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Procedural Exclusivity and Fairness in Administrative Action: A Legal Analysis, Exams of Law

University of Kentucky (UK)Law

This document delves into the legal principles of procedural exclusivity and fairness in administrative action, focusing on the uk legal framework. It examines the rules governing judicial review, including time limits and pre-action protocols, and explores the concept of procedural fairness in the context of the uk's constitutional and legislative framework. A detailed analysis of the requirements of procedural fairness under the uk's administrative justice act (paja), including the criteria for determining when procedural fairness standards apply and the specific procedural requirements that must be met.

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Procedural Exclusivity

Content:

1. Rule = Civil Procedure Rule (CPR) 54.4 = Claimant must seek permission to bring a

JR claim

2. Further guidance found in ‘White Book’

3. Public law matters = to be litigated in JR unless

- Case is based on just facts (Trim v North Dorset District Council 2011)

- Housing cases

- There’s a mixture of public + private law issues (Roy v Kensington)

Procedural Exclusivity to Judicial Review (580-585p)

What is it: restricts what claims can be brought and when

Why it’s there: to protect public bodies from unreasonable/unmeritorious (unlikely to

succeed) claims to be brought against them

Q) To what extent is it desirable/in interest of justice to give public bodies this

procedural shield?

Time Limit - CPR 54.5

-

For private law = 6 years to bring a claim (Limitation Act 1980) or 3 years for personal

injury claims

-

For public law = Promptly + no later than 3 months after grounds to make claim

first arose (CPR 54.5(1))

-

Issue = not long, not always considered promptly enough even if within 3 months

-

Pre-Action Protocal for JR = requires claimants to send letter to defendant before

taking action + give 14 days to respond

Issue = time still running

Some areas have shorter time limit

- Under Civil Procedure (Amendment No.4) Rules 2013

- JR of a planning decision of Secretary of State

= 6 weeks

- Local planning authority

- JR of decision governed by Public Contract Regulations, eg decisions to award

contracts = 30 days

- Why so short? - Not in public interest for decisions to be challenged after longer time

‘Promptly’ depends on circumstances of case ***( no clearly defined test )

- Prejudice/hardship to third parties

Partial preview of the text

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Procedural Exclusivity

Content:

Rule = Civil Procedure Rule (CPR) 54.4 = Claimant must seek permission to bring a JR claim
Further guidance found in ‘White Book’
Public law matters = to be litigated in JR unless
- Case is based on just facts (Trim v North Dorset District Council 2011)
- Housing cases
- There’s a mixture of public + private law issues (Roy v Kensington) Procedural Exclusivity to Judicial Review (580-585p) What is it: restricts what claims can be brought and when Why it’s there: to protect public bodies from unreasonable/unmeritorious (unlikely to succeed) claims to be brought against them Q) To what extent is it desirable/in interest of justice to give public bodies this procedural shield? Time Limit - CPR 54.

For private law = 6 years to bring a claim (Limitation Act 1980 ) or 3 years for personal injury claims
For public law = Promptly + no later than 3 months after grounds to make claim first arose (CPR 54.5(1))

Issue = not long, not always considered promptly enough even if within 3 months

Pre-Action Protocal for JR = requires claimants to send letter to defendant before taking action + give 14 days to respond Issue = time still running Some areas have shorter time limit
Under Civil Procedure (Amendment No.4) Rules 2013
JR of a planning decision of Secretary of State = 6 weeks
Local planning authority
JR of decision governed by Public Contract Regulations, eg decisions to award contracts = 30 days
Why so short? - Not in public interest for decisions to be challenged after longer time ‘Promptly’ depends on circumstances of case ***( no clearly defined test )
Prejudice/hardship to third parties

