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Remedies in judicial review

Traditionally, anyone seeking judicial review had to use the common law procedure of seeking the issue of a “prerogative writ”. A prerogative writ is formally an order from the sovereign (i.e. the King or Queen) to an inferior tribunal or court. The High Court now calls them “constitutional writs” (“writs”). There are many types of writ, but three main types of writ that are important in judicial review: mandamus, certiorari and prohibition.

  1. Mandamus is an order issued by the court against a tribunal, public body or official requiring it to perform a duty that it has failed to perform. For example, an official might be required to consider an application for a licence that it had refused to consider.
  2. Prohibition is an order to a tribunal, public body or official requiring it to cease proceedings. An order for prohibition should be sought where a body has failed to exercise its jurisdiction properly or failed to provide natural justice and its proceedings are continuing.
  3. Certiorari is an order setting aside a decision (technically, the record of the decision-maker is removed to the court and the court then quashes the decision and expunges it from the record). An order for certiorari would be sought where a decision has been made unlawfully and the decision should be set aside. Generally an order for certiorari is sought in combination with an order for mandamus, i.e. an order for certiorari setting aside the decision and an order for mandamus requiring the decision-maker to make the decision again.

In addition to these three writs, other court powers include the power to grant an injunction (preventing or requiring certain action) and a declaration (declaring the legal position in relation to a particular issue).

In 1977 the federal parliament enacted the ADJR Act. The ADJR Act simplified the remedies and procedures applicable to judicial review (see “Review under the ADJR Act (Cth)”, below). Most importantly, it simplified the language of judicial review. If you wish to challenge a federal action under a statute, the ADJR Act is an attractive alternative to seeking one or more of the writs because of the clear and simple procedures that the Act provides. It also provides the applicant with an opportunity to obtain a statement of reasons from the decision-maker before commencing proceedings, a right not previously provided.

The common law procedure (see Glossary) for seeking a writ remains relevant because the ADJR Act does not apply to all administrative actions (e.g. decisions made “outside” a statute, and many decisions under the Migration Act 1958 (Cth), are not covered by the ADJR Act). Accordingly, if you wish to challenge a federal matter you need to check carefully whether it is covered by the ADJR Act. If a decision is not covered by the ADJR Act, you may need to apply under the Judiciary Act 1903 (Cth) (“Judiciary Act”) (usually s 39B). Sometimes you will need to do both.

Soon after the enactment of the ADJR Act, the Victorian Parliament enacted the Administrative Law Act 1978 (Vic) (“ALA”), which was intended to simplify the procedures applicable to review of Victorian decisions (see “Review under the ALA”, below). In Victoria, a further reform abolished the writs of certiorari, prohibition and mandamus altogether and replaced them with an application for “an order in the nature of” certiorari, mandamus or prohibition under order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“SC (GCP) Rules”). (Consequently, the language in the Victorian statutory judicial review scheme is essentially the same as under the common law.)

Although the order 56 procedure still retains the old language of certiorari, mandamus or prohibition, it is now actually in many ways more straightforward than the “simplified” procedure laid down by the ALA. Under the ALA you have to prove that the decision-maker had to accord natural justice before the court will have jurisdiction to review their decision (see “Scope of the ALA”, below). Also, the time limits for making an application cannot be extended under the ALA (while under order 56 the time limits can be extended).

Today, the usual options, one or more of which may be available to you if you are considering judicial review (apart from any other statutory right of review), are as follows.

In a federal matter:

  • Seek review under the ADJR Act if you are aggrieved by a decision or conduct that falls within the scope of the Act (to determine whether the ADJR Act applies, see below under “Review under the ADJR Act (Cth)”).
  • Seek the issue of a writ in the Federal Court under the Judiciary Act (usually s 39B). For the court to have jurisdiction, your case must qualify under s 39B. For example, you must be seeking a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth (you can also seek other remedies, such as a writ of certiorari or a declaration). Or there may be a Constitutional or other legislative issue. (Check the Judiciary Act for exact criteria.) If the matter you wish to challenge is not covered by the ADJR Act, or you are unsure whether or not it is covered by the ADJR Act you should rely on the Judiciary Act as well.
  • Seek the issue of a writ in the High Court under section 75 of the Constitution. Again, for the court to have jurisdiction, you must be seeking a writ of mandamus or prohibition or injunction against an officer of the Commonwealth. As any action brought in the High Court’s original jurisdiction would be likely to be remitted to the Federal Court under section 44(2A) of the Judiciary Act, this may not be recommended. But sometimes the only review available is in the High Court (see s 38 of the Judiciary Act regarding exclusive jurisdiction of the High Court).

In a Victorian Matter:

  • Seek review under the ALA if you are aggrieved by a decision that falls within the scope of the Act (to determine whether the ALA applies, see below under “Review under the ALA”).
  • Seek an order “in the nature of” one of the writs under order 56 of the SC (GCP) Rules.

Review under the Administrative Decision (Judicial Review) Act 1977 (Cth)

Applications for review under the ADJR Act can be commenced in the Federal Court or the Federal Circuit Court.

For less complex disputes, the Federal Circuit Court may be preferable. It has the same jurisdiction as the Federal Court under the ADJR Act. It is meant to provide a simpler and more accessible “service” than the Federal Court and mayprovide a less expensive and quicker resolution of the dispute.

If you are unsure whether or not the ADJR Act applies, you may be able to seek review in the Federal Court and combine an application under the ADJR Act with an application for one or more of the writs under section 39B of the Judiciary Act, just to be on the safe side (see “Remedies in judicial review”, above).

