LAWS2201 Lecture Notes - Lecture 5: Ultra Vires, Statutory Interpretation, Certiorari
Administrative Law
Week 3 – Seminar A
Judicial Review Remedies
- When faced with a judicial review problem:
o Which court?
o Can I seek judicial review in this court?
- Why would you not go straight to the HCA?
o Most likely they will send you to the Federal Court.
o The Judiciary Act (s 39B):
▪ Gives the Federal Court same jurisdiction
▪ HCA has a remittal power
- Elements of judicial review:
o Court has jurisdiction: decisio… of a adiistrative character…ade uder
a eactet… (ADJR Act)
o Grounds of review:
▪ Breach of an administrator to behave or act in a particular error –
there is a legal error (ultra vires – beyond their power).
o A person of standing
o Remedy is available (focus of this class)
- Two ways of thinking about remedies: common law and ADJR Act.
Common Law Remedial Model
- The CL developed over time through disorganised judges and judgments.
- Based on the availability of remedies
- Main remedies were:
o Certiorari: invalidates – deprives decision of its legal effects (quashes).
o Prohibition:
o Mandamus: decision maker has an obligation to exercise a power or
jurisdiction and does not perform – even though the legislation places a
requirement for that person to do so. Court can then impose that obligation.
- In addition to these prerogative writs judges bega to use piate la euitale
remedies such as injunctions and declaration.
o From a functional point of view, these remedies shadow the prerogative
writs.
▪ E.g. a mandatory or prohibitory injunction.
- This remedially orientated way of review was formulary in nature – that meant to
get the remedy you needed to establish certain requirements for that remedy.
o When it came to the nature of errors you needed to show (except for
certiorari) there had to be a JURISDICTIONAL ERROR.
▪ In the case of certiorari there was an exception: could seek for
remedial non-jurisdictional error (in limited circumstances) → if the
error appears on the face of the record (refer to Craigs Case)
- When at CL you get certiorari for non-jurisdictional error vs jurisdictional
o Non-jurisdictional errors will be applied prospectively
o Jurisdictional errors will be applied retrospectively
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Why would you not go straight to the hca: most likely they will send you to the federal court, the judiciary act (s 39b), gives the federal court same jurisdiction, hca has a remittal power. Two ways of thinking about remedies: common law and adjr act. The cl developed over time through disorganised judges and judgments. In addition to these prerogative writs judges bega(cid:374) to use p(cid:396)i(cid:448)ate la(cid:449) (cid:858)e(cid:395)uita(cid:271)le(cid:859) remedies such as injunctions and declaration: from a functional point of view, these remedies shadow the prerogative writs, e. g. a mandatory or prohibitory injunction. In the case of certiorari there was an exception: could seek for remedial non-jurisdictional error (in limited circumstances) if the error appears on the face of the record (refer to craig(cid:859)s case) In state supreme courts can only get certiorari for non-jurisdictional errors on the face of the record: and s 75(v): the hca has held that the prerogative writs are only available for jurisdictional errors.
