Monday, January 28, 2013



An order by way of mandamus is used to compel a person or body to perform a lawful “public duty”
For relief by way of mandamus to be available, 3 requirements must be satisfied:
1) There must be a “duty” to be performed
•    i.e. some act required to be performed or some decision required to be made
•    Ainsworth v CJC (1992): held that relief by way of M. was inappropriate as the commission was under no statutory duty to investigate and report upon the matter complained of
•    M. will not lie so as to dictate the manner in which a statutory discretionary power is to be exercised: see Randall v Northcote Corporation (1910)  where the duty involves the exercise of a discretion, the court will only see that the discretion is exercised.
•    Where there has been an abuse of power, the court may take the view that there has been no exercise of the discretion and will require that the authority in question address itself to the question of the exercise of the discretion and exercise the discretionary power according to law: see ex p SF Bowser & Co; ex p Randwick MC (1927); Dickinson v Perrignon (1973)
•    Where there has been any misconception or misunderstanding (on the part of the decision maker) as to the nature or extent of the duty to be performed, relief by way of mandamus will lie: see Sinclair v Mining Warden at Maryborough (1975)
2) The duty must be a “public” one
•    Relief will not lie to control the activities of public bodies in respect of their private duties. However, in recent years it has become increasingly difficult to distinguish between what is “public” and what is “private”: see John Fairfax & Sons v Australian Telecommunications Commission (1977);
3)The duty must be “lawful”
•    There must have been both a demand for its performance and a refusal to perform the duty: see R v Brecknock and Abergevenny Canal Co (1935).
•    A “conditional agreement” to perform the duty may or may not amount to a refusal: see Brecknock. Much depends on each particular case. Undue delay can be treated as refused to act. However, what constitutes undue delay will also vary by context
Discretionary Considerations:
•    Relief by way of M is highly discretionary, indeed more so than relief in the nature of C and P, since it is not available as a right: Commissioner for Local Government Lands & Settlement v Kaderbhai (1931)
•    The court’s discretion, though wide, is still to be exercised “judicially”: Stepney Borough v John Walker & Sons Ltd (1994)
•    Relief by way of M
*    may be refused on the ground of delay (see Kuringgai MC v Arthur Gillott Pty Ltd  (1968), or where it would be unnecessary or futile;
*    will generally be refused where there is an alternative remedy of law (eg. right of appeal) which is equally convenient, beneficial and effectual: see Re Barlow (Rector of Ewhurst) (1861); Bilbao v Farquhar (1974)
*    will certainly be refused where the application for relief is not made in good faith or is made to achieve some ulterior purpose: ex p Commissioner for Railways; Re Locke (1968)
•    Specific legal right or sufficient interest or special interest in the duty
•    EG: participation in the proceedings being challenged: Sinclair v Mining Warden
•    At common law the test of “special interest” has, in the absence of a statutory right of standing, been applied, at least in NSW, to actions for relief in the form of both C and M: see Mirror Newspapers Ltd v Waller (1985)
•    At CL, a person is pf entitled to relief in the nature of mandamus if the person can show that the subject of the duty directly affects him or her: see R v Commissioner of Police of the Metropolis; ex p Blackburn (1968); Bilbao v Farquhar (1974)

4.2    STATUTORY MANDAMUS: s 65 Supreme Court Act 1970 (NSW)

65 Order to fulfil duty

(1) “The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested”
•    Specific statutory test of standing to seek mandamus: - Liberal test by which a plaintiff who is ‘personally interested’ may seek ‘statutory mandamus’ under the SCA 1970 (NSW) s 65.
•    Eg. interest in seeking to preserve family may found a ‘personal interest’ in seeking to compel a coroner to resume an inquest into the death of a brother : Bilbao v Farquar (1974) NSWLR
•    Participation as a party in a purported appeal to a tribunal may found a ‘personal interest’ within s65 in seeking to establish a jurisdictional error in a refusal by the tribunal to exercise jurisdiction over a matter:  Dickinson v Perrignon [1973] NSWLR.
•    It does not lie against the crown or servants of the crown ex powers conferred on them directly or under the royal prerogative.

