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Week 10 Judicial Review Remedies (Three types of judicial remedies…

- - - - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
        
        declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions
        
        person seeking relief must have ‘a real interest’…
        
        relief will not be granted if
        
        the question ‘is purely hypothetical’,
        
        if relief is ‘claimed in relation to circumstances that (have) not occurred and might never happen…or
        
        if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.
    - - An injunction is an order or decree issued by a court, in the exercise of its equitable jurisdiction, that requires a party either to do a specific act (a mandatory injunction) or to refrain from or cease doing a specific act (a prohibitory injunction)
      - An injunction “may be ‘perpetual’, that is granted at the conclusion of the court proceedings; or ‘interlocutory’ or ‘interim’, that is, it is granted before or during the proceedings to prevent any change in the status quo until a final determination is made by the court”
        
        ‘interlocutory’ or ‘interim’,
        
        Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, to secure an interlocutory injunction the plaintiff must show
        
        that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and
        
        that the balance of convenience favours the granting of an injunction.
        
        that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief;
  - - - (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 = certiorari;
        
        (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 = declaration;
        
        Green v Daniels (1977) HCA 18, Stephen J: “(T)he plaintiff is entitled to declarations of the general nature already indicated. She is not, however, entitled to a declaration that she was, in respect of any period before 22nd February, 1977, qualified to receive unemployment benefits; any such qualification remains for determination by the Director-General or his delegate... It follows from this that there can be no present order or declaration as to entitlement to, or payment of any unemployment benefits to, the plaintiff in respect of the period before 22nd February, 1977.
        
        (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 = prohibition/injunction.
    - - the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth
        
        writ of mandamus or prohibition or an injunction
    - - “In all matters…in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth the High Court shall have original jurisdiction.”
        
        Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, the High Court stated that the concept of “constitutional writ” is preferable to “prerogative writ” in describing the High Court’s jurisdiction to issue the writs of Mandamus, prohibition or injunction
  - - - writ issued by a court to restrain an inferior court or a decision-maker from
        
        exceeding it powers or acting outside of or beyond its jurisdiction: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
        
        The writ is available on the ground of want or excess of jurisdiction, breach of natural justice or fraud, but is a discretionary remedy
        
        Gleeson CJ cited two instances when prohibition may be refused
        
        the administrative structure incorporates provision for an internal “appeal”
        
        whilst there may be a denial of procedural fairness at the first stage, if an appeal was taken and there was a full and fair hearing on that appeal
        
        judgment of Mason J in R v Marks; Ex parte Australian Building Construction Employees Builders Labourers’ Federation (1981) 147 CLR 471 is authority that, in such a case, prohibition to the first decision-maker may be refused on the footing that any denial of natural justice at that level has become irrelevant.
        
        requirements for prohibition
        
        four
        
        an exercise of legal authority, i.e. public power;
        
        decision in question must affect the rights of a person;
        
        decision-maker must have a duty to act judicially, i.e. be a judicial or administrative decision-maker; and
        
        decision-maker must have made a jurisdictional error
        
        prohibiting further unlawful action: Re Wakim; Ex parte McNally (1999) 198 CLR 511
        
        exercising its power: Annetts v McCann (170) CLR 596
    - - Mandamus is a writ issued by a court to compel an officer or administrative body to “command the fulfillment of some duty of a public nature which remains unperformed”: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
      - “to compel an officer to do an act which the applicant is entitled to have done, and without the doing of which he cannot enforce or enjoy some right which he possesses”: R v Arndel (1906) 3 CLR 557.
      - For mandamus to issue, the case must involve the non-fulfillment or performance of a public duty by an officer or administrative body: Randall v Northcote Corporation (1910) 11 CLR 100
    - - Certiorari is a writ issued by a superior court quashing or nullifying an order or decision of an inferior court or tribunal on the ground of jurisdictional error, breach of natural justice or procedural fairness, fraud or “error of law on the face of the record”: Craig v South Australia (1995) 184 CLR 163.
      - Its function is “to quash the legal effect of the legal consequences of the decision or order under review”: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
      - There is a distinction in terms of what evidence or record can be reviewed when certiorari is sought
        
        jurisdictional error, breach of procedural fairness or fraud, the court “entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it”: Craig v South Australia (1995) 184 CLR 163
        
        error of law on the face of the record, the superior court is restricted to the ‘record’ of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record”: Craig v South Australia (1995) 184 CLR 163
    - - three requirements must be met
        
        there must be a detention attributable to the alleged detainor;
        
        the detention must be unlawful; and
        
        the detainee must have a legal right to be released.
      - The relevant liberty is freedom of movement results in a person's freedom of movement being curtailed. The view that “a ‘total restraint of movement’ is necessary to constitute detention amenable to habeas corpus has been rejected: Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 100 FCR 491
    - - decision to deport a person where there is a legal error in the decision =
        
        Certiorari = quash the decision to deport
        
        Prohibition = restrain the actual deportation of the person
- - - - If it mistakenly asserts or denies the existence of jurisdiction or
      - if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.
      - Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.