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Justice in Tribunals

Justice in Tribunals

4th edition

By J R S Forbes

CONTENTSREVIEWS

Justice in Tribunals is a specialist work on the common law and statutory rules governing decisions of administrative tribunals, executive officers, government departments, professional societies, commercial associations, trades unions, sporting bodies, social clubs and political parties, affecting the rights of individuals. It explains the different procedures used to challenge statutory as well as private ("domestic”) rulings. Previous editions have been cited with approval by courts in New Zealand and several Australian jurisdictions.

This new edition goes well beyond the generalities of “natural justice” to examine numerous examples of that ideal in action. They are arranged according to various stages of decision-making - notice of the charge or claim, urgent action, legal representation, standards of proof, significance of the law of evidence, procedure at the hearing, errors of law or due process, and the articulation of reasons for a decision.

A special chapter deals with the conduct of public inquiries, such as Royal Commissions, which do not formally determine rights and duties of individuals.

_________________________________________________________________________________________________________________________________

Some judicial citations of Justice in Tribunals (QCAT references omitted)

New Zealand: Z v Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1

Queensland: Gately v Rockhampton Cab Company Limited [2011] QSC 260; Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344; Carberry v Drice as Rep of Brisbane Junior Rugby Union (An unincorporated Body) [2011] QSC 16; Crime and Misconduct Commission v McLennan & Ors [2008] QSC 23; Crowe v Mercy Health and Aged Care Central Queensland Limited [2001] QSC 384; Lee v Chai [2013] QSC 136; Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc & Ors v Group Training Assoc Qld & Northern Territory Inc [2013] QSC 31; Della Bon v Abednego [2000] QSC 275; Greenwood v Windsor [2008] QSC 68; Marshall v Averay [2006] QDC 356; Crowe v Mercy Health and Aged Care Central Queensland Limited [2001] QSC 384

Tasmania: Fernando v Medical Complaints Tribunal [2007] TASSC 44; L v Tasmania [2006] TASSC 59; Gordon v Commissioner of State Revenue [2008] TASMC 21

Victoria: Australian Football League & Ors v Carlton Football Club Ltd & Anor [1997] VSC 33; Stewart v Shuey [1999] VSC 114

New South Wales: Rose v Boxing NSW Inc & Anor [2007] NSWSC 20; Connell v NCSC (1989) 14 ACLR 765; Australian National Industries Ltd v Spedley Securities Ltd (in liq) & Ors (1992) 26 NSWLR 411; McGovern & Anor v Ku-ring-gai Council (2008) 72 NSWLR 504 (CA) Chief Commissioner of State Revenue v Kelly [2011] NSWADTAP 12; McGuirk v University of New South Wales [2010] NSWADTAP 66.

South Australia: Prescott v Legal Practitioners Disciplinary Tribunal & Ors [2009] SASC 309; James v Medical Board of South Australia & Anor (2006) 95 SASR 445; Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149.

Western Australia: Rush v WA Amateur Football League (Inc) [2005] WASC 206; De Santis and Smith [2008] WASAT 204; Hathaway v WA Locomotive Engine Drivers', Firemen's and Cleaners' Union of Workers & Ors [1996] WAIR Comm 97; Singh v Dhaliwalz Pty Ltd [2013] WAIR Comm 13.

Federal Court: Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312; Kutlu v Director of Professional Services Review & Ors (2011) 280 ALR 428; SZRHL v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1093; Singh v Minister for Immigration and Citizenship [2012] FMCA 1073; SZQFD v Minister for Immigration and Citizenship [2011] FMCA 598; Walworth v Merit Protection Commissioner & Anor (No 1) (2007) 94 ALD 771; Dinnan v Health Insurance Commission [2004] FCA 1615; Pradhan v Holmes (2001) 125 FCR 280

Australian Capital Territory: Omari v Omari [2009] ACTSC 28; Love v Disputes Committee Tribunal of AFL Canberra Ltd [2009] ACTSC 135.


