Constitutional damages, procedural due process and the Maharaj legacy : a comparative review of recent Commonwealth decisions (part 2)

• DOI: 10.10520/EJC153180
• Date: 01 January 2012
• Pages: 136-157
• Published date: 01 January 2012
• Author: Chuks Okpaluba

Constitutional damages, procedural

due process and the Maharaj legacy:

A comparative review of recent

Commonwealth decisions (part 2)*

Chu ks O kpa luba **

5 Breach of the principles of procedural fairness

The general attitude of the co mmon law is that a failure to observe the rules of

natural justice leading to an administrative decision render s the decision invalid

and of no effect. The courts have used terms like ‘void’, ‘nullity’ and ‘voidable’

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to describe the outc ome of such decision s. In any event, the Privy Council has

held that even though such a decision may be void, it would be necessary to have

a court to declare it to be so since it was capable of having some effect in law and

could be the basis of an appeal to a higher body, administrative or judicial. In

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most instances, a declaration, and depending on the circumstances, a mandamus

or a declaratory judgment coupled with a mandamus may be the appropriate

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remedy. The situation may however be different in the case of a holder of public

office. Lord Bingham adverted to these issues when, in McLaughlin v Caym an

Islands, he said:

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It is a se ttled prin ciple of law that if a p ublic auth ority purpo rts to d ismis s th e

hold er of a public off ice in ex cess o f its pow ers, o r in brea ch of n atura l justic e, or

unla wfully (ca tegorie s w hich ove rlap) , th e d ismiss al i s, a s be tween the pu blic

Part 1 was published in (2011) 26/1 SAPL 256-277.

*

LLB, LLM (London), PhD (West Indies), Adjunct Professor of Law, Nelson Mandela School of Law,

**

University of Fort Hare.

Ridge v Baldwin [1963] 2 All ER 66, [1963] 2 W LR 935, [1964] AC 40 (HL).

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Durayappah v Fernando [1967] 2 AC 337 (PC).

2

Calvin v Carr [1980] AC 574 (PC). See also Bradley and Ewing Constitutional and administrative

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law (2007) (14 ed) 751.

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See, eg, the Nigerian Supreme Court decision in Shitta-Bey v Federal Public Service Commission

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(1981) 2 PLR 211 (SCN).

[2007] UKPC 50 (23 July 2007).

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Co nstitut ional dama ges, p roce dural due p roce ss and the Maha raj le gacy 137

aut hority an d the offi ce-ho lder, nu ll, void and with out lega l eff ect, at an y rate once

a court of comp etent jurisd iction so decla res or o rders . T hus the office -holde r

rem ains in off ice, enti tled to the remu neratio n attac hing to s uch off ice, so long as

he r emain s read y, willing and ab le to re nder th e serv ice req uired o f him, until hi s

ten ure o f offi ce is lawfu lly bro ught to an end by r esigna tion or law ful d ismis sal.

Th ese pr oposit ions a re vou ched b y a lar ge bod y of hi gh aut hority ... 6

5.1 The common law approach

Breach of the principles of natural justice or fair procedure or fair hearing is one

of the grounds upon which an administrative decision or action can be impugned

on an application for judicial review. While the successful applicant can obtain any

of the public law remedies, the courts have held that mere failure of natural justice

does not constitute a ground upon which damages c an be recovered in those

proceedings or in a common law action. Thus, Deane J of the High Court of

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Australia held in Attorney General of NSW v Quin that:

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Th e law has n ot re cogn ised a cau se of actio n for dam ages for d enial of

pro cedur al fair ness in the exe rcise of statu tory or prero gative powe rs. Curia l relie f,

in the c ase of a den ial of proc edura l fair ness, is o rdina rily co nfined to a

dec larato ry order that the releva nt exer cise of power or a uthorit y is inva lid and to

anc illary re lief to preve nt effe ct bein g give n to it. 9

So, too, the British Columbia Court of Appeal held recently in Roeder v Lang

Michener Lawrence and Shaw that there was no action in law for damages for

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breach of the duty of fairness. The remedy for such a breach lies in administrative

law by way of judicial review. Typically, the remedy for a breach of the d uty of

fairness is a rehearing, but the court has the right to refuse relief if no substantial

[2007] UKPC 50 para 14 citing Wood v Woad (1874) 9 Ex 190 at 198 (Kelly CB) and 204 (Amphlett

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B); Vine v National Dock Labour Board [1956] 1 QB 658 at 675-676 (Jenkins LJ) and [1957] AC 488

at 500 (Viscount Kilmuir LC), 503-504 (Lord Morton), 506-507 (Lord Cohen); Ridge v Baldwin [1964]

AC 40 80-81 (Lord Reid), 139-140 (L ord Devlin); Anisminic Ltd v Foreign Compensatio n

Commission [1969] 2 AC 147, 170-171 (Lord Reid), 195-196 (Lord Pearce), 207 (Lord Wilberforce);

Malloch v Aberdeen Corporation [197 1] 1 W LR 1578, 1584 (Lord Reid), 1598-1599 (Lord

Wilberforce); F Hoffmann-La Roche and Co AG v Secretary of State for Trade and Industry [1975]

AC 295, 365 (Lord Diplock); Calvin v Carr [1980] AC 574 at 589-590 (Lord Wilberforce); Zainal bin

Hashim v Government of Malaysia [198 0] AC 734, 740 (Viscount Dilhorne); Boddington v British

Transport Police [1999] 2 AC 143 at 154-156 (Lord Irvine LC); Wade and Forsyth Administrati ve

law (2004) (9 ed) 300-301.

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Premier, Western Cape v Fair Cape Property Developers (Pty) Ltd 2003 6 SA 13, [2003] 2 All SA

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465 (SCA); R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58; Rowling v

Takaro Properties Ltd [1998] AC 473; Dunlop v Woollah ra Municipal Council [1982] AC 158.

[1990] HCA 21, (1990) 170 CLR 1 (HCA).

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[1990] HCA 21, (1990) 170 CLR 1 (HCA) 45. See also Park Oh Ho v Minister for Immigration and

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Ethnic Affairs [1 989] HCA 54, (1989) 167 CLR 637 at 645; per Grazebrook J, Brown v Attorney

General [2003] 3 NZLR 335 (HC) paras 50, 127 and 129.

(2007) 280 DLR (4 ) 294 (BCCA) 307-308 paras 19 and 20.

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