2.1 High Court & General Law
- Allars 13.8.1- the court has a discretion to decline relief even though an administrative action is justiciable, the plaintiff has standing, and a ground of review is established.
- Prohibition and certiorari may be declined due to delay, prejudice to the respondent outweighing the grant of relief, and futility.
- Ex Parte Mullen; Re Wigley set out the discretion to decline grant of mandamus, namely, the court will, “refuse an application for the prerogative writ of mandamus where there is an alternative remedy at law which is equally convenient, beneficial and effectual… and where the statute imposing the duty provides a specific remedy for the enforcement of that duty, the remedy of the prerogative writ of mandamus is not available.”
- Also, they will not grant it if the application is not made in good faith or to achieve some indirect purpose, or there is an ulterior motive.
- Allars 13.8.2- Injunction and declaration are discretionary remedies. An important principle is that the jurisdiction of the civil courts to grant an injunction to restrain an actual or threatened breach of the criminal law is used only in exceptional cases, like A-G v Harris 1961, here shopkeepers complained their trade was reduced by unfair competition of flower sellers at a stall near a cemetery on Sundays in breach of a regulation. Since the flower sellers were ‘deliberately flouting the law’, and the fines were small compared to the profits, an injunction was granted to restrain the illegal activities.
Re Refugee Review Tribunal; Ex parte Aala (2001) 75 ALJR 52
• Gleeson, Gaudron & Gummow JJ- conclude the HC can grant remedy of prohibition where there has been a matter of procedural fairness. They regard jurisdiction as an area of procedural fairness. Can grant prohibition. Use original intent theory.
• Kirby has different approach to remedies available- rejects the approach of looking at original intent of the framers. Writs of prohibition and mandamus were not fixed for all time when the constitution was framed. Developments in England shouldn’t influence constitutional remedies in Australia.
• A lack of procedural fairness is an error of jurisdiction.
• Where PF is breached resulting in excess jurisdiction, prohibition is given almost as of right.
o Kirby believes certiorari is more appropriate remedy
• NB: the court says they have discretion- don’t need to grant the remedies if see a reason why they shouldn’t.
• Relief only withheld where:
o Compliance with procedural fairness would have made no difference;
o Where a person has been slow to assert their rights;
o Where a person may be taken to have waived rights;
o Where the argument/breach of PF has been trivial;
o Where decision would result in disproportionate inconvenience or injustice. NB Project Blue Sky
• Courts must adhere to the fair hearing rules. This means govt officials given power must work within that power, not acting on “some personal predilection”. Similarly, it won’t be necessary have proceedings based on “insignificant, purely formal and immaterial mistakes”.
• Question of fact- the impact a hearing would have had on the tribunal’s decision.
• Constitutional writs of mandamus and prohibition are available, as are those of certiorari and injunction
2.2 ADJR Act
Lamb v Moss (1983) 49 ALR 533
Facts: Moss was a doctor charged under the Crimes Act (Cth) of conspiracy to defraud the Commonwealth. In committal proceedings a prima facie case found under a different offence. Magistrate refused to allow cross-examination of Crown witness and indicated he did not propose to discharge Moss under the Justices Act. Moss commenced under ADJR act for review magistrate’s decision.
Held:
- Nowhere, except in s 10(2)(b) does the Act [ADJR Act] expressly empower the court to refuse relief, although obviously that power must exist when no basis for relief is established.
- Once jurisdiction of courts properly enlivened under ADJR Act (standing and decision of admin character under an enactment) there is an obligation to entertain an application
- But basis for relief under the act must be established
- Federal court has the same discretion to grant or refuse relief as courts do dealing with an application for traditional common law or equitable remedies
- Order for review in respect of committal proceedings only made in ‘most exceptional circumstances’.
- Court will always entertain the application so long as grounds made out but they do have the discretion to grant relief.
ADJR Act s 10
S10(1)(a) rights in the act are in addition to any other rights the person has to seek review
(2)(a) can decline to exercise jurisdiction if the applicant has already sought review by another means or they should seek review by another court/body, pursuant to another act.