Procedural Fairness

At common law before 1994, decisions were considered fair if they complied with the ‘rule of natural justice’ expressed in their Latin format as audi alteram partem (hear the other side) and nemo judex in sua causa esse (no one should be judged in their own cause/ interest).
The ‘rules of natural justice’ ensured that people adversely affected by decisions would know about the decision and be able to participate in the decision, which entailed prior notice of the decision and an opportunity to state their case and influence the outcome of the decision of an unbiased decision maker.
The requirements of fairness as demanded by the ‘rules of natural justice’ remain in place post-apartheid, as they are protected by the right to just administrative action in S33 of the Constitution and PAJA.
The requirements of fairness are now more generally applied than under the common law. o At common law the rules of procedural fairness were applied in a restrictedmanner. o The rule against bias was in judicial/ quasi-judicial contexts, and not to other types of administrative conduct. o Audi alteram partem was principally applied to cases where someone was deprived of a right, rather than cases concerning a mere applicant, and also only to judicial/ quasi-judicial conduct.
Under the Constitution and PAJA, the requirements of fairness apply to all administrative conduct, and sometimes apply where the exercise of public power does not amount to AA, ITO the principle of legality.
Post-apartheid procedural fairness standards are important because these values serves to uphold the principles and values that underpin our Constitution (accountability, responsiveness and openness).
The problem with procedural fairness standards is that they take time and resources to uphold and fulfil, possibly to the extent of causing administrative paralysis at the expense of efficiency. o For this reason what fairness demands will depends on the circumstances of each case.

- Procedural Fairness in the Constitutional Era

In a break from the restrictive application of procedural fairness standards of the apartheid past, S33 of the Constitution demands all administrative decisions are subject to procedural fairness standards.
Where the exercise of public power amounts to AA, S33 provides that such power must be procedurally fair.
S3 and S4 of PAJA give greater detail on the content of what fairness demands.
Where empowering legislation imposes specific procedural fairness standards, and those standards fall short of what PAJA demands, the empowering legislationmust be read with PAJA.
When AA is taken in a manner that does not comply with the standards imposed by S3 and S4, or when it falls foul against of the rule against bias, the action will be reviewable ITO S6(2) of PAJA, and could be set aside ITO S8 of PAJA.

o S6(2)confers on the courts power to judicially review AA that is procedurally unfair ITO S6(2)(c), or that was biased or reasonably suspected of bias ITO S6(2)(a)(iii).

**- Procedural Fairness under PAJA

S3 of PAJA: Procedural Fairness IRO Decisions that Affect**

Individuals

EG – B applies for his passport at the Department of Home Affairs and is told his application is unsuccessful or when a local municipality cuts of As electricity supply .. These are situations where AA affects a person.
S3(2)(b) of PAJA provides in order for AA to be fair, this kind of AA must comply with certain procedural requirements – (1) Adequate notice of proposed AA. (2) A reasonable opportunity to make representations. (3) A clear statement of AA taken. (4) Adequate notice of any notice of review or internal appeal. (5) Adequate notice of the right to request reasons.
S3(3) provides that in some situations more demanding procedures may be required, such as – (1) An opportunity for the affected person to obtain assistance and, in serious/complex cases, legal representation. (2) An opportunity for the affected person to present and dispute informationand arguments, including in person. - When does S3 Apply?
ITO S3(1) procedural fairness requirements apply when the AA at issue – (1) Affected any person, (2) Has a material and adverse effect, and (3) Affects rights or legitimate expectations.
Substantive values and factors that inform the need for administrative justice in a particular case ought to determine whether S3 applies.
Substantive values and factors include – (1) The role of procedural fairness in affirming the dignity of all those affectedby public action, (2) Raising the quality of decision-making, (3) Achieving a culture of accountability, openness and transparency, especially in the public administration; and (4) Fostering trust in the state administration and more generally democracy. 1 - Any Person
‘Person’ includes juristic persons.

