Administrative Law. Natural Justice.

Right to a Hearing
Author(s): R. B. Cooke
Source: The Cambridge Law Journal , Apr., 1954, Vol. 12, No. 1 (Apr., 1954), pp. 14-19
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal

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14 The Cambridge Law Journal [1954

issue before the court, because it has found

of documents which are not normally discl
decision of the House of Lords given in time o
considerations were paramount may have oper
to an unhappy prisoner on remand who, wh
the charge against him, could not lawfully
in prison even by a mental defective. Sectio
Proceedings Act, so far from enlarging the lia
offers it a protection which may very well
subject.
E. C. S. Wade.

ADMINISTRATIVE LAW—NATURAL JUSTICE—RIGHT TO A HEARING

The twilight of natural justice has been in no way di

R. v. Metropolitan Police Commissioner [1953] 1 W.L
The actual decision of the Divisional Court may be logica
language of the Order under consideration, authorising th
tion of a cab-driver's licence by the Commissione
satisfied, by reason of any circumstances arising or com
knowledge . . . that the licensee is not a fit person to
a licence," may seem to exclude any implication that
was intended. It is true that in the case in question a
impression might have been created that the Com
nevertheless purported to act in accordance with natu
He gave instructions that the driver should be brought
departmental licensing committee and confronted with
constables who were his accusers. The Commissioner stated in an
affidavit, however, that he had already decided to revoke the
licence unless anything transpired before the committee which
might lead to a reconsideration. It was accordingly held that
the committee were not meant to conduct a judicial inquiry, and
hence not obliged to hear a witness whose evidence conflicted with
that of the constables. Parker and Donovan JJ. considered that
the position might have been otherwise had the Commissioner
deferred forming an opinion until the committee had inquired and
reported. Such a distinction might introduce undesirable refine-
ments into the law of natural justice; but in any event it is unlikely
that, if the Commissioner were fully informed of the procedure at
an inquiry and chose to act on the committee's report, the licensee
would have any legal ground for complaining of defects in the
committee's procedure.
The more unexpected features of the case are certain dicta in

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C.L.J.] Case and Comment 15

the judgment of the Lord Chief Justic

drawn, for the purpose of determinin
between an order or resolution and a mere decision. It is
suggested (at p. 1155), that a decision to revoke a licenc
confirmed by letter,1 could not be brought up and
attach importance to the precise form taken by an
alleged exercise of a statutory power, rather than to th
of the decision, would seem not wholly in accord w
London County Council.2 There the Court of Appeal
resolution to take no action for the present in the
cinema being opened on Sundays could be quashed, b
reality the council had decided to grant unlawful per
Sunday opening.
On the other hand, the New Zealand Court of Ap
examination in judgments and arguments of authorities
a number of Commonwealth jurisdictions, has found it
make a constructive contribution to the subject of natu
In New Zealand Dairy Board v. Okitu Dairy Co., Ltd. [1953]
N.Z.L.R. 366, the Board was empowered by regulations to confer
on any manufaeturing dairy or dairies the exclusive right to receive
cream for making into butter from supplying dairies in any area.
An order of 1937 had assigned a certain zone to the Okitu Company
and the Kia Ora Company. In 1950, on application by the Kia
Ora Company, the Board made a new order assigning that zone to
the latter company only, an order that would have destroyed
(subject to compensation) the Okitu Company's butter manu¬
faeturing business. This order was preceded by negotiations,
including a meeting of representatives of the Board and the two
companies, on the subject of certain grievances of the Kia Ora
Company. Nevertheless, it was found as a fact that the Okitu
Company was not informed that the Kia Ora Company had
requested, and the Board was contemplating, the drastic order
finally made. As the secretary of the Board explained in
evidence,3 " one was liable to get into trouble by saying too much."
Hence the Okitu Company had been denied a hearing on the
crucial issue.
By an ultimate majority of four judges (Northcroft, Finlay an
Cooke JJ. in the Court of Appeal and Hay J. at first instance) to
two (O'Leary C.J. and Hutchinson J., the dissentients in the Cour

1 Ibid., at p. 1151. It is hard to imagine that any such decision would be

taken without some record of its being made; and indeed paragraph 30 (2) o
the London Cab Order, 1934, requires the Commissioner to cause notice
revocation to be given to the licensee.
* [1931] 2 K.B. 215; 144 L.T. 464.
3 Ibid., p. 374.

