Case: New South Wales v Canellis &amp; Ors [1994] HCA 51 ; (1994) 181 CLR 309
Outcome: applied
The principle in Dietrich was explained in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ in New South Wales v Canellis &amp; Ors [1994] HCA 51 ; (1994) 181 CLR 309 (' Canellis ') in the following terms (at 328): '... the principle established by the decision in that case is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation.' 12 This reasoning of the joint judgment in Canellis has been applied in numerous cases. 13 In McGibbon v Linkenbagh (1996) 41 ALD 219 at 228 Kiefel J said: 'The principle established by Dietrich v R [1992] HCA 57 ; (1992) 109 ALR 385; 177 CLR 292 as to the use of a court's inherent powers to stay or adjourn proceedings until legal representation is obtained, where it concludes it is necessary for a fair trial, refers only to criminal proceedings: New South Wales v Canellis [1994] HCA 51 ; (1994) 124 ALR 513, 522; Williams v Official Trustee (1994) 122 ALR 585, 600 . It is not authority for the proposition that in other proceedings or inquiries such a step would be required by dictates of fairness, even where someone faced potentially serious consequences.' 14 In Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 , Mansfield J said (at [61]): 'The principle recognised in Dietrich ... is a feature of the entitlement to procedural fairness, but it is confined to serious criminal proceedings. That decision was not intended to apply in respect of civil proceedings: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 328-329 per Mason CJ, Dawson, Toohey and McHugh JJ.' 15 In Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 ; (2000) 101 FCR 20, Sackville, Marshall and Lehane JJ in a joint judgment said (at [22] [24]): 'The limited scope of the principle in Dietrich was recognised by the High Court in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309. In that case, the issue was whether a stay should be granted of an inquiry under s 475 of the Crimes Act 1900 (NSW) because of doubts concerning the guilt of a convicted person. The question arose because the State had refused to pay the costs of legal representation for certain witnesses required to appear before the inquiry. The joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ observed (at 328) that the principle established by Dietrich "is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation. As the majority judgments made clear, that principle is based on, and derives from, the accused&#180;s right to a fair trial". 17 In Commissioner of Taxation (Cth) v La Rosa (2002) 196 ALR 139, Nicholson J considered that the Dietrich principle did not apply in the context of a hearing before the Aministrative Appeals Tribunal, stating (at [120]): ' Dietrich decided that the common law of Australia does not recognise the right of an accused person to be provided with counsel at the public expense but the courts have power to stay criminal proceedings that will result in an unfair trial. In Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20the Full Court of the Federal Court held that the Dietrich principle had no application in the circumstances of a decision of a tribunal in deportation proceedings: see [17] and [18] of Nguyen . There the court referred to the decision in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309; 124 ALR 513 where the limited scope of the Dietrich principle was recognised, Mason CJ, Dawson, Toohey and McHugh JJ stating it was concerned with the right to a fair trial of a party to criminal proceedings: at CLR 328. The Full Court in Nguyen considered it was clear the High Court did not favour the extension of the Dietrich principle into the field of administrative review.' 20 In Vranic v Chief Executive Officer Centrelink [2004] FCA 1511 , the applicant submitted that she had been denied procedural fairness because she was not legally represented at the hearing before the trial judge. Cooper J rejected this submission, stating at [8]: 'Procedural fairness in a civil proceedings (sic) does not require that legal representation be provided to a party at trial: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 330; Stuart v Federal Commissioner of Taxation (1996) 96 ATC 4960 (FC) at 4964.'