The court 1st recognised legitimate expectation under common law where doctors recommended for a post were refused appointment by an administrator, but claimed to have legitimate expectations that they would be appointed, or at the very least that they would be given a hearing before being refused appointment.
The doctors argued that their expectations arose from the administrators long- standing past practice of appointing all the doctors recommended for the post.
The court recognised the doctors legitimate expectation and afforded the expectation procedural protection by ordering the doctors were entitled to be heard if the administrator wished to depart from the long-standing practice. NDPP v Phillips and Others [Requirements for a Legitimate Expectation] (1) The expectation must be reasonable. (2) The representation giving rise to the expectation must be – a. Clear, unambiguous and devoid of relevant qualification. b. Induced by the decision maker; and c. One which it was competent and lawful for the decision-maker to make.
Under S3(1) of PAJA where a legitimate expectation is disappointed without a fair procedure being followed the decision giving rise to the disappointment of the legitimate expectations may be set aside on the grounds of procedural unfairness. - Requirements of S3 and How they Apply
The requirements in S3 apply in a flexible manner. ⟶ Flexibility
ITO S3(2)(a) the requirements of procedural fairness in S3 must be applied in a flexible manner.
S3(2)(a) provides that a fair administrative procedure depends on the circumstances of each case. Flexibility allows a context sensitive application of the requirements of procedural fairness on a case-by-case basis.
EG – A decision to erect temporary shelters for people affected by a flood, it might be fair to give one days notice of a decision, whereas if the matter is not urgent fairness will demand much more notice.
In a complex situation fairness could require legal representation be permitted.
The flexibility inherent in S3 has been interpreted to mean that acourt may find that an administrators conduct is procedurally fairn even if it does not comply withall the requirements of S3(2)(b).
If and to the extent that an administrator believes that a departure from S3(2) is appropriate, he should expressly invoke S3(4), which reinforces the idea of flexibility by allowing administrators to depart from the requirements of S3(2)(b) where it is reasonable and justifiable to do so taking into account all relevant factors. These factors include– (1) The likely affect/ impact of the AA. (2) Urgency of the matter. (3) The need to promote an efficient administration.

⟶ Requirements of S3(2)(b) 1 - Adequate Notice

A person who will be affected by AA must give adequate notice of the intended action.
Adequacy of notice is a relative concept and will depend on the circumstances of each case.
In the case of illiterate persons, written notice of the intended decision alone will be inadequate. In such a case the officials involved will be required to engage verbally with community leaders, in their home language over a long period of time, in order to satisfy the requirement of adequate notice. 2 - A Reasonable Opportunity to Make Representations
A person affected by AA must be given a reasonable opportunity to make representations either to the administrator who will take the decision, or where this would be impractical, persons who will later fully apprise the decision- maker of the content of the representations by interested parties.
The opportunity must ordinarily be afforded before the decision is taken.
Reason for allowing representations = Representations may have an important influence on the outcome of decision-making.
The purpose of the opportunity to make representations includes managing the impact of a decision on those adversely affected.
Another reason for allowing representations relates to enabling the decision maker to hear all points of view so as to arrive at am ‘objectively justifiable conclusion’.
Typically the opportunity afforded is to present presentations in writing. This is because it would be unduly burdensome to expect administrators to speak and listen, in person, to each person affected by a decision.
S3(3) recognises that administrators may in their discretion give affected persons the opportunity to do more than just present written presentations including – (1) Obtaining assistance, in serious/ complex cases, legal representation. (2) Presenting and disputing information and arguments. (3) Appearing in person. o One could expect a decision-maker to exercise the discretion for the benefit of someone who is illiterate or where the decision turns on the interpretation of complex legal documents.
In order for the timing of the representations to be reasonable, the more complex the matter the longer the opportunity to make representations should be. On the other hand if the decision needs to be taken urgently, it could be reasonable to allow a short period of time for the representations to be made.
Urgency is a factor to determine what the flexible standard of fairness requires, rather than a justification for a departure from the requirements to allow representations.
In order for the representations to be meaningful, it is accepted that the administrator must disclose to the affected persons information that will informthe administrators decision-making. This includes – (1) Provisions in legislation/ contracts that will inform the administrators decision. (2) Policy considerations that will be relied upon in making the decision. (3) Adverse or prejudicial information in the administartors possession.

