Fair Hearing Rule: A.evolution of The Duty To Act Fairly (

Fair hearing rule
As noted in the introduction, the procedural fairness ground as

developed in the common law embraces two key rules :
1. No individual shall be condemned without a fair hearing (audi
alteram partem).
2. No individual shall be a judge in their own cause (nemo judex in
causa sua).
 this section will focus on the fair hearing rule. It starts by tracing
the evolution of the rule in the common law.
First developed in
 Ridge v Baldwin [1946]: police officer dismissed without notice of
case against him / opportunity to be heard.
HL: decision was void for violating rules of natural justice. They
rejected the notion that the rules of natural justice could only apply to
decisions of quasi-judicial bodies, C must at least: (i) know the case
against him; (ii) have the opportunity to be heard by the decision
maker.
Context is everything in determining the content of a fair hearing: its

core requirements are laid out in Ridge — Citizen must know the case
against him and be able to respond to it — but the specific application
and intensity of those requirements varies depending on the nature of
the case.
a.Evolution of the duty to act fairly (公平行为义务的演变)
Re HK [1967]: immigration officer determined that C was over 16

and therefore should not be allowed to remain in the UK.
CA: this decision was an administrative one and not a judicial / quasi-
judicial one — given the conditions in which airport immigration
officers work, having to make on- the-spot decisions, there were
limits to the time he could invest in processing / investigating a case.
In this case natural justice required him to “act fairly”.
Ex p Doody [1994]: HS had the power to determine length of life-

sentences of prisoners. Prisoners argued HS had to tell them reasons
for differing from the judge’s recommendation. HL: accepted the Cs
argument. Prisoners had to be informed of reasons and given an
opportunity to make representations.
Lord Mustill: what procedural justice demands will vary from case
to case, depending on context. A key factors is the statute conferring
the discretion.
Commentary:
1.imposition of a general administrative duty to act fairly (公平
行为的一般行政责任)
--In Re Hk the house of lords addressed the applicability of the
traditional rules of natural justice to a decision of the immigration
authority to deport an individual from the united kingdom .
--In Re HK the court held that there was a general duty to act fairly
imposed on all decision -makers. The notion of a general duty of this
nature was not always the case and evolved from a number of
landmark decisions, including in Re HK. at one point, there was a
distinction draw the case law between judicial and non-judicial
functions.
---the rules if nature justice would only apply where the decision-
maker was acting in a judicial capacity.
---in future, the applicability of the duty to act fairly would depend n
the legal interests affected, the character of the decision-making body,
the kind of decision it has to make and the statutory or other
framework in which it operates.
---this turn in thinking was affirmed soon after in Re HK, which set
down a new approach based in a ‘duty of fairness’ which applied even
where the decision maker was acting in a ‘non-judicial’ capacity, such
as that of an immigration officer.
2.old distinctions
---at one point, it was though that there was a difference between
natural justice and the duty to act fairly.
---however, common law courts used natural justice and fairness as
synonyms.
---in 1973, the Privy council indicated that ‘natural justice is but
fairness writ large and juridically.
--further , Megarry V-C formed the view that fairness was more
appropriately used to describe review of administrative decisions:
b. scope of procedural fairness
Thus, where a body make as quasi-judicial decision it will come

under the full duties of natural justice, but where the decision is
administrative (i.e. HK) less stringent duties will be imposed. There
is, a sliding scale between the full duties of natural justice and a more
general duty of ‘fairness’
Mcinnes v Onslow-Fane [1978] 3 ALL ER 211

C’s application for a boxing licence was refused without oral hearing /
reasons for D’s decision.
Megarry VC: D’s decision was valid — he was under a duty of

fairness to reach an honest decision without bias and not in pursuance
of a capricious policy, but there was no obligation to give C reasons.
---Mcinnes v Onslow-Fan identified three categories of cases ,

each deserving different standards of protection :
Forfeiture expectation and application.
application cases: an application case is where an individual seeks the
grant of a benefit, such as a licence, membership or office that he
never previous had.
According to our sanir : the duty to act fairly in application cases

simply requires the decision-maker to ‘reach an honest conclusion
without bias and not in pursuance of any capricious policy ’.where it
has done so , there is no duty on the authority to provide the
individual with reasons as to why their application was refused.
Applying to our case Y knows that X was the chair of his job
interview , he eventally knows that X will Become an obstacle to
his success in applying for a job, so Y has lodged a lawsuit against ,
but he was rejected by the objection. And Y has the right to be heard
the reason of rejected , he also has the right to be heard the fail reason
of application of his job.
Megarry notes that the requirements of NJ should not make

unreasonable requirements / impose undue burdens on DMs. The law
should not coerce DMs into granting rights by facilitating litigation
against it under the principles of natural justice.
o “The further the situation is away from anything that resembles a

judicial or quasi-judicial situation, and the further the question is
removed from what may fairly be described a justiciable question, the
more appropriate it is to reject an expression which includes the word
justice, and to use terms such as fairness and duty to act fairly.”
In some circumstances, construe ouster clauses attempting to

eliminate the duties imposed by procedural fairness narrowly .
Al Fayed [1997]
Fact :Home Secretary rejected C’s application for naturalization.
Statute stated HS did not have to give reasons.
CA: HS breached the requirements of procedural fairness. Although
HS did not need to give reasons, per the statute, procedural fairness
demanded he give C notice of his concerns about Ds applications and
provide him with an opportunity to respond. If natural security
concerns meant that HS could not give C specifics, he should tell him
so, so that C can challenge such a determination in court.
c.The need of hearing

-A key tent of the procedural fairness doctrine is that an individual is
provided the opportunity to have their say before any decision is taken
which affects their interest. In this respect, the most obvious way for
individuals to participate in the decision-making process is through an
oral hearing.
-An oral hearing provides an affected individual with an important
mechanism to put their case effectively and is often a prerequisite for
other procedural safeguards, including the right to cross-examination.
Yet from an administrative point of view, it must also be
recognized that the imposition of an oral hearing is expensive of
time and reources. See case
Ng Nga Wo v Director of Health [2006] HKCU 768
Fact: The applicant applies for leave to judicially review the decision
of the Director of Health in his capacity as the Registrar of Clinics
(“the Registrar”). The Registrar had by letter dated 11 November
2005 indicated that he considered the applicant was not fit to be
employed by any clinic registered under Medical Clinics Ordinance
Decision: The applicant has not demonstrated that his intended
judicial review application is potentially arguable. Accordingly, the
application for leave to judicial review is refused.

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Fair hearing rule

As noted in the introduction, the procedural fairness ground as

the evolution of the rule in the common law.

Context is everything in determining the content of a fair hearing: its

a.Evolution of the duty to act fairly (公平行为义务的演变)

Re HK [1967]: immigration officer determined that C was over 16

Ex p Doody [1994]: HS had the power to determine length of life-

Thus, where a body make as quasi-judicial decision it will come

Mcinnes v Onslow-Fane [1978] 3 ALL ER 211

Megarry VC: D’s decision was valid — he was under a duty of

---Mcinnes v Onslow-Fan identified three categories of cases ,

According to our sanir : the duty to act fairly in application cases

Megarry notes that the requirements of NJ should not make

o “The further the situation is away from anything that resembles a

In some circumstances, construe ouster clauses attempting to

c.The need of hearing

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