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16 The Cambridge Law Journal [1954

of Appeal), the Board was held to have bee

such a hearing. In substance the view of the m
is indicated in Nakkuda AU v. Jayaratne,4 a duty to act in
accordance with natural justice may be implied either by the actual
terms in which the power in question is conferred or by " the
context or conditions " of the jurisdiction. The zoning regulations
contained no language imposing such a duty. Indeed, although one
clause recognised that the Board might undertake inquiries, it seems
fair to say that there was nothing to show decisively that the
draftsman had intended to provide any guidance on the point at
issue. Where, however, the Board was faced with a contest
between two parties in a matter of great moment to both, the
conditions in which the zoning power fell to be exercised led to
the inference that a quasi-judicial inquiry must be held. The power
and the situation together inevitably involved the Board in adjudi¬
cation on a form of Us. The Ceylon case was accordingly
distinguishable. The minority judgments reach the opposite result
chiefly by reason of the absence from the bare words of the
regulations of a positive indication that an inquiry was intended.
All the members of the Court of Appeal were agreed that the
problem in a case of this kind is basically one of construction.
Since it is not the practice of legislators in terms to impose or
delimit obligations to follow the rules of natural justice, since to
do so would be in truth a most difficult drafting task in view of the
elasticity of the rules and the variety of circumstances in which
they may be relevant, the work of construction must often be
largely creative. A decision as to whether or not the rules apply
may depend on ascertainment of the solution that would best
accord with the purposes of the legislation as a whole. Here much
can turn on individual differences in approach, and it is not
surprising that, as is pointed out in the majority judgments in the
Dairy Board case, even deeisions of the House of Lords and the
Judicial Committee seem to show some inconsistency. It also
follows that no attempt to state general propositions as to when
the rules apply can be more than tentative; but unless such
attempts are made from time to time the law relating to natural
justice will become almost entirely devoid of certainty.
Accordingly it is tentatively suggested that the authorities at
present justify certain propositions concerning the rule audi alteram
partem. At the outset, three further caveats should be entered.
First, such propositions can be no more than prima facie rules
of construction, liable to displacement by clear signs of a contrary

* [1951] A.C. 66, 78-9.

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C.L.J.] Case and Comment 17

intention. Secondly, they relate on

exists, and not to what such a du
said in delivering the judgment o
De Verteuil v. Knaggs5 : " The par
depend on the conditions under whic
any particular case, and no general r
can be formulated." Thirdly, they r
and not to the rule against bias. Th
in a dispute or preconceived opinion
varies from case to case and is vita
the other powers and duties of th
connoted by the term quasi-judicia
Prima facie a duty to afford a he
prejudicially affected is implied :
(a) By the use in the legislation def
language commonly having curial associations. An obvious
instance is Smith v. The Queen 7 (Commissioner of Crown Lands to
" sit" at a certain place, and " All questions shall be decided
by the Commissioner who shall give his decision in open court,
subject to confirmation by the Governor in Council"). Other
instances are De Verteuil v. Knaggs8 (power to transfer indentures
of immigrants " If at any time it appears to the Governor, on
sufficient ground shown to his satisfaction " that they should be
removed from plantations); Wilson v. Esquimalt and Nanaimo Ry*
Co.9 (Lieutenant-Governor to issue Crown grants upon " reasonable
proof " of certain matters); and F. E. Jackson fy Co.9 Ltd. v. Price
Tribunal10 (various indications, including the terms " tribunal "
and " sitting " and reference to the matters before it as " cases ").
(b) If there is power conclusively to decide questions of law
and fact, and hence to ascertain existing rights rather than create
new ones. This principle seems to underlie Spackman v. Plumstead
Board of Works " (decision of architect of Metropolitan Board of
Works as to the general Une of buildings in any street conclusive
for the purposes of a prosecution) and to be supported by R. v.
Manchester Legal Aid Committee,12 where the committee were held

5 [1918] A.C. 557, 560. For a recent decision on the right to reply to statements
made by an opponent see Connolly v, Palmerston North City Council [1953]
N.Z.L.R. 115, where Fair J. adopts the analysis of quasi-judicial powers
contained in Mr. H. W. R. Wade's article in 10 C.L.J. 216.
e Panamena Europea Navigacion v. Frederick Leyland & Co. [1947] A.
Franklin v. Minister of Town and Country Planning [1948] A.C. 87.
7 (1878) 3 App.Cas. 614.
* [1918] A.C. 557.
* [1922] 1 A.C. 202.
10 [1950] N.Z.L.R. 433.
« (1885) 10 App.Cae. 229.
12 [1952] 2 Q.B. 413.