- S4 of PAJA: Procedural Fairness IRO Decisions that have a

General Impact

These decisions have a broader impact in the sense that their impact is, IRT a group/ class of people, equal and impersonal. o S4 of PAJA procedural requirements apply.
The procedures envisaged in S4 do not contemplate one-on-one engagement.
Certain decisions that affect a group/ class of persons might demand both a public enquiry and a notice and comment procedure. - When Does S4 Apply?
The requirements of S4 are triggered when rights are ‘materially and adversely’affected by AA.
The distinguishing trigger in S4 is that the impact on rights must be on ‘the public’rather than on ‘a person’. ⟶ The Public
- For the purposes of S4 ‘public’ includes any group or class of the public.
- AA affects a group/ class of persons where it’s impact is equal and impersonalrather than merely specific.
- AA that is general will trigger the procedures in S4 if the group/ class of the public is not clearly identifiable or cannot give input itself.
- S4 allows public interest groups and individuals to make representations on a decision in situations where the people who might actually be affected are not able to give input and are not identifiable. - Requirements of S
An administrator taking a decision that will have a material and adverse generalimpact may – (1) Hold a public inquiry ITO S4(1)(a) and S4(2). (2) Follow a notice and comment procedure ITO S4(1)(b) and S4(3). (3) Hold a public inquiry and follow a notice and comment procedure ITOS4(1)(c). (4) Follow a different but fair procedure prescribed by an empowering provision ITO S$(1)(d); or (5) Follow any other procedure that gives effect to S3 ITO S4(1)(e).
S4 envisages that what is fair will depend on the circumstances.
S1 excludes from the definition of AA, a decision or failure to take a decision ITO S4(1). o The result of this exclusion is that the administrators choice as to which S procedure to use when decision materially and adversely affect the public will not be reviewable ITO S6 of PAJA.
An administrators choice will be reviewable ITO the constitutional principle of legality which regulates the exercise of public power.
Administrators may depart from the procedures in S4(1), (2) and (3) where it is reasonable and justifiable to do so, taking into account factors such as efficiency, good governance and the urgency of the intended AA. ⟶ S4 Procedure

The procedure in S4 must be read with the Regulations on Fair Administrative Procedures 2002. ⟶ Public Enquiry
A public enquiry is a formal hearing, in a public forum, where an administrator or a panel of administrators receives representations IRT a decision that will have a general impact.
ITO S4(2), when an administrator has chosen to hold a public inquiry in order to ensure the fairness of a decision with a general impact, the administrator must firstly decide whether to conduct the inquiry himself or appoint a panel of suitably qualified persons to conduct the inquiry. Secondly the administrator must invite the public to attend and participate in the inquiry.
The invitation must contain sufficient information so as to enable those affected toparticipate meaningfully, and enable them to ask for more information.
In addition the invitation must be publicised effectively so as to be brought to the attention of those affected.
At the enquiry people must be given a hearing (a proper opportunity to be heard) having regard to their level of literacy, home language and the possible need for assistance.
After the enquiry a written report must be compiled, recording the reasons for anydecision taken or recommended.
The report must be published in the Gazette and conveyed to those members of the public affected by the decision taken or recommended. ⟶ Notice and Comment Procedure
It may be impractical to convene inquiries.
In these cases a notice and comment procedure will be pursued, instead of a public enquiry.
ITO S4(3) administrators must issue a proper invitation to participate in the procedure, which must be published effectively.
The invitation will be to give written comments on a proposed decision by a certain date.
Once written comments have been received, the administrators concerned are required to consider the comments and decide whether or not to take the intended decision, with or without changes, in light of the comments received. ⟶ Fair but Different Procedure Bengwenyama Minerals Case
The court was concerned with the procedure in the Minerals and Petroleum Resources Development Act.
The court pointed put that in order to satisfy the demands of fairness, the consultation demanded by the Act need not be a ‘mere formal process’. Rather the consultation had to amount to ‘genuine and effective engagement of minds between the consulting and consulted parties. - Procedural Fairness IRO Decisions Affecting Individuals and the Public
Some decisions may have both a general and specific impact.

the issue before him.

