LLB230 Lecture Notes - Lecture 12: Res Judicata, Rsa Insurance Group, William Gummow
WHAT ARE JUDICIAL REVIEW
REMEDIES?
When a person seeks judicial review,
what is it that he or she wants the court
to do with that decision?
The Different Categories of Remedies
Prerogative or Constitutional Writs
Inherited from the UK common law.
Prohibition, certiorari, mandamus,
habeas corpus, quo warranto,
scirefacias, ne exact regno, procedendo.
Complex.
In the High Ct, some prerogative writs
are called 'constitutional writs'.
Jurisdiction
Federal Ct has original jurisdiction to
issue mandamus & prohibition (s39B
Judiciary Act
1903).
The Federal Ct also has an ancillary
jurisdiction to issue remedies not
granted by the court's original
jurisdiction (e.g. certiorari and habeas
corpus) (ss 22-23 Federal Court of
Australia Act 1976 (Cth)).
Most State courts have simplified the
procedure. 'An order in the nature of
certiorari, prohibition or mandamus'
High Ct has original jurisdiction to issue
mandamus & prohibition (s75(v)
Constitution ).
The High Ct has an ancillary jurisdiction
to issue remedies not granted by the
High Court's original jurisdiction (s31
Judiciary Act 1903 (Cth)) (i.e. certiorari)
and in particular habeas corpus,
prohibition, mandamus and quo
warranto (s33 Judiciary Act 1903 (Cth)).
Equitable Remedies
Injunction and declaration
Origins in the UK Court of Chancery
Cross private and public law
Not constrained by jurisdictional error
Jurisdiction
Federal Ct has original jurisdiction to
issue an injunction (s39B Judiciary Act
1903).
The Federal Ct has an ancillary
jurisdiction to issue a declaration
(Federal Court of Australia Act 1976
(Cth) s 21).
High Ct has original jurisdiction to issue
an injunction (s75(v) Constitution).
The High Ct has an ancillary jurisdiction
to issue remedies not granted by the
High Court's original jurisdiction (s31
Judiciary Act 1903 (Cth)) (i.e.
declaration)
Statutory Remedies
Section 16(1) ADJR Act 1977 (Cth)
(1) On an application for an order of
review in respect of a decision, the
Federal Court or the Federal Circuit
Court may, in its discretion, make all or
any of the following orders:
(a) an order quashing or setting
aside the decision, or a part of the
decision, with effect from the date of the
order or from such earlier or later date
as the court specifies;
(b) an order referring the matter
to which the decision relates to the
person who made the decision for
further consideration, subject to such
directions as the court thinks fit;
(c) an order declaring the rights
of the parties in respect of any matter to
which the decision relates;
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(d) an order directing any of the
parties to do, or to refrain from doing,
any act or thing the doing, or the
refraining from the doing, of which the
court considers necessary to do justice
between the parties.
Also confer power on courts to make an
order regarding conduct (s16(2)) and
failure to make a decision (s7, s16(s)).
Designed to match the common
law/equitable remedies but are in
reality, broader.
Minister for Immigration and Ethnic
Affairs v Conyngham (1986) 11 FCR 528
S16 should be construed liberally
Where there is residual discretion in the
Minister, s16(1)(b) (remittal) should be
used, not s16(1)(d) (new order) (nb.
facts/law distinction)
Park Oh Ho v Minister for Immigration
and Ethnic Affairs)
Do not create damages
'Any matter' (s16(1)(c)) to be
understood as any matter connected to
the decision (liberal construction)
'Re Refugee Review Tribunal; Ex parte Aala
Guadron and Gummow JJ:
Terms such as 'prohibition' are not
simply institutions or concepts of the
general law. They are constitutional
expressions. The term 'constitutional
writ' is preferable to 'prerogative writ'.
Kirby J: These writs are given special
significance by reason of their
constitutional use and context.
how in australia
The Different Types of Remedies
Certiorari
Enables a superior court to quash a
decision based upon:
Jurisdictional error (including a breach
natural justice)
Fraud
An error of law on the face of the
record, which includes 'non-
jurisdictional' errors
(Craig v South Australia (1995) 18 CLR
163)
What is the 'face of the record'? – only on
the decision itself
Documents that are 'permanent
memorial' and testimony' of the
proceedings
Includes the documents that initiated
the proceedings (i.e. pleadings), as well
as those that contained the adjudication
(i.e. formal orders).
Does not include evidence, unless
incorporated
(R v Northumberland Compensation
Appeal Tribunal; Ex parte Shaw [1952]
1KB 338)
Reasons or transcripts are not included
unless the tribunal specifically includes
them
(Ex parte Shaw; Craig v South Australia
(1995) 184 CLR 163)
Who/what will the Court Issue Certiorari
Against?
A body of persons of a public character
that has to determine matters affecting
subjects 'must act judicially' (R v
Criminal Injuries Compensation Board;
Ex parte Lain [1967] 2 QB 864);
A body that can 'determine questions
affecting the rights of subjects' or has a
'discernible or apparent legal effect
upon rights' (e.g. a public
administrator). However, where the
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Document Summary
Prohibition, certiorari, mandamus, habeas corpus, quo warranto, scirefacias, ne exact regno, procedendo. In the high ct, some prerogative writs are called "constitutional writs". Federal ct has original jurisdiction to issue mandamus & prohibition (s39b. The federal ct also has an ancillary jurisdiction to issue remedies not granted by the court"s original jurisdiction (e. g. certiorari and habeas corpus) (ss 22-23 federal court of. "an order in the nature of certiorari, prohibition or mandamus" High ct has original jurisdiction to issue mandamus & prohibition (s75(v) Judiciary act 1903 (cth)) (i. e. certiorari) and in particular habeas corpus, prohibition, mandamus and quo warranto (s33 judiciary act 1903 (cth)). Federal ct has original jurisdiction to issue an injunction (s39b judiciary act. The federal ct has an ancillary jurisdiction to issue a declaration (federal court of australia act 1976 (cth) s 21). High ct has original jurisdiction to issue an injunction (s75(v) constitution).
