Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: followed
arriving at this conclusion, I am mindful of the observations of the High Court in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141. In that case, the Court considered the circumstances in which it was appropriate not to order a new trial because it would inevitably result in the making of the same order as that made at the first trial. Whilst the Court observed that ' not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial ', it cautioned at 145: 'Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact ... it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference .... when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. ' The procedural unfairness alleged in the present case is directed to a finding of fact, namely a finding as to the applicant's credibility. However, I am nonetheless satisfied that this is a case in which the provision of the information could have made no difference to the result, because the applicant's credibility was determined in his favour. The Tribunal made no adverse findings on the applicant's credibility, but rather believed his factual account. The applicant submitted that the Tribunal impliedly made adverse credibility findings, because it did not find that he had a well-founded fear of persecution. However, the examples pointed to by the applicant were those in which the Tribunal did not agree with the applicant's assessment of events, not where it disbelieved his account of the facts. The Tribunal accepted that the applicant and his brothers and cousins had been detained by the Libyan government. It accepted his description of what had occurred at his place of work and the details of his education. What it did not agree with was the applicant's explanation for these events. While the applicant believed that they resulted from religious persecution, the Tribunal disagreed. The Tribunal did not believe the applicant was lying about the facts. It just considered that he was wrong in his interpretation of them. In terms of the applicant's credibility, the Tribunal clearly found in the applicant's favour. The material contained in the file note was credible, relevant and significant only in respect of the issue of the applicant's credibility. It could not have been relevant to any of the other findings made by the Tribunal. The Tribunal's decision did not include any adverse findings upon the applicant's credibility, but rather was based upon its assessment of his risk of persecution in Libya, derived from independent country information and from its assessment of his personal circumstances. Giving the applicant an opportunity to comment upon the file note could not possibly have altered the Tribunal's findings in respect of matters unrelated to his credibility. For these reasons, I consider that this ground must also be rejected. Regardless of whether a breach of procedural fairness has in fact occurred, I consider that to order the matter to be remitted to the Tribunal would be futile and if a breach of procedural fairness were in fact established, I would exercise my discretion not to order a re-hearing. Accordingly, this ground must fail.