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18 The Cambridge Law Journal [1954

bound to act judicially because bound to decide so

of each particular case, solely on the evidence
apart from considerations of policy. It is true th
was not directly concerned with natural justice, a
provisions of section 14 of the Legal Aid and
might indeed be said partially to deny natur
applicant's opponent; but, such special provisio
is amenable to certiorari because it performs fun
characteristically performed by courts, the
normally be concomitant.
(c) If an exercise of the power involves the
demolition of property. There are many old case
principle, the best known being Cooper v. Wand
tieth-century illustrations are Sydney Corporati
the High Court of Australia and TJrban Housing
City Council15 in the English Court of Appe
illogical that the principle should not extend
withdrawal of a licence to trade. While Nakkuda Ali's case
stands, however, the distinction must be made 16; and p
may be justified in some sort by the irretrievable conse
physical destruction.
(d) If the power is vested in an authority that ordina
as a court or tribunal. Many of the most sweeping judic
ments of the scope of natural justice, at first sight i
with Nakkuda AU v. Jayaratne, have been made in ca
kind. As the Judicial Committee said in the Ceylon c
is probably true to say that the courts have been readie
the writ of certiorari to established bodies whose function is
primarily judicial, even in respect of acts that approximate
what is purely administrative, than to ministers or officials wh
function is primarily administrative even in respect of acts tha
have some analogy to the judicial."
(e) In cases where common law or equity requires of a m
a particularly high standard of conduct. Thus, where partne
have power to expel one of their number, the authorities show th
in Pollock's words,18 " In ordinary cases of expulsion, the conditi

13 (1863) 14 C.B. (n.s.) 180.

" (1912) 14 C.L.E. 1.
15 [1940] Ch. 70.
16 It is also possible to limit the operation of that decision by making a distinc¬
tion, pointed out in the Dairy Board case at pp. 416-7, between withdrawal
of a privilege conferred by a licence and restriction by zoniug or other order
of a liberty existing at common law.
" [1951] A.C. 66, 78.
is Partnership. 15th ed. (1952) 79.

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C.L.J.] Case and Comment 19

of good faith include a reasonable

opportunity of explanation." Simil
fall short in their duties if they fai
see the judgment of Lord Langdale
(f) In arbitrations (see Re Carus W
where one immediate object in ex
dispute between specific parties. T
case may be placed under this hea
to underlie Scrutton L.J.'s well-k
functions in R. v. London County Cou
(g) If an exercise of the power inv
man has been guilty of discreditab
demanded by natural justice more pl
propositions, this must be advance
was held in Nakkuda AIVs case that cancellation of a licence " where
the controller has reasonable grounds to believe that any dealer
is unfit to be allowed to continue as a dealer," need not be preceded
by a hearing. It may be possible, however, to distinguish that
case. The decision of the Controller was not final because, as the
Judicial Committee held, there must in fact (in the opinion of
the court) have existed such reasonable grounds, known to the
Controller, before he could validly exercise the power. It would
not necessarily be inconsistent to apply to powers of conclusive
condemnation the principle so often regarded as basic in the past.22
Whether the distinction will be drawn may turn on which of two
considerations carries more weight with the judge. Lord Kenyon
C.J. said, "... every man ought to have an opportunity of being
heard before he is condemned; and I should tremble at the
consequences of giving way to this principle." 23 Lord Goddard
C.J. has said : " Where a person, whether he is a military officer, a
police officer or any other person whose duty it is to act in matters
of discipline, is exercising disciplinary powers, it is most un-
desirable, in my opinion, that he should be fettered by threats of
orders of certiorari and so forth, because that would interfere with
the free and proper disciplinary exercise of the powers that it
may be expected he would otherwise use."24
R. B. Cooke.
19 (1851) 13 Beav. 117.
20 (1886) 18 Q.B.D. 7.
2i [1931] 2 K.B. 215, 233. See also Barnard v. National Dock Labour Board
[1953] 2 Q.B. 18, 39-40, 45; R. v. Statutory Visitors to St. Lawrence'$
Hospital, Caterham [1953] 1 W.L.B. 1158, 1162.
22 E.g., Bonaker v. Evans (1850) 16 Q.B. 162; Wood v. Woad (1874) L.B. 9
Ex. 190.
23 jR. v. Gaskin (1799) 8 T.B. 209, 210.
24 B. v. Metropolitan Police Commissioner [1953] 1' W.L.B. 1150, 1155.

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