Constitutional 5: Judicial Review

Question 1

What are the issues to consider to see if judicial review is available?

Answer 1

Amenability
- is it appropriate for JR

Procedural Exclusivity

Standing

Time Limits

Ouster Clauses

Question 2

Amenability: what bodies can you bring JR against?

Answer 2

Should relate to public body

Non Public Bodies containing public element
- is source of power in statute

Regulatory authority
- only if function has sufficient public character
- ask but for body would government have to do it

If claimant has contract with public body
- governed by contract law

Question 3

If claimant has contract with public body can they bring JR?

Answer 3

Will be governed by contract law

Question 4

What are the rules of procedural exclusivity in JR?

Answer 4

To bring a public law challenge in any other way than by JR would amount to an abuse of process of the court

Exception
- if both parties agree to use private law
- mixed claims public law issue can be reviewed in private law court

Question 5

What is the procedure for bringing JR claim?

Answer 5

Pre-Action Protocol
- good practice
- should write to defendant identifying issue
- defendant to respond in 14 days

Permission Stage
- apply to court for permission to continue claim
- may use hearing if complex but normally not

Full hearing Stage
- standing to be considered

Question 6

What are grounds for refusing permission for continuing JR claim?

Answer 6

• Lackof standing
• that even if successful the claimants outcome would not be substantially different.

Question 7

What are the time limits for bringing JR claim?

Answer 7

• Time limit of 3 month after the grounds to make the claim first arose, to make claim
• Claim can also be denied even if filed in 3 months if this is not held to be prompt

Exception for planning decision
- must be brought in 6 weeks

Question 8

What issues will courts not review for JR?

Answer 8

hypothetical situations

factual disputes

Question 9

What are the requirements for standing for JR?

Answer 9

Individual must have sufficient interest
- normally at permission stage but if unclear there should be full hearing

Groups/Associations (maybe)
- if the individuals would themselves have standing; or

• is responsible
• will resourced
• has expertise; and
• there is unlikely to be alternative claimant

Question 10

What might prevent JR being used even if other conditions are met?

Answer 10

• if there is alternative route to take (tribunal act.)
• JR is last resort

Question 11

When will an ouster clause prevent JR?

Answer 11

Unlikely as courts will interpret clause in way that does not interfere with thier jurisdiction

Has to be clear with explicit wording

Question 12

What are the grounds for judicial review (general)?

Answer 12

Illegality

Procedural Impropriety

legittimate expectation

Unreasonableness or irrationality

Question 13

What has to be shown for illegality in JR?

Answer 13

Ultra Vires
- acts outside its statutory power

Errors of Law
- decision maker makes mistake regarding issue of law

Specific legal duty
- does done comply with legal duties that must
- for example showing due regard for DEI when making decisions

Unlawful delegation of power
- unless provided by statute; or
- Carlton principle

Irrelevant considerations
- if fail to take relevant considerations into account; or
- take irrelevant ones into account

Question 14

What has to be shown for procedural impropriety?

Answer 14

mandatory / diretory requirements

right to be heard

rules against bias

duty to consult

duty to give reason

Question 15

What are mandatory and directory requirements and how are they relevant to procedural impropriety?

Answer 15

mandatory requirements
- failure to follow will invalidate the decision

directory requirements
- if not followed will not necessarily invalidate decision

Question 16

When does procedure require a right to be heard?

Answer 16

For judicial or administrative decisions depending on the extent of justice and fairness required

Forfeiture cases
- when a right is removed from a person they should be able to hear case against them and respond

Question 17

When might procedural impropriety be argued due to bias?

Answer 17

Direct Bias = automatic disqualification
- if decision maker has financial interest; or
- non financial interest so closely connected to issue raised (active involvement with an organisation that is part of case)

Indirect Bias = can challenge
- depends if a fair minded and informed observer would conclude there was a real possibility of bias
- view formed in advance

Question 18

When might common law duty to consult be grounds under procedural impropriety?

Answer 18

May arise:
- when there is a statutory duty to consult
- promise to consult
- established practice to consult
- when failure to consult would lead to clear unfairness (rare)

Question 19

When might duty to give reason apply to procedural impropriety?

Answer 19

Only if:
- subject matter or interest is important (eg involving personal liberty); or

• decision appears to be aberrant (departs from standard practice)

Question 20

How can legitimate expectation arise generally?

Answer 20

Procedural
- promise or past practice on how decisions are made

Substantive
- assurance or promise has led a person to believe that they will receive a particular, tangible benefit

Question 21

Examples of procedural Legitimate expectation?

Answer 21

A public body has promised or represented that a particular procedure will be followed before a decision is made
- contained in policy
- given expressly
- published criteria used for decision

Where there has been an established practice for the public body to use a particular procedure

Question 22

When will substantive legitimate expectation arise and what would the outcome be?

Answer 22

Express promise or past practice
- must be clear and unambiguous

Legal
- must be within power of public body or their agent

knowledge
- claimant needs knowledge of promise (unless asylum seeker)

Importance
- promise must be of particular importance

Question 23

When can unreasonableness or irrationality be used as grounds for judicial review?

Answer 23

If the decision is considered so outrageous or absurd that it is outside the power of the decision maker.

Test:
- must be so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applies their mid to the question court have arrived at it.

Question 24

What remedies are available of JR?

Answer 24

Quashing Order
- reders original decisifon void

Mandatory Order
- orders D to act in certain way (such as retake decision)

Prohibiting Order
- D not to act in certain manner

Injunction
- order preventing a party from acting
- requires third party to act

Declaration
- declares that decision or action complained of was unlawful

Question 25

How can remedies be used/not used?

Answer 25

At discretion of court to grant any remedy

Can combine multiple remedies

Question 26

When may the court not grant a remedy?

Answer 26

Maybe if:
- third parties have relied on the decision
- if quashing decision is not likely to make any practicable difference