Grounds for Judicial Review: Procedural Propriety Flashcards
What is Procedural Impropriety as grounds for review?
Failure to observe the procedural rules laid down in the legislative instrument from which the jurisdiction is conferred
What 2 categories can procedural impropriety be further broken down into?
Breach of an express provison
Breach of an implied provision
Describe breach of an express provision
A person or body does not follow the procedural rules expressly set out in the power-conferring instrument.
A body may be acting in ultra vires not only when it ‘does the wrong thing’ but also when it ‘does the right thing in the wrong way
Describe the distinction between mandatory and directory procedural requirements
Before, courts drew a distinction between mandatory (non-observance was fatal) and directory (non-observance may be excused) procedural requirements
What has since replaced the mandatory/directory distinction?
We ask the question of whether illegality was the intention of the legislature in the event of non-compliance
Describe breach of an implied provision or common law standard
When a procedural requirement is not expressly mentioned in the power-conferring instrument, the courts may apply common law standards to see if the decision is appropriate or if there was an implied provision
Describe Natural Justice and Fairness grounds for review
Supervisory jurisdiction of the court may be applicable to uphold the standard of fairness and justice. This is context-dependent
Describe legitimate expectations grounds for review
When petitioner had a legitimate expectation that the decision maker would act or not act in a particular way
Procedural (that a particular process would occur) Substantive (that a particular outcome would occur)
Describe the right to be heard as grounds for review
A decision is better made when the decision-maker has given those affected an opportunity to make their case before the decision is made.
Not always an oral hearing
Describe rules against bias as grounds for review
actual bias: judge is a party to litigation or has an interest in the outcome = automatic disqualification
potential bias: conduct or behaviour of judge is such as to give rise to a suspicion that he is not impartial = possible disqualification
interests can be financial or otherwise
What test is used in potential bias cases?
Whether the fair-minded and informed observer would conclude after analysing the facts that there was a real possibility of bias
Describe duty to give reasons as grounds for review
There is no general duty to give reasons and sometimes without reasons a decision is self explanatory.
Nonetheless, a decision should not leave the court in substantive doubt as to what the reasons were