(2) A family member/ friend stands to benefit from the decision, such that he has a personal interest in the outcome of the decision before him. (3) Before a particular issue came before an administrator, he already formed and expressed a firm view on the issue, such that no matter what submissions are made he will not change his decision. (4) The administrators allegiance to jis views or policies of the institution to which he is accountable render him incapable of making an impartial decision.

In each of these situations, if there is proof of actual bias, or if a reasonable person, based on reasonable grounds would think that the administrator might have been biased, then the administrators decision will be reviewable ITO S6(2) (a)(iii) of PAJA, and will usually be set aside.
When the administrators decision is set aside on the grounds of bias or a suspicion of bias after the fact, the rule against bias operates in retrospective fashion.
It is also possible that a rule against bias operates in a prospective fashion, before a decision is taken, by asking the administrator to recuse himself on the ground that he is or might be biased, so that another administrator who is impartial can take the decision. - When is Procedural Fairness Demanded of Exercises of

Public Power that Do Not Amount to AA

It is not always necessary/ appropriate to subject power that is not AA to the rigours of notice and opportunity to make representations.
Conduct that is judicial in nature usually takes the form of adjudication of disputes by application of law to facts in a public forum before an impartial decision maker, such that the demands of procedural fairness are satisfied without applyingPAJA.
Since most law-making is regulated by procedures in the Constitution, such that it is not necessary to impose PAJA’s procedures. Further, law-making typically occurs in a public deliberative forum, which ensures transparency and accountability.
IRT conduct which is executive in nature: on the one hand, it may be undesirable to impose procedural fairness standards on executive conduct. On the other hand, executive conduct that entails a decision to grant pardons to prisoners cannot rationally be taken without affording the victims of the crimes a hearing, and thus ought to attract some of the demands of fairness.
In essence legality demands that all public power must be rationally and lawfully exercised.
Sometimes in order to be ration/ lawful, exercises of public power that are not AAmust follow a fair process.
Legality imposes a duty to consult– (1) Where the purpose of an exercise of public power cannot rationally be

(2) Where a failure to consult will amount to a failure to take into account information at the disposal of the decision-maker. (3) Courts have pointed out that sometimes a statutory mandated procedure is required to be followed as a prerequisite for the lawful exercise of public power that is not AA, and that in such situations, legality will demand a fair procedure as provided for in statute is followed.

Procedural Fairness, Hearing, Bias Grounds Of Judicial Review

The grounds of review are different types or categories of error recognised by law that can lead to a remedy
Applicant for judicial review must establish one or more grounds to succeed injudicial review
Denial of procedural fairness is a ground of review which can be raised in judicialreview proceedings
Can argue multiple if relevant
Consider the underpinning rationale of the grounds: what values do they serve? PROCEDURAL FAIRNESS
Also called “natural justice” or “due process”
Concerned with the process by which decision is made (NOT substance of, orreasoning that led to the decision)
Two rules:

Hearing rule
Bias rule

Not succinct, can apply one or the other, both if possible
Ensures decisions made through a fair process
Goals: high quality decisions based on evidence; affirm the dignity of individuals
Note: many migration cases are brought under common law judicial review as Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) excludes some decisions made under the Migration Act 1958 (Cth)
Applies to Executive decision makers, and decisions of inferior courtsSources of Law
Common law o PF duty and content evolving through case law
Statutory o Ss 5(1)(a), 6(1)(a) Administrative Decisions (Judicial Review) Act 1977 (Cth)(called “natural justice”)
Enabling legislation for the decision-maker o Might replace, supplement, remove or run parallel to other sources of PF: you will need to read and interpret the statute Analytical Framework
Two steps:

