Where a mandatory and material procedure or condition is overlooked when an administrative decision is made, the omission cannot be ignored on the basis that the outcome was inevitable even if the step was taken. No-one can argue that following the correct procedure would have made no difference. It cannot be known with certainty what course the process might have taken if the procedural requirement had been properly observed. In those circumstances therefore the correct decision is to declare the administrative decision unlawful.
The materiality of any failure to follow a legal requirement must be taken into account, where appropriate, by linking the question of compliance to the purpose of the overlooked requirement before concluding that the decision should be reviewed and set aside.
No-one can argue that following the correct procedure would have made no difference.
The case of Minister of Justice and Correctional Services v Walus was an application for parole where the Minister had not considered the submissions made by the victim of the crime. The respondent, who was serving a sentence of life imprisonment for murder, had also not been given the opportunity of responding to the victim impact statement.
On the facts it was held that these omissions constituted a fatal procedural irregularity because consideration of the victim impact statement and a response by the respondent was essential to the process. The matter was remitted to the Minister for reconsideration, after properly dealing with the victim impact statement, within 90 days of the court order.
In the course of the judgment the court quoted a nice passage from a 1970 English case John v Rees:
“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”