CONTENTS

Preface
Table of Cases
Table of Statutes and Statutory Instruments

1.   The Scope of This Text
2.   Jurisdiction over Statutory Tribunals
3.   Judicial Control of Domestic Tribunals in Non-Livelihood Cases
4.   Private Tribunals and Restraint of Trade
5.   Statutory Jurisdiction over Domestic Tribunals
6.   Legal Error (Natural Justice Aside)
7.   Natural Justice: General
8.   Commencing Proceedings: A Right to be Heard?
9.   Urgent Action and the Right to be Heard
10. Notice of the Hearing
11.  Does Natural Justice Imply a Right to Counsel?
12. The Hearing
13. Are Reasons Part of a Fair Hearing?
14. Can There Be Fairness Without an Internal Appeal?
15. The Twin Pillar: The Rule Against Bias
16. Remedies
17. Non-Determinative Inquiries

Index


REVIEWS

Justice in Tribunals is the definitive work regarding the practice of, and sources of potential challenge to, a wide range of tribunals, both statutory and domestic. … Its coverage goes beyond material which is at least broadly familiar to every administrative lawyer to discrimination and sports tribunals and, in an excellent final chapter, Royal Commissions and non-determinative inquiries. What is more, it does so with a level of detail, accessibly presented, that is a testament to the author’s great expertise.
        This is a book that aims to address the issues of people who appear before tribunals of all sorts. It succeeds overwhelmingly. One can easily understand why it has been cited with approval by courts on both sides of the Tasman, since the author’s style is at once academically informed and unashamedly practical. The book is encyclopedic, both in the sense that it is comprehensive and in the sense that it is designed for readers to mine it for information on isolated subjects, rather than to read it from end to end. In this regard, the frequency with which the author includes cross-references is particularly helpful.
        This book, as in previous editions, remains an excellent resource, both for practitioners who appear before, or challenge the decisions of, tribunals and for academics who research tribunals. Read full review...

Greg Weeks, Australian Journal of Administrative Law, May 2015

This book is easy to read and navigate. The chapters are logically organised and well sign posted with section headings. The tables of cases and statutes and statutory instruments are very comprehensive. This book is well worth considering if you are looking for a comprehensive text on the law as practised in tribunals. Read full review...

Stephen Newman, InPrint, Law Institute Journal Victoria, March 2015

I first came across Justice in Tribunals when I was a newly admitted practitioner looking for a user friendly text to guide me through the maze of tribunal and military inquiry procedures. It proved more than equal to the task then, and the current edition of this popular text more than lives up to the high standard set by its predecessors.
        This text has been noted with approval in courts of all Australian states and the ACT, the federal courts and the Supreme Court of New Zealand. It should be an essential part of the library of any practitioner who has an interest in administrative law, including the regulation of professionals, and administrative inquiry practice and procedure in the Australian Defence Force. One's understanding of this important area of law is measurably increased by Dr Forbes' contribution. Read full review...

Don Malcolmson, Ethos, ACT Law Society, Dec 2014

Forbes on tribunals has become a classic text, at times directly noted by courts. The latest edition gives confidence that status will be maintained.
        The current edition carries forward the crisp statements of principle and discussions of controversy that characterised preceding editions. The author docs not shy away from arguing robustly for a particular conclusion or from pungent critique in topics of controversy such as public funding jurisdiction and the impact of discrimination clauses. There is an overt distaste for expansion of crucial intervention in organisational decision-making beyond the orthodox bounds.
        Historical developments is succinctly expounded so as to elucidate the current position, particularly in relation to the review of domestic tribunals whose decisions affect livelihood, other economic interests, or reputation. Footnotes give full reference to principal and consequential authority for propositions in the text without becoming an essay in themselves and distracting from the argument in the text. The index is helpful. Read full review...

Gregory Burton SC, Bar News, NSW Bar Association, Summer 2014

Brilliant. Dr. Forbes does it again with another brilliantly written book.
          I was given a wonderful opportunity to review Dr. Forbes’ Justice in Tribunals (4th ed.) and I would highly recommend it. … Justice in Tribunals should be a required textbook for law schools teaching advocacy and litigation as a class. Dr. Forbes’ table of cases is complete and comprehensive. His research of case law applied in each chapter’s themes is done exceptionally. Read full review...

