Judical Review Flashcards
What are the 3 principle grounds for judicial review and who were they set out by
- illegality
- unreasonableness
- procedural impropriety
Set out by CCSU
What is judicial review (introduction)
-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
Introduction
-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
What is illegality
-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
What are the 2 sub headings under abuses of discretionary power under illegality
-improper purpose
- irrelevant considerations
What is the sub heading under abdication of discretionary power under illegality
-fixed rule of policy
What is improper purposes under illegality (abuse of discretionary power)
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
What is relevant and irrelevant considerations (abuse of discretionary power)
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
What Is abdicting discretionary power ( fixed rule of policy)
-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
What is unreasonableness
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)
What is Procedural impropriety
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
What does Audi alteram parted mean
“Hear the other side”
What are the 8 factors of “hear the other side” under procedural impropriety
- Prior notice
- Disclosure of relevant materials
- Right to a hearing
- Right to legal representation
- Decision maker just hear the case
- Probative evidence
- Warning as to adverse credibility findings
- Reasons
What is prior notice
-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
What is disclosure to relevant material
(Minister of immigration) duty to disclose relevant information
- think like evidence before murder case
What is right to a hearing
No automatic right to a hearing (evans)
- depends on fairness
But if credibility, reputation or livelihood are stake (Rose)
What is Right to legal representation
No general right to legal rep but fairness may require this when livihood at stake (pett)
What is Decion maker must hear the case
One who decides must hear. (Jeff’s)
If group decision all must be present
What is probative evidence
A decision must be reasonably supported (Moore)
- must not spin a coin or consult an astrologer
What is warnings as to adverse findings
Cutie lies on decion maker to warn parties against adverse credibility findings
( re Erebus)
Reasons
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
Duty to act fairly -bais
-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
What is legitimate expectation
Where procedural right is established from a promise or established practice. There must be reason for the reliance
How would you conclude
Many heads of claim
State what ones would be successful in this case