Does the duty of procedural fairness apply to the decision-maker in relation to thechallenged decision? (threshold question)
If so, what is the content of the duty of PF owed by the decision-maker?

o Hearing rule o Bias rule DOES THE DUTY APPLY? THRESHOLD QUESTION

Does not apply to every decision o Might be too cumbersome as it would impermissibly slow decision-making to have the duty apply to all decisions o A decision may be based on the public interest or the broader community, or the decision-maker might have other accountability mechanisms (e.g., parliamentary scrutiny)
Will apply when decision directly and immediately affects a person’s rights, interests( Kioa) o Subject to clear contrary statutory intention Kioa v West [1985] HCA 81 FACTS:
Family overstayed temp visa, became prohibited immigrants. Minister made deportation order based on report that husband had been helping others circumvent Aus laws. No opportunity for husband or family to respond or dispute ISSUE: Was the couple entitled to judicial fairness? No legal rights HELD:
Yes, family is entitled to procedural fairness, deportation order should be quashed
Mason J o PF requires that when a person is deprived of a right or interest , they are entitled to know the case against them and respond ▪ Interests can be interpreted broadly o Common law duty of PF applies to an administrative decision that directly and immediately affects a person’s rights or interests, unless the enabling legislation clearly expresses an intention to remove this duty
Brennan J o Parliament enacts legislation against a backdrop of common law notions of justice and fairness o Can be assumed where the statute is silent, Parliament intends common law PF to apply to decisions affecting a person’s interests alone, or a decision thataffects a person in a way substantially different from the public at large o But a statute can exclude PF: look at the text, subject matter, power, administrative framework (e.g., appeals) and the person’s interests that are affected

o The interests of an individual must affects his interests in a manner which is substantially different from the manner in which it's exercises apt to affect the interests of the public Plaintif f S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31 FACTS:

Department officials didn’t forward to Minister certain migration claims in relations to which he could have exercised a dispensing power to allow stay in Aus. Didn’t forward as it didn’t meet the Minister’s guidelines. Breach of procedural fairness argued as claimants didn’t have opportunity to respond to the information relied onby department in the making of the decision. HELD:
French CJ and Kiefel J o Dispensing powers are special statutory powers the Minister can exercise in the public interest, personally and has no obligation to consider: no duty of PF is owed in refusing to consider their exercise
Gummow, Hayne, Crennan and Bell JJ o There is an interest that attracts the duty of PF as the exercise of the power could be favourable to the claimants o But the statute properly construed excludes a hearing + PF Rights And Interests
Rights: Legally recognised rights
Interests: broader than rights, legitimate expectation o E.g., financial, proprietary, reputational, prolonged detention Offshore Processing Case [2010] HCA 41:
FACTS: Decision on renewal of visa reviewed by independent contractor (independent merits review) after Minister made announcement that he would consider all claims under this process under dispensing power.
HELD: Procedural fairness applied. This review affected interests as it extended detention time even though the review decision had no effect on rights Plaintif f S10/2011 :
FACTS: non-citizens who unsuccessfully applied for visas made requests to Minister that he exercise dispensing powers. Some requests were forwarded to him and denied, and some weren’t brought to him at all.
HELD: Procedural fairness did not apply as there was no announcement that they would consider all requests, up to the Minister to decide as it is a political decision.Although interests were affected, statute prevented procedural fairness Direct And Intermediate

Procedural Exclusivity and Fairness in Administrative Action: A Legal Analysis, Exams of Law

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Download Procedural Exclusivity and Fairness in Administrative Action: A Legal Analysis and more Exams Law in PDF only on Docsity!

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