The document discusses the concept of natural justice, which refers to fairness in legal procedures. It provides three key principles of natural justice: 1) all parties must be given notice and opportunity to be heard, 2) the decision maker must be unbiased with no personal stake in the outcome, and 3) the decision must be based on evidence disclosed to all parties. It also gives examples from case law where these principles were violated, such as when one party was not allowed to present their case fully or the decision maker had prior involvement in the dispute. Natural justice aims to ensure fair and unbiased decision making through adherence to procedural fairness.
2. NATURAL JUSTICENATURAL JUSTICE
What is Natural Justice?
Natural Justice is very often confused with or
commonly mistaken to be Equity aka
Natural Laws to some Layman.
However, Natural Justice is not Equity.
3. The doctrine of natural justice is founded in the notion
that for a determination of a just and fair trial, certain
processes in adjudication would be required.
According to just and fair values, certain basic legal
principles are required by nature, or are so obvious that
they should be applied universally without needing to
be enacted into law by legislation.
4. Natural justice operates on the principles that man is
basically good, that a person of good intent should not be
harmed, and one should treat others as one would like to be
treated.
In a nutshell, natural justice is about the concept of
fairness when matters in dispute are referred to
arbitration or the courts for redress :
i.e. justice should be done and be seen to be done.
5. It is more concerned with the procedures that
govern the adjudication of disputes between persons or
organizations, chief among which are :-
1. that the adjudication should be unbiased and conducted
in good faith, and
2. that each party should have equal access to the tribunal
and should be aware of arguments and documents adduced
by the other.
The purpose behind natural justice is to ensure that the
decision-making is made under a fair and unbiased environment
6. Whether a decision complies with natural justice depends not on
whether the decision itself is fair and reasonable, but on whether
a fair and proper procedure was followed in making the decision.
As one High Court judge has put it: "properly and fairly."
For such a situation to take place, the following rules must apply :-
Rule I.
Audi alteram partem - “hear the other side” ie a person
whose interests will be affected by the decision should be given a
hearing before that decision is made. The rules that no one is to be
condemned unheard.
7. Rule II.
Nemo debet esse judex in propria sua causa –
“no one shall be judged in his own case” or
“no one may be a judge in his own cause”.
ie the decision maker must be unbiased.
If a person has:-
1) preconceived opinions,
2) a vested interest or personal involvement in a matter
they should not attempt to settle that matter. Conventionally, that
person is expected to declare any interest and step aside
In short, the adjudicator must be independent and impartial
8. Case Laws Example – Malaysian Jurisdiction
THE OPPORTUNITY TO BE HEARD
Both parties have a right to attend the hearing and be given all
opportunity to present their case.
Case 1
Sharma Vs Paramount Services Ltd, High Court Auckland,
M1544-IM/99, Laurenson J
The applicant have been left unrepresented by a solicitor the day
before the hearing of his claim. He applied for an adjournment.
The arbitrator refused an adjournment and continued the
arbitration. The application to set aside the award was granted on
the grounds that it was a breach of natural justice in preventing a
party from presenting, or failing to provide it with an opportunity to
present its case.
9. Case LawCase Law
Case 2
Polytek Engineering Company Ltd Vs Hebei Import & Export
Corporation [1998] HKC 192
The Chairman of a three man arbitration tribunal and 3 experts
appointed by the tribunal had visited a factory to inspect the
machinery which was the subject of the dispute. The other two
arbitrators were not present nor was the defendant, which had not
been informed of the inspection. The Chairman and experts were
given a “seminar” by the plaintiff’s staff. The Hong Kong Court Of
Appeal set aside the award of the tribunal on the grounds that the
defendant was unable to present its case fairly as it did not hear
what was said to the chairman and the experts and therefore could
not respond before the experts prepared their report.
10. The Nemo Debet Esse Judex In Propria Sua Cuasa Rule
THE RULE AGAINST BIAS
The two main aspects of this rule are that a person
adjudicating on a dispute must have :-
1. No prior knowledge of the dispute and
2. Has no pecuniary or proprietary interest in the outcome of the
proceedings and must not reasonably be suspected, or show
a likelihood of bias.
There should be no suggestion in his conduct of the hearing that
prior to its commencement he has irrevocably decided the
outcome.
11. 1. If a person has preconceived opinions or personal
involvement in a matter he should not attempt to settle it.
2. A mediator previously involved in trying to resolve a matter
should not sit on the tribunal hearing the dispute.
“Mediators are charged with the task of assisting both
parties to settle complaints amicably .... This will involve
the knowledge of the strengths and weaknesses of both
sides and of the possible remedies and as such they
would not be able to subsequently act independently and
impartially.”
12. FAST RECAP
Foremost rules and procedures to be followed by any person or body
charged with the duty of adjudicating upon disputes:
1. Act fairly during the proceedings:
1. in good faith
II. without bias
III. and in a judicial temper
2. Give each party the opportunity to state their case adequately:
I. to correct or contradict any statement prejudicial to their
case
II. to not hear one side in the absence of the other
3. Not to act in your own cause - declare any interest
4. Gain full knowledge of the dispute
5. Ensure relevant documents used in judgment of a case are
disclosed to both parties
13. CONCLUSION
The rules of natural justice are the minimum standards in the
procedures governing any decision-making process and are
imposed on persons or bodies acting in a judicial capacity.
Where the relevant person or body is required to determine
questions of law or fact in circumstances, an implied obligation
to observe the principles of natural justice arises.
In the event of a hearing taking place or a decision being
reached which breaches the principles of natural justice, the
person aggrieved may seek a review of the hearing and/or
decision in the courts.
14. CONCLUSION
The Malaysian Arbitration Act 1952 allows for a judicial
review in the High Court if any party believe the
observance of the principles of natural justice has been
breached.
The Court has a range of remedies available to it if a
breach is found. This may include declaring the
decission/award/judgement invalid and such things as
awarding compensation in extreme cases.
– The above would similarly be applicable in all
common law jurisdiction and probably under other
jurisdiction as well as natural justice is a universal
law concept.
