Denial of procedural fairness is identified as the decisive ground of appeal. It is a matter of logic that a ground of appeal that raises procedural fairness must be dealt with first to determine the “validity and acceptability of the trial and its outcome” (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 5777 at [117] (Kirby and Crennan JJ); Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9] (Basten JA).

If this ground is successful, the proper course is for the court orders made by the primary judge be set aside and the matter be re-emitted for rehearing before a judge other than the primary judge.

In Funar & Headly [2022] FedCFamC1A 214 at [24], the appellant wife submits, and it is conceded by the second respondent, that the primary judge read material that was not relied upon by the parties, had relied upon extraneous material and, thus, the appellant was not afforded procedural fairness. It is conceded that the appellant was unaware that the primary judge intended to rely upon material that was not put before her by any party in the matter and where the appellant was not given any opportunity to answer that extraneous material.

In House v The King: (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ, discussed about reliance on extraneous material at 504–505:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

The rules of procedural fairness require that anything relied upon by a court in reaching its decision be made known to the parties to the proceeding prior to the making of the decision, so that the parties may oppose reliance upon it, produce evidence in relation to it and make submissions about it. Reliance upon material which does not emerge in that manner is a breach of the rules of procedural fairness. (McGregor & McGregor [2012] FamCAFC 69; (2012) FLC 93-507 at [59]. 

Therefore, the breach of procedural fairness needs to be material. A breach is only material if it operates to deny a party an opportunity to give evidence or make arguments and thereby to deprive that party of the possibility of a different and more favourable outcome. (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [2]. 

McClelland DCJ, Henderson & Harper JJ in Funar & Headley held on appeal at [27] & [28]:

The primary judge included in her list of material read in the appellant’s case, four affidavits which the appellant did not rely upon, nor was the appellant cross-examined on in respect of those affidavits. The appellant was not provided notice, by the primary judge, of her intention to rely upon material that the parties had not sought to reply upon contrary to what was stated in their respective Case Outlines.

Not only did the primary judge read these extraneous affidavits, she determined there were inconsistencies in those affidavits and the affidavits that were relied upon by the appellant. The primary judge noted that the appellant’s “evidence throughout her affidavits was inconsistent”, and there are numerous instances of the primary judge referring to affidavits filed by the appellant she did not rely upon.

Their Honours accordingly held “that the breach of procedural fairness was material by denying to the appellant the possibility of a different and more favourable outcome and that Ground 1 is made out and this is dispositive of the entire appeal.

If you have concerns about the primary judge’s decision in a substantive proceeding, please feel free to contact Longton Legal who have expertise in dealing with matters on appeal.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*