How to identify Jurisdictional Error (Common Law (a. Prerogative writs…
How to identify Jurisdictional Error
a. Prerogative writs (written orders)and equitable remedies, for equitable remedies no need for JE
B. Jurisdictional error needs to be shown
c. Exeception to B certriori (quashing decision) on the face of the record
For Prerogatice Writs (written orders)
ERROR ON THE
FACE OF THE RECORD
E parte Shaw Lord Denning
it has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings...it must contain at least he document which initiates the proceedings; the pleadings, if any and the adjudication but not the evidence NOR the reasons.
Administrative Law Act 1978 (vic)
10 reasons to be part of the record - any statment by a tribunal or inferior courrt whether oral or in writing ...of its reasons for a decision shall be taken to form part of the decision and accordingly be incorporated in the record.
Craig v SA Australia
original jurisdiction of High Court in all matters (iii) in which the Cth, or a perosn suing or being sued on behalf of Cth is a party (v) in which a writ of Mandamus (order to do something) or prohibition (order not to do something) is sought against an officer of the Cth. NOTE: constitutional writs not prerogative writs
75 (iii) might not require jrisdictional error 2. 75(iii) might cover more writs 3. So far courts have only said that 75(v) protaects against privative clasuses 4. 'officer of the cth' vs. 'cth as a party'
s39B Original jurisdiction of Federal Court of Australia - Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and IEA the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of Mandamus (order to do something) or prohibition or an injunction is sought against an officer or officers of the Cth. IA The original jurisdiction of the Federal Court in Australia also includes jurisdiction in any matter: (a) in whic the Cth is seeking an injunction or a declaration or (b) arising under he Cth or involving it's interpretation (c)arising under any laws made by parliament other than a matter in respect of which a criminal prosecution is instituted or any other criminals matter.
SUMMARY 1. Similar remedies to COMMON LAW JR 2. Two guarantees of consitututional JR 75(iii) and 75 (v) 3 Jurisdictional Error still important - onstitutional writs
AD (JR ACT) MAIN PROVISIONS YOU NEED TO FAMILIARISE YOURSELF WITH
Section 3 - definitaion section
section 5,6 and 7: lay out what are considered the legal errors (no need for jurisdictional error)
Schedule 1 - gives you a list of things for which the ADJR act doesnt apply
Section 16 gives you the remedies (equivalent to the writs and equitable remedies, but not lear if the rules are the same)
What kind of executive actions does the AD(JR) Act apply to:
Decisions (s5) or:
s5(1) a person aggreived by a decison to which this act applies can apply for a review on the following grounds:
Failure to make a decision (s7)
1). Where: (a) a person has a duty to make a decision to which this Act applies (b) there is no law that prescribes a period within which the person is required to make that decision (c) the person has failed to make that decision... a person who is aggrieved by the failure of the mentioned person to make the decision may apply ...on the group that there has been an unreasonable delay in making the decision
s7(2) - (a) person has a duty to make a decison to chich this act applies (b) law perscribes a period i which decision must be made (c) no decision before expiration of that period. Aggrevied person .... duty to make decison before expiration of that period.
Conduct fo he purposse of making a decision (s6) or
Appliction for review of conduct related to making of decisions (1) wher a person has engaged in conduct for the purpse of makeing a decison to which this act applies, a person who is aggrevied by the conduct may apply to the federal courtt for an order of review in respect to the conduct on any one or more of the following grounds:
Does not apply to Schedule 1