Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: distinguished
Telstra submits that procedural fairness requires a decision-maker to disclose to an interested party the substance of material that is significant, relevant, credible and obtained from a source other than that party (citing Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 ( Kioa v West) and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 ( VEAL )). As formulated, the submission is based on the High Court judgment in VEAL at [14]-[18] which refers to the judgment of Brennan J in Kioa v West at 628-629. Brennan J there referred to adverse information that is credible, relevant and significant which the decision-maker possesses and proposes to take into account. VEAL concerned an unsolicited letter from a third party which had been forwarded by the Department of Immigration and Multicultural and Indigenous Affairs to the Refugee Review Tribunal. 484 In my respectful opinion neither Kioa v West nor VEAL is of direct relevance to the present case, which is not one of "information" of the kind referred to in them. The relevant information that ACCC "possessed" was that Telstra had implemented a churn process that required the participation of both the losing and gaining access seekers, and that neither Telstra (Bigpond) nor Request were participants in that process. This information came from Telstra or was at least known to Telstra. Furthermore, Telstra knew that ACCC's objective was to avoid disconnection charges in the case of an end-user switching service providers, and the information referred to was of obvious relevance to that objective. The procedural fairness issue raised in the present case concerns the solution arrived at and the reasoning process that led to it. This is a different area of discourse from that of information received by a decision-maker from a third party. 485 A party liable to be directly affected by a decision (such as Telstra) is, however, entitled to have its mind directed to the critical issue or factor on which the administrative decision is likely to turn ( Kioa v West at 587; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100 ( Somaghi ) at 108). This does not mean that the party is entitled to have its mind directed to the provisional views of the decision-maker so that it may have a further opportunity of criticising the decision-maker's mental processes before a final decision is reached ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-592). Similarly, a decision-maker is not required to alert parties to "evaluative conclusions" on the material before the decision-maker ( Somaghi at 108). What the rules of procedural fairness require depends on the statutory framework and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [26] . Consideration of Telstra's Ground 9(a)