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Remedies I Notes

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Remedies

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There are three types - prerogative writs (certiorari, prohibition, mandamus, habeas corpus), equitable remedies (declaration, injunction) and statutory remedies available under the ADJR Act

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The origins lie in the 13th century system of the KB's ability to call officials to account for their actions - they included: o

Certiorari - command an inferior court to certify its record of proceedings; allowing superior courts to quash them for an error of law

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Prohibition - restrained inferior courts from exercising their power

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Mandamus - ordered executive officers to perform their public duty

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Quo warranto - required DMs show by what authority a person held a public office

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And others (scire facias, ne exeat regno, procedando)

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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" o

Australia has however overcome these procedural complexities with the introduction of statutory judicial review procedures in the ADJR Acto

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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 issuedOn 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)

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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 applyingBodruddaza - provisions in the Migration Act imposing a rigid time limit on obtaining a constitutional writ held invalidPossible 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

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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

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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:

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I. 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

II. 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:

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In the operation of s75(v), terms like 'prohibition' and 'jurisdiction' aren't just institutions of the general law - they are constitutional expression

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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

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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

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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.

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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

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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 o

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

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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)o

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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: o

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.o

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:

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Certiorari is only available to quash a decision for error of law if the error appears on the face of the record o

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 convictionsBut 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

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When granted on the ground of error of law on the face of the record affidavit evidence is not as a rule admissible since the error must appear on the record itself o

BUT affidavits are admissible to show that the record was incomplete (e.g., conviction omitted evidence of one of the witnesses or didn't set out facts that the justices refused to hear a competent witness)

All these difficulties on points of law can be overcome if the parties agree that the question should be argued and determined

R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864 Lord Parker CJ: The exact limits of certiorari haven't been specifically defined and it has been left to expand.

The only constant limits throughout were that it (the decision-making body) was performing a public

duty. Private bodies and tribunals are excluded since their obligation arises from contract

? The TB writers note that it is doubtful whether it would apply to non-government bodies exercising public sector power

Craig v South Australia (1995) 184 CLR162 Facts: C was charged with offences. Applying Dietrich the TJ ordered a stay till legal representation was made available. The state applied to the SC for certiorari to quash the DCs order. On appeal the held if there was an error of law it shouldn't be quashed by certiorari since it wasn't jurisdictional or on the face of the record of the District Court

Brennan, Deane, Toohey, Gaudron & McHugh JJ: Their honours commented that certiorari was available to quash decisions on established grounds: jurisdictional error (for which the tribunal can consider all materials placed before it), failure to observe a relevant requirement, procedure fairness, fraud, and error on the face of the record (where the court is restricted to the 'record'.

The face of the record

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The expansive approach to certiorari should be rejected - in the absence of some statutory provision to the contrary, the records of an inferior court for the purpose of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision o

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They referred to the rationale; if this weren't so certiorari would lie to correct any question of law which would increase the financial hazards to those involved in minor litigation

But this does not preclude incorporation of the terms of any of these by reference but merely introductory or incidental references to the reasons do not imply that the whole or part of the reasons somehow become part of both the formal order and the 'record' of the particular court
- only those parts of the reasons/transcript that are referred to which brings about its incorporation as an integral part of that order and the 'record' o

Hence words like 'for the reasons given' or 'accordingly' wont themselves incorporate whole/part of the reasons in the record

In this case the remark 'for the reasons I have already published...' didn't have the effect of incorporating the reasons for the purpose of certiorari.

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 Facts: The Mining Act gave discretion for the Minister to grant/refuse applications for exploration licenses or mining leases. Before doing the minister was to receive reports from the warden containing recommendations; the warden was to, in the case of multiple applicants, determine 'priority' on a first-come-first-serve basis but if people submitted 'at the same time' a ballot was to

decide it. In this case 8 applications were lodged within the first 51 seconds and the warden decided to use a ballot. Before the ballot was held one of the applicants commenced proceedings seeking certiorari to quash the warden's decision. The HCA held that such a decision could be quashed by certiorari. Brennan CJ, Gaudron & Gummow JJ: Resolving the authorities (Lord Atkin in London Electricity, Brennan J in Ainsworth) their honours concluded:

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For certiorari to issue it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing. This applies in two situations: I.

Where decisions under challenge are the ultimate decision in DMing and the question is whether that decision 'affects rights' in the legal sense

II. Where the ultimate decision undoubtedly affects legal rights but the question is whether a decision made at a preliminary/recommendatory stage of the DM process sufficiently determines or is connected with that decision

'This case fell into the second category - hence the question was whether the decision constitutes some condition precedent to the exercise of power which effects legal rights. Here the:
? The receipt of the report from the warden was a statutory precondition to the decision to grant
? The decision of the warden to conduct the ballot forms a part of that report which the minister was bound to consider (but also wasn't bound to grant the person who had 'priority'; only where multiple applications had the same merit would the 'priority' play a part
? The Minister's discretion wasn't unfettered - he had to consider matters in the Act.
? It would be odd if the provisions enabled the Minister to just consider the warden's report as opposed to having regard to them - this is in conformity with Peko. o

Hence the warden's decision had a discernable legal effect upon the minister's exercise of discretion.

The fact that the Minister isn't bound by the recommendation doesn't affect the conclusion' the provisions only indicate the weight of these considerations isn't decisive; they don't show that the consideration is not one the Minister is bound to consider

Dawson & Toohey JJ (dissent) considered that here it was merely a challenge of a ballot, not the recommendation or the report. The recommendation is a precondition of the exercise of power only because it has to take place; its content isn't a condition precedent. The warden's decision to conduct the ballot only paved the way for a situation in which an applicant would be entitled to have their application considered in priority to others. This decision wasn't truly a step capable of affecting rights since the Minister can make a decision completely against it

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