4.3    Injunctions and Declarations
•    INJUNCTION – stay order (permanent or temporary). Stops person acting in way x so they have to act in way y.
•    DECLARATION – Statement of the law
•    In the absence of a statutory right of standing, before a private plaintiff can institute injunctive proceedings, the person must now show, in the absence of some right being affected, that he or she has a “special interest” in the subject matter of the action: see ACF Inc v Cth (1980); Onus v Alcoa of Australia Ltd (1981)
•    A “special interest”
-    may involve some actual or apprehended injury or damage to the person’s property or proprietary rights, to his or her business or economic interests: see NSW Fish Authority v Phillips (1970) or perhaps to his or her social, political or spiritual interests: see Onus, Ogle v Strickland (1987)
-    but must be more than “a mere intellectual or emotional concern”: ACF case  “a mere belief or concern, however genuine, however strongly felt, that the law should be observed does not in itself give a person standing”
•    Where a statute creates a criminal offence, injunctive or declaratory relief cannot be claimed by a private person suing alone, in the absence of:
-    a “special interest”; or
-    some special damage suffered by the person in addition to the offence against the public at large: see ex p island Records Ltd (1978) or
-    a statutory right of standing
•    except: in respect of flagrant and repeated (and, unless restrained, likely to be further repeated) breaches of the law: Cooney v Kuringgai MC (1963)
•    Generally speaking, however, the AG is the appropriate person to bring all such proceedings, either on his or her own motion or by relator: see Gouriet v Union of Post Office Workers (1978); ACF case
•    The balance of judicial authority is to the effect that the AG’s discretion in relation to the exercise of his or her fiat is absolute and non-reviewable: see Gouriet; ACF case

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 
Facts:  Concerned here with the issue of whether a body like the ACF has standing to apply for an injunction.  The ACF was a body corporate whose main object was conservation of the environment, who was attempting to stop a proposed tourist resort.  Minister decided needed an environmental impact statement (EIS). In the act 3rd parties could comment  ACF made written reasons why development shouldn’t go ahead, claiming the draft EIS by the company was inadequate. However, the Minister for Environment approved the development (before looking in to the claim), so the ACF sought a declaration and injunction under the original jurisdiction of the HC in relation to an alleged departure from the Administrative Procedures and s10 of the Environment Protection Act.
Held: Gibbs J-
Applied the Common Law standing test from Boyce v Paddington
Plaintiff can sue w/o joining AG in 2 cases
•    Where the interference with the public right interferes also with his private right; or
•    Where no private right is interfered with but he suffers special damage (i.e. over and above the public) peculiar to himself from the interference with the public interest: i.e. a ‘special interest’ in the subject matter of the action.
► Special interest is distinct from a “a mere intellectual or emotional concern”
► Financial or proprietary interests amount to a special interest.
•    A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.”
•    ACF has no private interest. Special interest? ACF said they do- they represent the Australian public and members. Court says that the ACF has only an emotional or intellectual interest in the matter- doesn’t satisfy the special interest test. If not directly affected, have to satisfy court have some kind of financial, economic or something other than emotional or intellectual.
•    The fact the ACF was incorporated with particular objects of conservation does not strengthen its claim to standing.
•    Gibbs J also distinguished the case from Sinclair. In that case the ACF sent written comments to the development company which they were required to take into account when drafting their environmental impact statement.  Gibbs J believed the fact the ACF was permitted by the administrative procedures to send a statement did not automatically mean they had a special interest.  “The fact would only have some significance… if the administrative procedures revealed an intention that a person who sent written comments thereby acquired further rights.”  Gibbs J believed this was not the case here, since in Sinclair the objector had a right he was entitled to enforce, whereas here, the person submitting the statement had no further right.

Murphy J’s (dissent): “even if it is necessary to show that the plaintiff is more particularly affected than other people, here the plaintiff is more particularly affected as it has gone to the trouble of submitting comments.” The Foundation should have standing because it is a well-established, well-known conservation organisation. Murphy J made reference to its objects which were in line with the challenged decision. He also took into account the fact that it had may members and had been paid annual grants by the Cth. Also, some the members of the ACF would have their pastimes interfered with.

What this case may mean:  Seems to state that environmentalists do not have a special interest, but rather they have an intellectual interest, which has no standing.  This might be different now with environmentalists having a much greater public profile, which would make it easier on the courts to recognise them as having standing.  Note, however, the stated objects of a corporation mean nothing to standing, and the distinction drawn between this case and Sinclair.
•    NB: date important because decided in 1980 under CL.
•    Also look at ACF v Minister of Resources- under ADJR Act, 10 yrs later.


No comments:

Post a Comment