Case: Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100
Outcome: followed
In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Full Court considered the question whether an applicant for a licence to sell 'X-rated' videos had been denied natural justice on the ground that the decision maker had not, prior to refusing to grant the licence, given the applicant an opportunity to make submissions beyond the submissions the applicant had already made. In reversing the trial Judge's decision, the Full Court considered the scope of the concept of natural justice in relation to such a hearing and said at 590: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 61 ALR 173 at 179. However, as Lord Diplock said in F Hoffman-La Roche and Co. A.G. v Secretary of State for Trade and Industry (1975) AC 295 at 369: "... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished." A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-7 (French J) and Somaghi v Minister for Immigration, Local Government, and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J). The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109: 1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J ); Broussard v Minister for Immigration and Ethnic Affairs (1989) 98 ALR 180 at 189 (Burchett J). 2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634 . 23 In Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, the majority of the Full Court said at 119: However, in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interest which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question.