#7232 - Remedies I - Administrative Law

There are three types – prerogative writs (certiorari, prohibition, mandamus, habeas corpus), equitable remedies (declaration, injunction) and statutory remedies available under the ADJR Act
The origins lie in the 13^th century system of the KB’s ability to call officials to account for their actions – they included:
- Certiorari – command an inferior court to certify its record of proceedings; allowing superior courts to quash them for an error of law
- Prohibition – restrained inferior courts from exercising their power
- Mandamus – ordered executive officers to perform their public duty
- Quo warranto – required DMs show by what authority a person held a public office
- And others (scire facias, ne exeat regno, procedando)
- Habeas corpus – required a person in custody be brought before the court so that the legality of their detention can be decided
  - Certiorari, prohibition and mandamus are the most common but habeas corpus and quo warranto still perform a public law function (e.g. Vardalis and Hicks)
The procedure for prerogative writs became increasingly complex and as KC Davis pointed out “no remedy would lie when another is available [and] the lines between the remedies would be complex and shifting”
- Australia has however overcome these procedural complexities with the introduction of statutory judicial review procedures in the ADJR Act
  - And in Australian jurisdictions (except the HCA and WA) a simpler procedure of ‘obtaining an order in the nature of certiorari, prohibition or mandamus’ is possible by way of summons to commence proceedings and a court order to conclude them
- The essence of the procedure for prerogative writs is that ordinarily:
  - Applicant appears before the court ex parte (‘prosecutor’) to obtain a rule nisi calling on the government officer upon whom the rule is to be directed to show cause on a day why the writ shouldn’t issued
  - On the day both sides appear and argue – the court either discharges the rule nisi (rejects the application) or makes it absolute and issues the remedy sought
- The Federal Court is in a special position – having jurisdiction under the ADJR Act and also the Judiciary Act (for mandamus, prohibition and injunction) and under the FCA Act to grant other remedies on an ancillary basis (declaration, certiorari, habeas corpus)
- The HCA no longer prefers ‘prerogative writs’ since it derives its powers from the constitution s75(v) – hence the use of the term ‘constitutional writs’ which rather than semantics actually has different legal principles applying
  - Bodruddaza – provisions in the Migration Act imposing a rigid time limit on obtaining a constitutional writ held invalid
  - Possible that the constitutional writs are more readily available to restrain Cth action involving jurisdictional error – e.g. HCA can grant certiorari to quash an FCA court decision contrary to the principle that certiorari doesn't issue against superior courts
In earlier times equitable remedies were exercised by the Court of Chancery, separate and distinct from equitable remedies but after the Judicature Act this changed – but even though the equitable jurisdiction is distinct it is common to use ‘judicial review’ to cover prerogative writs, equitable remedies and statutory JR remedies
Declaration is the most commonly used administrative law remedy due to its flexibility and the preparedness of government agencies to abide by these declarations. This is for two reasons:

Equitable remedies can be used without differentiating between public/private matters; meaning the distinction between public/private law doesn't become a remedial issue. The prerogative writs on the other hand can only be used in public law matters
The time limits applying for equitable remedies are less strict

But there are situations were prerogative remedies are more desirable – e.g. formally quashing decisions to revoke licenses or impose sanctions. Also the standing requirements for them are more liberal than for equitable remedies

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Facts: In considering a breach of natural justice the court dealt with the appropriate designation of s75(v) as ‘constitutional writs’

Gaudron and Gummow JJ:

In the operation of s75(v), terms like ‘prohibition’ and ‘jurisdiction’ aren’t just institutions of the general law – they are constitutional expression
Though in England the ‘prerogative writ’ was named in respect of the intimate connection with the Crown’s right – in Australia Parliament is only connected to the Judicature by s72(i) (appointment) and isn’t an element of the judicature established by Ch III
Hence what is enforced by s75(v) is fidelity required by covering the Constitution rather than the fidelity owed to the Crown because of the constitutional structure – ‘prerogative writ’ is an inapt description of the remedies granted by a court exercising the judicial powers of the Commonwealth – ‘constitutional writ’ would be preferable
Prohibitionn in AU goes against officers in a way not contemplated by the King’s Bench; it can hence be awarded for activity beyond the executive power of the Cth in s61.
Also the common law didn’t take into account errors of superior federal courts in determining the constitutional limitations of its own jurisdiction but in AU “the jurisdiction to grant Prohibition under s75(v)...is not necessarily governed by the same principles as those which govern the common law jurisdiction of a superior court to grant prohibition to an inferior court

Certiorari enables superior courts to quash decisions for jurisdictional error, breach of natural justice, graud or error of law on the face of the record (which all overlap). Atkin LJ says in London Electricity Joint Committee:

“Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench division exercised in these writs

The requirement of ‘acting judicially’ reflects the origin of the writs – being direct to inferior courts/tribunals requiring it to certify its official record to superior courts to be scrutinized for legal error. The notion has broadened over time as other elements of natural justice, now applying to administrators as well as courts and tribunals
The question of ‘determining questions affecting the rights of subjects’ is now framed as ‘it is granted only where there is something that has a discernable or apparent legal effect upon rights, that is, something that can be quashed (Hot Holdings)
- Whether preliminary steps/reports can be subject to this is in issue – it generally will be refused if a more convenient and satisfactory remedy exists
It is also only directed to ‘legal authority’ – but this is extended to bodies established by the prerogative but not to non-government bodies exercising public sector power

Another issue is the scope of ‘the record’ in the context of quashing an error on the face of the record. Since for such non-jurisdictional errors regards generally can’t be had to evidence outside the record (as can be for jurisdictional errors; a difference exists:
- One school of thought says the record should be construed narrowly and not includes reasons for decision given by the court – thereby limiting judicial reviews of proceedings of inferior courts to jurisdictional/non-jurisdictional errors appearing on the face of the record, narrowly construed.
  - For other errors, statutory appeal mechanisms would have to be relied on.
- The other is that judicial review is appropriate to correct legal errors generally; especially those by tribunals – this is supported in NSW

R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338

Facts: Tribunal made a decision granting S compensation on the basis of 13 years employment with a hospital board. He sought certiorari to quash it because they should have included additional service with a local government authority. The KB agreed there was an error of law but denied certiorari since it was a error within jurisdiction. On appeal the CA held that certiorari could be used to quash an error of law on the face of the record whether jurisdictional or non-jurisdictional

Denning LJ:

Lord Denning began by considering the history of certiorari as being used to control inferior tribunals and them within their jurisdiction – its supervisory role going to: the area of the inferior jurisdictions and conditions of its exercise, and the observance of the law in its course of exercise. He also referred to the recent trend to disregard its capacity being used to correct errors on the face of the record, commenting that the chief justice in the below court restored certiorari to its correct position:

Certiorari is only available to quash a decision for error of law if the error appears on the face of the record
- The record should contain, or recite, the document of information which initiated the proceedings and thus gave the tribunal its jurisdiction; and also the document which contained their adjudication... it has to set out the adjudication but it was never necessary to set out reasons nor evidence except for convictions
  - But if the tribunal does state its reasons and they are wrong in law; certiorari can apply

Is affidavit evidence admissible for an application for certiorari? When granted for jurisdictional error, bias or fraud it is necessary

When granted on the...

#7232 - Remedies I - Administrative Law

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