GROUNDS OF JR – Procedures required by law were not observed
State Grounds for Judicial Review:
Here it is necessary to examine the following grounds:
• [list grounds]
PROCEDURES REQUIRED BY LAW WERE NOT OBSERVED:
The [s5(1)(b) AD(JR) Act (Cth) / s20(2)(b) JR Act (Qld)] provides that procedures that were required by law to be
observed [in connection with = (Cth)/ in relation to = (Qld)] the making of the decision were not observed; is a ground for
Historically this ground at CL provided for a distinction between mandatory and directory decisions; however this
distinction is abolished and task is to examine the procedural provision in question and decide whether parliament
intended that a decision in violation would be invalid: Project Blue Sky.
Here the legislation is [act], specifically, section ________; and the [Applicant] would be arguing that there is an
intention in the legislation that contravention results in invalidity.
1. Firstly after looking at the act as a whole the purpose of the act with reference to: Project Blue Sky
• Language of relevant section
• Scope of statute
• Object of the Act
appears to be: _________. And therefore; the wording suggests that [procedure] [would/n’t] be required because it is:
IF essential pre-condition to exercise:
An essential pre-condition before exercising the power, as shown by ________(sections/wording/purpose).
IF simply regulating the exercise of power which is conferred elsewhere:
Simply a section to regulate the exercise of power which is conferred elsewhere in section ____; because
IF procedure is significant or substantive:
Here the procedure is significant and substantiative and thus would likely impact on the reasonableness of the
decision-making process. Because of this, it is more likely that Parliament required that step to be taken before
the valid exercise of the power; and a decision would be invalidated if the requirement is not applied to the letter:
Project Blue Sky.
IF procedure is merely technical:
Here the procedure is merely technical and thus it wouldn’t be likely to impact on the reasonableness of the
decision-making process. Because of this it is unlikely that Parliament intended that step be required before a
valid exercise of the power; and a decision would be valid even if the requirement is not applied to the letter:
Project Blue Sky.
3. Finally it is worthy to note that the statutory action may be a more liberal approach than common law judicial review -
the words [in connection with = (Cth)/ in relation to = (Qld)] – suggest a mere relationship between one thing and
another, not necessarily a causal relationship between the two things: Ourtown FM v ABT (Davies J).
As such, _________. However Minister for HFS v Jadwan does seem to set limits on this expansive approach.
Why NOT Void:
a) No rule like quality: Project Blue Sky “ABA would perform duties consistent with it’s treaty obligations” -
therefore more administration of power rather than validity.
b) Treaty obligations: Project Blue Sky “international conventions and agreement are expressed in indeterminate
language and often are more aptly described as goals to be achieved rather than rules”
c) Huge Public Inconvenience: Project Blue Sky “if standards created were voided by treaty – scheduling etc.”
d) Following procedures that were not required to follow: Minister for HFS v Jadwan “did procedure that wasn’t
required to do – was mistaken” Why Void:
a) Feedback was important: Scurr v Brisbane CC “therefore full compliance with notice important”
b) Huge Public Impact: Scurr v Brisbane CC “big effect on the community with such a development”
c) Concerned Public Safety: JJ Richards v Ipswich CC “disposal of commercial/industrial waste”
d) Public Inconvenience if not strictly required: Hunter v Melville “could make multiple claims, which was unfair
advantage legislation sought to avoid”
e) Highly Competitive Industry – Regulation: Hunter v Melville “highly competitive industries require strict
f) Elaborate application: Scurr v Brisbane CC “the more elaborate the application the greater need for detail”
N.B. Prescribed Forms: Court will lean away from need to lodge in prescribed form unless there is a very clear
legislative intent it be used or unless there is some intrinsically important purpose is to be achieved by it: JJ Richards v
Ipswich CC (There is was public safety needs)
CASE SUMMARIES: (Full below)
• Project Blue Sky: Treaty obligations on Television broadcasting – inconsistent with new standards – NOT VOID
• Minister for HFS v Jadwan: Followed wrong procedures to revoke nursing home licence – NOT VOID
• Scurr v Brisbane CC: Insufficient particulars for council approval to build shopping centre –VOID
• JJ Richards v Ipswich CC: Poorly written application to dispose of commercial/industrial waste –VOID
• Hunter Resources v Melville: Marking of ground in mining application in specific intervals –VOID
• Minister for HFS v Jadwan: Mistakenly followed wrong procedure – but not required to follow any –