Alexis N. Gage, Hearsay, September 2014, 69

Reviews of previous editions:

The text considers both tribunals established by statute, and the ones that exist as a result of consensus; such as those in sporting or social organisations, political parties and churches, and described as “domestic tribunals”. It explains the limitations in relation to remedies available for the domestic tribunal…
The principles of natural justice receive extensive attention … A chapter is devoted to apprehended and actual bias. The “growth area” of commissions of inquiry and their judicial oversight to ensure natural justice is afforded to witnesses, also receives extensive attention.
Justice in Tribunals is a compact text, in hard cover and will be an invaluable addition to the library of those who wish to gain a complete understanding of administrative law.

Victorian Bar News, Spring 2006

Whilst it is not clear from its title whether its primary subject is tribunals or the review of tribunals, [Justice in Tribunals] proves (happily) to comprehensively and perceptibly cover both, often tending to focus upon the review process to identify the principles which tribunals should apply. By adopting this approach, tribunal activity and its review are both able to be addressed clearly and succinctly.
… a recommended addition to the bookshelves of all those involved in the work of tribunals.
The work retains the format of earlier editions, which is both helpful and testimony to the suitability of that format to the subject. It takes the reader in a logical sequence through the whole range of issues fundamental to ensuring a valid hearing and a sustainable decision; the circumstances in which those issues might vary according to the nature of the hearing; and many of the practical issues which might confront a tribunal in relation to the conduct of a hearing the preparation of reasons for a decision but which are not readily found in most law book (e.g. at Chapter 6.8–6.10).
I particularly recommend the book for its excellent treatment in Chapters 7–16 of the principles of procedural fairness…
… a book well worth having.

Law Letter, No 94, Summer 2006

Questions which regularly arise in relation to proceedings before a tribunal are:

  1. Do I have a right to be heard? 
  2. Am I entitled to legal representation?
  3. Must natural justice be observed? 
  4. At what stage does natural justice kick in? 
  5. Should I be provided with reasons for decision by the tribunal?

This text answers these questions and many more. …

Ethos No 190 (Law Society of the ACT), December 2003

Justice in Tribunals provides a thoughtful and comprehensive analysis of the intertwining of common law and statutory developments in this burgeoning field. … Increasingly the courts provide those affected by decisions of private tribunals with an avenue for review, and consequently there is developing a substantial body of administrative law principles applicable to such tribunals. Justice in Tribunals provides a significant guide into the development and application of these principles. The author is to be commended on this new text which follows on and develops the excellent early work of Disciplinary Tribunals. The book provides clear guidance in the rapidly developing area of the law applicable particularly to domestic tribunals, their practice and procedure.

Victorian Bar News, Winter 2002

The book deals with both statutory and ‘domestic’ tribunals of clubs and other private organisations as well as ‘hybrid’ tribunals such as those found in the racing industry where a club or organisation is given statutory recognition. Dr Forbes is a member of a Queensland tribunal and his book is both an excellent introduction to and reference work on administrative law principles in their application to tribunals.
A large part of the work is devoted to the principles of natural justice, with a vast array of cases noted, from those stating general principles to the detailed consideration of the application of those principles to different types of tribunals.
… [There is] a new chapter titled “Non-Determinative Inquiries” concerning royal commissions and other commissions of inquiry.
Other issues dealt with include restraint of trade at common law and under the Trade Practices Act and, with it, the demarcation of livelihood/non-livelihood cases. [There is] a substantial chapter on remedies …
[I]n considering how proceedings should be conducted or whether and how they might be successfully challenged, one could hardly do better than to start with this book.
It would be a worthy addition to the libraries of specialist and non-specialist practitioners alike.

Law Society Journal (NSW), April 2003

[A]n effective and practical understanding of the issues that relate to [tribunals']  operation is an important part of many legal practitioners day to day practice.
This book is comprehensive and detailed in its analysis … [and is] one I would recommend to ptractitioners who want a detailed and considered perspective of justice in tribunals and to students who are seriously examining the area.

Balance (Law Society of the NT), February 2003

   

Published 23 June 2014
Publisher The Federation Press
Hardback/448pp
ISBN 9781862879560
Australian RRP $135.00
International Price $125.00
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