Judical Review

Question 1

What are the 3 principle grounds for judicial review and who were they set out by

Answer 1

• illegality
• unreasonableness
• procedural impropriety

Set out by CCSU

Question 2

What is judicial review (introduction)

Answer 2

-review of the manner in which the decision of administration is made (evans)
-inherently discretionary
-review of action of decision makers

-there are three grounds of judicial review as set out in CCSU - illegality, unreasonableness, procedural impropriety

They question we must answer is if something has gone wrong the requires court intervention

Question 3

Introduction

Answer 3

-This is not an appeal from a decion but a review of the manner in which a decision has been made (evans)
-judicial review is an institution of constitutional importance, embracing the rule of law
- the 3 Pricilla grounds of review are, illegality, unreasonableness and procedural improperly as set out in CCSU

Question 4

What is illegality

Answer 4

-ensures decion makers exercise their discretionary powers within the parameters established by the empowering statute

-lord diploc in CCSU “a public authority must understand correctly the law that regulates its decision making and give effect to it”

2 factors
- abuses of discretionary power
- abdication of discretionary power

Question 5

What are the 2 sub headings under abuses of discretionary power under illegality

Answer 5

-improper purpose
- irrelevant considerations

Question 6

What is the sub heading under abdication of discretionary power under illegality

Answer 6

-fixed rule of policy

Question 7

What is improper purposes under illegality (abuse of discretionary power)

Answer 7

Unfettered discretion- doesn’t exist -padfield

Wednsbury -power granted for one purpose must not be exercised for another purpose
BUT
Ireland - if lawful purpose is not frustrated then power may be exercised for another purpose - pj doesn’t agree - becuase no limit on how far people can go with this

Question 8

What is relevant and irrelevant considerations (abuse of discretionary power)

Answer 8

Mandatory =must be followed
Permissible = may be taken into account

Fiodlamd -can’t consider irrelevant or permissive even for public interest

Cook j - the more important the consideration the more likely parliament intended it -eg shall, must

Question 9

What Is abdicting discretionary power ( fixed rule of policy)

Answer 9

-no such thing as unfettered discretion
A decision maker must not adopt a fixed rule or policy (corrie) unless it furthers the statutory purpose)

-can’t surrender discretion

Question 10

What is unreasonableness

Answer 10

Wednesday- when a decision is so outrageous that it defies logic and accepted standards on a so level no sensible person could have come to on the decision itself - high threshold

-replaced with varying threshold in Woolworths.

• sliding - (wheeler)

Court can’t intervene in a clear and extreme case -(wellington)

Question 11

What is Procedural impropriety

Answer 11

Decision makers must have regard to natural justice s27 BORA

duty to act fairly
-decision makers are bound by procedural requirements
-it is the procedure not the decision that is to examined (Fraser)
-John decion making process must be informed accurate and fair

Audi alter am parted principles “hear the other side”
-comprises 8 different factors

Question 12

What does Audi alteram parted mean

Answer 12

“Hear the other side”

Question 13

What are the 8 factors of “hear the other side” under procedural impropriety

Answer 13

1. Prior notice
2. Disclosure of relevant materials
3. Right to a hearing
4. Right to legal representation
5. Decision maker just hear the case
6. Probative evidence
7. Warning as to adverse credibility findings
8. Reasons

Question 14

What is prior notice

Answer 14

-prior notice is required
-when hearing is held good notice must be given
-must in the circumstances be adequate
(DvM) -gave no prior notice in relation to misbehaviour

-also proper notice as to when a hearing is etc

Question 15

What is disclosure to relevant material

Answer 15

(Minister of immigration) duty to disclose relevant information

• think like evidence before murder case

Question 16

What is right to a hearing

Answer 16

No automatic right to a hearing (evans)
- depends on fairness
But if credibility, reputation or livelihood are stake (Rose)

Question 17

What is Right to legal representation

Answer 17

No general right to legal rep but fairness may require this when livihood at stake (pett)

Question 18

What is Decion maker must hear the case

Answer 18

One who decides must hear. (Jeff’s)
If group decision all must be present

Question 19

What is probative evidence

Answer 19

A decision must be reasonably supported (Moore)
- must not spin a coin or consult an astrologer

Question 20

What is warnings as to adverse findings

Answer 20

Cutie lies on decion maker to warn parties against adverse credibility findings
( re Erebus)

Question 21

Reasons

Answer 21

Law does not impose general duty to give realms for their decisions , however
-(green) ‘ fundamental of good administration

-failure to give is procedurally unfair
- upholds open justice
- protects against wrong decions

Question 22

Duty to act fairly -bais

Answer 22

-presumptive - (dimes) ‘no man is to be the judge of his own cause’ - were presumed there is bais
-apparent - when they have an actual intrest in the case

Question 23

What is legitimate expectation

Answer 23

Where procedural right is established from a promise or established practice. There must be reason for the reliance

Question 24

How would you conclude

Answer 24

Many heads of claim
State what ones would be successful in this case