REMEDIES – COMMON LAW
To understand common law remedies need to understand way in which you have to institute common law judicial review
outside statutory judicial review. Courts over time allowed use of two remedies developed in Equity to be used in
administrative and public law: namely, 1. Prerogative Writs 2. Administrative laws use of equitable remedies
1.1 Prerogative Writs
Originally prerogative writs to stop travelling judges from dispensing the incorrect law; but evolved to allow the courts to
control the actions of quasi-judicial tribunals and administrative bodies.
• Certiorari – ‘quashes’ a decision of an inferior court where the decision of the inferior court could be shown to be
infected by jurisdictional error. The court has already made the decision.
• Prohibition – ‘prohibits’ the inferior court from embarking on the process of decision making – stopped the court
from making a decision because the court had not jurisdiction to enter onto the field. This writ is sought where you
argue that the administrative body has gone off the rails before making its decision. It prevents the court from going
• Mandamus – ‘compels’ a decision maker to make a decision. For instance, if you satisfy all the requirements for a
fishing licence and the public official is refusing to issue you with a licence, writ of mandamus will compel them to
make a decision by law to perform their function.
1.2. Requirements for Relief:
A) & B) Certiorari & Prohibition
Designed originally to control magistrates and visiting judges; originally available to correct jurisdictional error.
However, grown to include specific types of non-jurisdictional error. Available if 2 elements of the ‘Atkin
formula’ are satisfied: R v Electricity Commissioners.
Element 1: Exercise of “public” power or authority
Only available in the exercise of public law, not private law rights by a public authority: R v British
Broadcasting. The situation here is similar to [pick from cases], and therefore _______.
• Powers under contract are not exercise of public power: Griffith Uni v Whitehead.
• Prerogative powers can be reviewed: R v Criminal Injuries Compensation Board.
• Magistrate’s committal hearings can be reviwed: Commissioner of Police v Cornack.
EXAMPLE R v British Broadcasting; Ex parte Lavelle
Sought a writ of certiorari to quash the decision – dismissing employment from BBC.
HELD: Dismissal was an exercise of a contractual power which emanated from consensual agreement
between the parties - therefore not public powers.
EXAMPLE Griffith Uni v Whitehead
IT head put under enquiry for student grade to ensure he got financial assistance. Was formally censured for
conduct for not helping with enquiry.
HELD: Exercise of their contractual powers under industrial relations contract, not part of public powers.
EXAMPLE R v Criminal Injuries Compensation Board; Ex parte Lain
Criminal Injuries Compensation Board set up, debated and announced in both houses of parliament, Board
appointed by Secretary of State and money for it appropriated from parliament.
HELD: Its decisions were public powers regardless of lack of legislation - certiorari was available.
However failed on merits – couldn’t show error of law.
Element 2: Decision sufficiently affects the applicant
Decision must sufficiently affect the applicant rights. Question was whether or not the decision you are
seeking to review has a discernable legal effect on the rights of the applicant: Hot Holdings v Creasy.
• Report that results in recommendations – not sufficiently affect rights: Ainsworth v CJC
• Damaged reputation – sufficient only to get a declaration: Ainsworth v CJC • Interim Decision – sufficiently affects rights IF it is a condition-precedent to final decision (i.e.
must be taken into account my Minister): Hot Holdings v Creasy
• Interim Decision – not sufficiently affects rights IF magistrate’s committal hearing, which as yet
does not have the ability to affect the rights of the person: Commissioner of Police v Cornack
EXAMPLE Ainsworth v CJC
Poker report with adverse comments about Ainsworth; had no legal effects or consequences; Certiorari only
available where person’s legal status is affected because its effect is to quash the legal status of the decision.
Irrelevant that reputation damaged - sufficient only to get declaration (Under equitable remedy – procedural
fairness not complied with).
EXAMPLE Hot Holdings v Creasy
Act created a 2 stage decision making process; Minister had power to grant an exploration licence or a mining
lease after receiving a recommendation from the mining warden. Act also said if mining warden was faced
with a number of applications for an exploration licence lodged at the same time, the mining warden could
conduct a ballot in order to determine the priority in dealing with these applications. He did so – Hot
Holdings challenged warden’s decision to conduct a ballot to determine priority of applications.
HELD: 3:2 that writ of certiorari was available. Q. Does a discernable or apparent effect on applicant’s legal
rights? i.e. final decision is condition precedent on earlier one.
Here, Minister was bound to take account of the mining warden’s decision because if he refused to, you could
attack it on the ground of failure to take into account relevant considerations - to that extent, the mining
warden’s decision sufficiently affected the applicant.
Where final decision cannot be made without having regard to the preliminary decision, or where the
preliminary decision is a condition precedent to the making of a final decision. .
EXAMPLE Commissioner of Police v Cornack
Committal proceedings are administrative rather than judicial; Courts will issue certiorari where there has
been a serious error of law - only in the most extreme cases.
Here, sufficient evidence to put person to trial, so no error of law.
Element 3: Circumstances where certiorari and prohibition aren’t available
A) Governor-in-Council/State Governer: certiorari does not lie against the Vice-Regal authority: FAI
Insurances v Winneke.
i.e. because they are given at the behest of the Crown so it would be odd for the Crown to direct itself
B) Decisions of a “legislative character”: R v Wright; ex parte Waterside Workers Federation.
However, if in making of decision of a legislative character authority breaches rules of procedural
fairness by not entertaining a submission by a party who is going to be affected by a decision of a
legislative character, the writs will apply in that situation: Wright.
Legislative Character – if state of the law as general application to everybody changed as a result of the
Element 4: Writs are discretionary
Factors such as delay, futility, motive may be relevant; although may be less relevant under constitutional
writs under s75(v) or s39B Judiciary Act: SAAP.
Writ of mandamus is available to compel the exercise of a public duty, where it is imposed by law - does not entitle
the application to a certain substantive decision, just that a decision will be made. However where there were no
further discretionary facts available that would mean the court would compel the making of the decision: Comm. of
State Revenue (Vic) v Royal Insurance Aust.
Element 1: ‘Public Duty’
Mandamus only available where the authority is under a specific public duty to be exercised: Ainsworth v
EXAMPLE Ainsworth v CJC
HELD: Mandamus was not available because the CJC was not under any public duty to issue the report;
rather it was requested by a Minister.
Element 2: Owed by a ‘Public Official’ Also can be used against public bodies, refusing to exercise their jurisdiction: Sinclair v Mining Warden at
Element 3: Circumstances where mandamus isn’t available
Does not lie against the Crown, as it is generally issued at the behest of the Crown: R v Governor of South
Australia (Thus not Governor or Governor-General).