Case: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
for ASIC submits that the role of the SOFAC was to afford procedural fairness to Mr Gould and that what procedural fairness requires does not involve a fixed body of rules to be applied at a formulaic manner. Counsel refers to the statement by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [37] that: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. Counsel also referred to Adler v Australian Securities and Investments Commission [2003] NSWCA 131 ; (2003) 46 ACSR 504 at [139] where Giles JA quoted from Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 at [18] where Mason P had said that "pleadings serve the ends of justice [and] must not be permitted to assume an independent self-referential function". The five legal principles and the authorities that Mr Gould cites in support of them are as follows: (a) ASIC must act with reasonable promptness and diligence in prosecuting charges in respect of a matter or complaint that comes to its attention: Herron v McGregor (1986) 6 NSWLR 246 at 254; Gill Herron and Gardiner v Walton (1991) 25 NSWLR 190 at 208A per Kirby P; R v Chief Constable of the Merseyside Police ; ex parte Calveley [1986] QB 424 ( Calveley ); (b) A prosecutor will generally be permitted to have only one "bite of the cherry" in respect of any formal hearing of charges against a defendant in respect of a matter in issue: Walter Construction Group v Fair Trading Administrative Corporation [2005] NSWCA 65 ; (c) A decision by an administrative body or court to stay or to refuse to deal with charges on the ground that their prosecution would be unfair and oppressive to the defendant may prevent them from being re-agitated, even if the fresh proceeding could be conducted without unfairness to the defendant, by analogy to principles which inform the rule against double jeopardy or as a species of double jeopardy: Walton v Gardiner (1993) 177 CLR 378 at 396-398 per Mason CJ, Deane and Dawson JJ; Jago v District Court of New South Wales [1989] HCA 46 ; (1989) 168 CLR 23 at 58 per Deane J; Gill v Walton (1991) 25 NSWLR 190 at 200-202 per Gleeson CJ, at 206-207 per Kirby P; (d) Allegations which, owing to the delay in their being prosecuted, may prejudice the defendant and deny him or her his right to a fair hearing, may be stayed: Jago v District Court of New South Wales [1989] HCA 46 ; (1989) 168 CLR 23 ; (e) If, because of the above matters or otherwise, it would be unfair or oppressive to a defendant to face the charges in question, a tribunal such as the Tribunal, is required to stay or to decline to hear the charges: Re Moline and Comcare (2003) 77 ALD 224 , [2003] AATA 827 ; Hughes Aircraft Systems International v Air Services Australia (1997) 146 ALR 1 at 40-42 per Finn J; Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 332 at 342 per Griffith CJ; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-9 per Mahoney J; SCI Operations Pty Ltd v Commonwealth of Australia (1996) 139 ALR 595 ; Greiner v Independent Commissioner Against Corruption (1992) 28 NSWLR 125.