Application of the ADJR Act

To apply for review under the ADJR Act you must be a “person aggrieved” (defined in s 3(4)(a)(i), (ii)) by:

  • a decision (s 5);
  • a report or recommendation that was made under an enactment before a final decision (s 3(3));
  • conduct for the purpose of making a decision (s 6); and/or
  • failure to make a decision (s 7).

To be a person aggrieved, you must have an interest in the subject matter of the decision that is greater than a member of the public would have. It is not enough that the person feels aggrieved. The test is similar to the common law test of “standing to sue” (see “Standing to sue”, below).

The meaning of “decision” is quite important, as the other categories that are covered by the ADJR Act, such as conduct or a report, all relate back to a decision that is proposed to be made.

The ADJR Act does not define the word “decision”. It does, however, define the expression “the making of a decision”, but this is not an exhaustive list (s 3(2)). In order to fall within the scope of the ADJR Act, a decision must:

  • be administrative in character;
  • be made, proposed to be made, or required to be made under an enactment (see s 3(1));
  • not be made by the Governor-General (see s 3(1)(c)); and
  • not fall within one of the classes of decisions listed in schedule 1 to the ADJR Act, which are exempt from the Act (see s 3(1)(d)). Always check the list of exemptions in schedule 1 for recent updates.

A decision must be an ultimate, final, or operative determination and not a mere preliminary expression of opinion or statement (see Australian Broadcasting Tribunal v Bond [1990] HCA 33).

Conduct concerns procedural matters such as the refusal of an adjournment, calling witnesses, questioning witnesses and issuing subpoenas or the manner in which a hearing is being conducted, in the lead up to a decision that is itself capable of review (see s 3(5)).

Failure to make a decision falls into the area of remedy traditionally known as mandamus. An order can be obtained where a decision-maker is under a duty to make a decision and fails to do so. Section 7 deals with two variations of this situation:

  • where no time limit is imposed by the law on the decision-maker, a person can seek judicial review if nothing is done after a reasonable time, on the ground of “unreasonable delay” (s 7(1)); and
  • if a period of time for making the decision is specified, the ground is “failure to make the decision within that period” (s 7(2)).
Grounds of review

The grounds for review of a decision or conduct are listed in sections 5 and 6 of the ADJR Act. (See “Grounds of review – summary”, above, for an extract of section 5.) They are similar (but not identical) to the traditional common law grounds that are outlined below. One key difference is that “error of law” need not be on the face of the record under an ADJR Act review.

Orders the court can make

The court has very flexible powers as to the orders it can make. It can make an order of review quashing or setting aside the decision under review, referring the matter back to the decision-maker with directions, declaring the rights of the parties or directing any of the parties to do or refrain from doing whatever the court considers necessary to do justice between the parties (s 16(1) ADJR Act).

Nonetheless, it cannot simply step into the shoes of the decision-maker and remake their decision as the court sees fit, unless there is only one decision that can lawfully be made.

Review under the Administrative Law Act 1978 (Vic)

If you wish to challenge a Victorian matter you can consider whether or not to bring proceedings under the ALA, or whether you may prefer to use the SC (GCP) Rules order 56 procedure to seek an order in the nature of one of the writs.

Scope of the ALA

Section 3 of the ALA states:

Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court for an order calling on the tribunal or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed.

The three terms crucial to understanding the scope of the ALA are defined in section 2:

  1. Decision means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision.
  2. Person affected in relation to a decision, means a person, whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision that has been made or is to be made or ought to have been made by the tribunal.
  3. Tribunal means a person or body of persons (not being a court of law or a tribunal constituted or presided over by a judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice.

These terms are discussed in more detail below.

1. Decision

The above definition of “decision” makes it clear that judicial review under the ALA is not limited to decisions affecting “rights”. It is sufficient if a “privilege” or “licence” is affected. See “Decision” under “Application of the ADJR Act”, above, for a discussion on the requirements to satisfy the definition of a “decision” as per Australian Broadcasting Tribunal v Bond [1990] HCA 33.

Inaction can be treated as a “decision” for the purpose of review.

2. Person affected

This definition provides the test to obtain standing to sue under the ALA. While some of the terms in the definition, such as “to a substantial degree” appear rather vague, very few problems have arisen in its practical application.

3. Tribunal

This definition contains the most significant limitation: the requirement that the decision-maker must accord natural justice. First, tribunals presided over by a Supreme Court judge (such as the Parole Board) cannot be challenged by the procedure (although an individual may seek review by other means). Second, the procedure can only be used to seek review of persons or bodies who act judicially “to the extent of observing one or more of the rules of natural justice”.

Not all administrative bodies must observe natural justice, or any of its rules, in their operation (although at common law they may still be amenable to review where they exceed their powers). Section 4(3) of the ALA also places strict limitations on the circumstances in which the procedure can be successfully invoked against a decision of VCAT.

Application for review

A person must apply to the Supreme Court for review not later than 30 days after notice of the decision or the giving of reasons, whichever is later. The application must be supported by evidence on affidavit and show a prima facie case for relief (s 4(1)). Even if a prima facie case is shown, the court may refuse the application “if satisfied that no matter of substantial importance is involved or that in all the circumstances such refusal will impose no substantial injustice upon the applicant” (s 4(2)).

This discretion may operate as, virtually, a second limb of the test for standing (see “Standing to sue”, below). Not only must a person be “affected” but they must also be able to show “substantial injustice”.

Orders the court can make

The court has a discretion to impose terms as to costs or security, or a stay of the implementation of the decision, pending the hearing (s 6). In making its final order, the court may grant any of those remedies that could have been given in proceedings for a writ, quo warranto, declaration or injunction (s 7) (see “Remedies in judicial review”, above).

Remedies in judicial review :: Last updated: Sun Jun 30th 2013