3. STANDING, INTERVENTION, JOINDER AND FRIENDS OF THE COURT
4. STANDING
4.1 Prerogative remedies
The prerogative remedies in public law (used in state courts where codified) are:-
- Prohibition = stop proceedings to prevent illegality. Can’t be used once a decision is reached.
- certiorari = quashing of a decision (gives superior cts a supervisory role over decisions made by lessor bodies (on the ground of non juris error, of law on the face of the record, juris error or procedural unfairness)
- mandamus = compelling order against reluctant administrators to carry out functions lawfully. A person whose legal specific right is affected has standing to seek mandamus.
Injunctions and declarations, from private law, may also be sought in judicial review actions
The principles relating to standing to seek judicial review have differed according to the remedy sought
Availability:
Relief in the nature of C and P will lie: “wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority”: R v Electricity Commissioners ex p London Electricity Joint Committee (1924), per Atkin LJ
Lord Atkin’s dictum is still the locus classicus for the availability of the 2 remedies, but over the years there have been some judicial refinements:
* As to the question of when a body has “legal authority”, the courts now appear to be moving to a position where the essential question is not the formal source of power to determine rights but whether the authority being exercised is sufficiently ‘public’ in nature: see R v City Panel on Takeovers and Mergers; ex p Datafin plc (1987). In the past, relief was held to be unavailable where the body in question was a private or domestic body or where the matter complained of was a private law matter of a public body: see R v BBC; ex p Lavelle (1983)
* The requirement as to “rights” was relaxed quite early to allow the remedies to lie where rights in the strict legal sense (eg. proprietary rights) were not actually being determined by the body in question. However it is still generally considered necessary that the ‘determination’ in question create or affect rights and obligations in some substantive way (see R v Collins; ex p ACTU-Solo Enterprises Pty Ltd (1976); Greiner v ICA/Moore v ICAC (1992), even if the particular decision is not the final or ultimate one.
* In contrast, in Hot Holdings v Creasy, it was held that a preliminary decision or recommendation, if it is one to which regard must be paid by the final decision maker, would have the requisite legal effect upon rights to attract certiorari
* The duty to act “judicially” is now interpreted as a duty to act fairly in thew making of administrative decisions affecting rights, interests and legitimate expectations: see Ridge v Baldwin (1964); Kioa v West (1985)
R v Justices of Surrey (1870) LR 5 QB 466
• A party aggrieved has standing to seek prohibition or certiorari. The person has to suffer damage to an interest greater than the ordinary members of the public. A person is aggrieved if his or her interests are affected by a decision of a tribunal or inferior court made in excess of jurisdiction.
• A member of public has standing at the discretion of the court.
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
* Sinclair had standing because as an objector to an application for a mining lease, over 1100 acres of Fraser Island, he had the right to have the hearing of the application conducted according to the law. Objection that sandmining against the public interest because of irreversible damage to the environment.
* Courts held he has a legal right because has a statutory right to be an objector. has standing to object in the public interest.
* Courts often use a ‘sufficient interest’ test or test in ACF instead of the traditional test set out above. Can approach this kind of question using the ACF test.
* Note► In more recent years, the test of “special interest” (see ACF Inc v Cth (1980)), applicable to actions for equitable relief, has (in the absence of a right of statutory standing) sometimes been applied: see, for example, Mirror Newspapers Ltd v Walker (1985); State Planning Commission; ex p Helena Valley/Boya Assoc Inc (1990)
* In the absence of a statutory right of standing, a person has a special interest in the subject matter of the proceedings for the purposes of relief in the nature of certiorari and prohibition if the person’s interests may be prejudicially affected in some way and the person is someone other than a “mere busybody”: see R v Liverpool Corporation (1972); R v Corporation of the City of Burnside (1987)
http://www.studentatlaw.com/articles/115/2/Part-E---Access-to-Court-amp-Judicial-Remedies/Page2.html
http://www.studentatlaw.com/articles/115/2/Part-E---Access-to-Court-amp-Judicial-Remedies/Page2.html
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