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Law Notes Administrative Law Notes

Remedies I Notes

Updated Remedies I Notes

Administrative Law Notes

Administrative Law

Approximately 368 pages

A 197 page summarised bible of administrative law notes including detailed case and materials summaries, super summaries and flow charts intended for exam use. Structure of the summarised bible is as follows:

Class 1 - Accountability in an administrative state
Class 2 - Legality, Rules, Discretion & Policy
Class 3 - Statutory Interpretation and the Ombudsman
Class 4 - Subordinate Legislation
Class 5 - "Reasons for Decision"'; Freedom of Information
Class 6-8: Merits Review
Class 9: Stand...

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Remedies

  • 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 13th 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:

  1. 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

  2. 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

  • 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...

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