Monday, January 28, 2013



Prerogative Remedies
-    Mandamus – we command  we want an order of mandamus forcing the person to make a decision in accordance with the law. Or want an order now
-    Prohibition – Stop a decision from being made. If you had found out about the decision earlier, we could have granted remedy of prohibition, but too late
-    Habeas Corpus – stopping access to ct; detainment
-    Certiorari – decision affected by unlawfulness, therefore will be set aside. It is as if the decision was never made, becomes null and void. Then it goes back to the decision maker. The minister has to make the decision in accordance with the law. It is an effective remedy because theoretically the decision-maker can’t make the same decision again.

Equitable Law remedies (Private Law remedies)
-    injunction
-    declaration

1.1    Remedies at General Law and under Commonwealth Constitution

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564   

Facts: Ainsworth investigated to see whether they were able to be allowed to have gambling in their companies. Claimed breach of PF and asked for any prerogative remedy Ainsworth asked for certiorari, setting aside the report, mandamus and prohibition


-    CJC making adverse findings
-    Mandamus (forcing a hearing- ask for when enforcing a statutory duty) not appropriate as CJC not under stat duty to make findings- was done at the request of the minister. Mandamus not appropriate remedy unless can show there is a statutory duty which must be performed.
-    Certiorari (setting aside a decision) not appropriate as no ‘decision’ has been made under the Act- the CJC simply investigating.
-    The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review.  The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect.  The appellants may be granted a licence in direct opposition to the report.  There being no legal effect of the report certiorari will not be appropriate.
-    Certiorari may be granted in a case where rights are subjected to a new hazard, as where a recommendation operates as a precondition or bar to a course of action, or as a step in a process capable of altering rights.
-    Prohibition would be appropriate if advance knowledge that CJC about to make adverse findings aware of the fact certain proceedings are underway and ask court to prevent continuation of conduct. Too late because already made its findings and report.
-    It is now accepted that superior courts have inherent power to grant declaratory relief.  However it is confined by the considerations which mark out the boundaries of judicial power.
-    The person seeking relief must have a real interest and relief will not be granted if the question is purely hypothetical.
-    The present case involves no mere hypothetical question.  At all stages there has been a controversy as to the Commission’s duty of fairness.
-    Declaration (that CJC should have afforded them the rights of PF) the appropriate remedy for lack of PF. Court has declared proceedings unlawful-  minister can’t rely on the report.
-    The appeal should be allowed.  The order of the Full Court of the Supreme Court of Qld should be set aside and, in lieu thereof, it should be declared that, in reporting adversely to the appellants the Commission failed to observe the requirements of procedural fairness.  The order nisi for writs of certiorari and mandamus should be discharged.  The Commission should pay the appellants’ costs of the proceedings in the Supreme Court and of this appeal.

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149  

Facts: Hot Holdings Pty Ltd sought certiorari with respect to a recommendatory decision by a mining warden to conduct a ballot for the purpose of determining the party entitled to priority under the Mining Act 1978 (WA).  The mining warden’s recommendation was a precondition to a decision by the Minister and had a discernible legal effect upon the Minister’s exercise of discretion.

PRINCIPLE: If recommendation is a precondition to a decision under the statute then certiorari (setting aside the decision) is available.

-    HC liberalised the test of when certiorari is available. The majority held that certiorari lies where a preliminary decision must be taken into account by a body entrusted with the power to make a decision directly determining legal rights. As a result, certiorari was available with respect to a recommendatory decision by a mining warden to conduct a ballot
-    Following from ABT v Bond- if a recommendation is made as a stat requirement prior to the final decision being made, it is treated as a decision and certiorari is available.

-    Certiorari is well-known as the remedy issued for error of law on the face of the record, but is also appropriate for jurisdictional error and denial of procedural fairness.
-    Prohibition is available to prevent an excess of jurisdiction or a denial of procedural fairness.  Prohibition rather than certiorari is the appropriate remedy where the tribunal or inferior court has not yet completely determined a matter.
-    Mandamus is available to compel the performance of a public duty, including a duty to exercise a statutory discretion.  A constructive failure to exercise jurisdiction may attract relief in the form of mandamus.  For mandamus however the court must be convinced that the administrator had a duty, not merely a discretionary policy decision.  
-    The jurisdiction of a superior court to grant declarations in judicial review is wide and discretionary, and the declaration is now a more common form of relief in judicial review at general law than the prerogative remedies.
-    Interlocutory injunctions are granted where there is a serious question be tried and balance of convenience favours intervention by the court pending the hearing of the application for a final injunction.

Re Refugee Review Tribunal; Ex parte Aala (2001) 75 ALJR 52
Constitution s75 (v)  HC has orig jurisdiction to hear matters against Cth official in which mandamus, prohibition etc is awarded.

-    HC had to decide whether constitution includes the remedy of certiorari even though not expressly in s75 (v). HC said it had the power to grant certiorari under the constitution because it is ancillary and incidental. Read s75 (v) as including the right to grant remedy of certiorari.
-    HCA had to decide whether there were restrictions on granting remedies.
-    Kirby J: shouldn’t call remedies under constitution prerogative remedies. Under constitution remedies are specifically enumerated in constitution s75  they are constitutional remedies.   don’t need to look to CL
-    constitutional not prerogative writs

1.2    ADJR Act Reform

ADJR Act ss 15, 16

S15 – Application to the court under s5 in relation to a decision does not affect the operation of the decision or prevent the taking of an action to implement the decision but
a)    a court may by order (on conditions it thinks fit) suspend the operation of the decision and
b)    the court may order (on conditions it thinks fit)  a stay of all or any proceedings under the decision.
The court may make such an order of its own motion or on the application of a person who made the application under s5.

S16 – (1) On application for an order of review of a decision the court may, in its discretion make any of the following orders:
a)    an order to quash or set aside decision or part of decision [certiorari]
b)    an order referring the matter for further consideration by the person who made it.
c)    An order for declaration of rights of the parties [declaration]
d)    An  order directing the parties to do any act or thing that the court considers necessary for justice [mandamus]

(2) on application for review of conduct that has been, is being, or will be engaged in to make a decision the court may
a)    order declaring rights
b)    order to do or refrain from act

(3) on application for review of a failure to make a decision court may
a)    order directing the making of a decision
b)    order declaring rights of parties in relation to making a decision
c)    order to do or refrain from act

(4) The court may at any time revoke, vary or suspend the operation of any order made under this section.

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637   

Facts: 7 Korean businessman came to Australia illegally and were arrested. Deportation orders were issued. DPP wanted them to stay as witnesses in prosecution of Korean person and corrupt officers of Customs involved in the illegal immigration scheme. Stayed for 3months until told they were not obligated to stay longer. They sought review under ADJR act and a stay of the execution of the deportation orders. The applicants granted leave to appeal to HC confined to the question whether the Full court was correct in declining to declare that the detention was unlawful from the date of the deportation orders.

-    Leg purpose of S16- allows flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will do justice and avoid unnecessary litigation.
-    In the present case- where the decision is a deportation order which has been found to be null and void ab initio and the person is still in custody of the decision maker, an injunctive order that the respondent do whatever be necessary to procure the applicants release could be properly considered as ‘necessary to do justice between the parties’.
-    Each appellant was entitled to a declaratory order that his detention was unlawful in addition to an order formally quashing the deportation order on which the detention was based.
Appeal allowed.


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