees [1970] Ch 345 at 402: 'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'