High Court. FCCA delivered ex tempore reasons to respondent, who did not speak English. The orders were translated, but not the reasons. Respondent did not receive or request a copy of the transcript of the ex tempore reasons and appealed to FCA before statutory deadline. Written reasons were delivered after such deadline, but well before FCA's decision. Are the procedural fairness requirements in the context of a particular decision directed to the process that occurs before the decision is made, but not after it? In other words, is the obligation to provide reasons related to procedural fairness requirements?
Some of the questions to the High Court (HCA) were as follows:
Question 1: Are the procedural fairness requirements in the context of a particular decision directed to the process that occurs before the decision is made, but not after it?
Question 2: If the answer to Question 1 is "yes", can it nevertheless be said that "the duty to give reasons is an inherent aspect of the exercise of judicial power and that the need for fairness applies to the discharge of that duty"?
Question 3: If the answer to Question 1 is "yes", can it nonetheless be said that, "to the extent that the practical manifestations of the first respondent's entitlement to be accorded procedural fairness were diminished as a result of the primary judge's failure to translate his ex tempore reasons or to produce written reasons timeously, any consequent practical unfairness to the first respondent could only logically arise in the conduct of the first respondent's appeal to the Federal Court"?
Question 4: If the answer to Question 3 is "yes", can it be said that "procedural fairness for the purposes of considering, and then exercising, [the respondent's] appeal rights required the primary judge's ex tempore reasons to be translated or written reasons to have been provided more promptly"?
Question 5: Do orders made, and reasons for judgment given, by a judge of the FCCA need to be given in English?
Question 6: "Section 75 of the FCCA Act addresses what is to happen if the Federal Circuit Court "reserves judgment" and "the Judge who heard the proceeding subsequently prepares orders and reasons, but is not available to publish those orders and reasons"". Can it be said that "an unstated premise of s 75 is that a judge of the Federal Circuit Court is under no obligation to deliver orders and reasons immediately upon completion of a hearing; judgment may instead be reserved and, in some circumstances, the Court's orders and reasons may be published by a judge who did not hear the matter"?
Question 7: If the answer to Question 6 is "yes", does it follows that the FCCA Act authorises a FCCA judge to give ex tempore reasons and final orders upon completion of a hearing where it is possible to do so?
Question 8: If the answer to Question 6 is "yes", does it follows that the FCCA Act authorises a judge to reserve judgment where it is not possible or desirable to deliver ex tempore reasons?
Question 9: Can an FCCA judge give ex tempore reasons which are then published in written form with revisions?
Question 10: Does a judge have "some ability to improve the expression of her or his judgment in published reasons, so long as she or he does not change the substance of what was said in ex tempore reasons or make other material changes"?
Question 11: Can it be said that, "where written reasons of a court are published following the giving of ex tempore reasons, those written reasons must be taken to be the authentic expression of the judgment of the court unless it is otherwise shown that those reasons had materially deviated from what had been announced in court"?
Question 12: If the answer to Question 11 is "yes", can such deviations be demonstrated by "calling for the transcript (or other recording) of the ex tempore judgment"?
Question 13: If the answer to Question 11 is "yes", can such deviations be demonstrated by "the production of notes taken by counsel or by an instructing solicitor of what was said"?
Question 14: If the answer to Question 11 is "yes", can such deviations be demonstrated by "evidence given by counsel or an instructing solicitor in lieu of such notes"?
Question 15: Can it be said that, although ordinarily an appellate court is not to look at the transcript of ex tempore reasons and must instead look at "that which bears the stamp of the judge's approval, and on that must stand or fall the success of the appeal", that court "might consider an examination of the original transcript if there was "cogent evidence" to support such an examination"?
Question 16: How can court processes be used to avoid practical injustice for a litigant in situations similar to that faced by the FCA?
Question 17: In the absence of evidence about the content of the FCCA's ex tempore reasons, must the published reasons be taken to be the approved, official judgment of the FCCA?
Question 18: "The Federal Court found that the primary judge's published reasons contained no error. More emphatically, the Federal Court also reviewed the reasons of the Tribunal for error and found none. In the circumstances of this case, [can it be said that] the decision to set aside the judgment of the primary judge and to remit the proceeding to the Federal Circuit Court was not justified?
The HCA answered those questions as follows: