APPLICATION FOR AN ORDER TO SHOW CAUSE

Transcription

1 IN THE HIGH COURT OF AUSTRALIA [CIW REGISTRY No. BETWEEN: [Plaintiffs full name] Plaintiff and [Defendant's full name] Defendant APPLICATION FOR AN ORDER TO SHOW CAUSE 20 To: The Defendant [defendant's address for sen~ice] TAKE NOTICE that this application has been made by the plaintiff for the relief that is set out below on the grounds that are set out below. IF YOU INTEND TO DEFEND the proceeding you must file a notice of appearance in the office of the Registry named above. 30 IF YOU ARE WILLING TO SUBMIT to any order that the Court may make, save as to costs, you may file a submitting appearance in the office of the Registry named above. THE TIME FOR FILING AN APPEARANCE is as follows: (a) where you are served with the application within Australia - 14 days from the date of service; (b) in any other case - 42 days from the date of service. THE RELIEF CLAIMED is 1. [state precisely the relief claimed] [Firm name/plaintiffs name] [Address for service1 Telephone: [number] Fax: rnr~mherl

2 THE GROUNDS ON WHICH THE RELIEF IS CLAIMED are: I. [state precisely the grounds relied on]! This applica ion shall be heard at the time and place stated [if a summons is to be 10 sewed with he application] in the summons served with this application / [if no summons is to be sewed with the application] in a summons to be served at a later time. 1 This applica ion was filed by the plaintiff. Dated ( signed) [Name of plaintiff /plaintiffs solicitor] The plaintiffs address is [plaintiffs address]. The plaintiffs address for service is [plaintiffs address for senlice].

3 HIGH COURT OF AUSTRALIA (FEES REGULATIONS) 2004 APPLICATION FOR REDUCTION OR PARTIAL WAIVER OF FILING FEES & HEARING FEES File No:... Case Name:... Application is made by the APPLICANT:... (name) EITHER for a reduction of the filing fee (reduced fee of $100) and waiver of hearing fees in this matter on the following ground: (Tick appropriate box) The applicant has been granted legal aid for the High Court proceedings (attach a letter of confirmation): Sub-regulation 9(l)(a) 2. The applicant is: (a) The holder of one of the following cards issued by Centrelink (attach a photocopy of both sides of the card) (i) Ahealthcarecard; (ii) (iii) A pensioner concession card; A seniors health card; (b) (iv) or A Commonwealth seniors health care card; The holder of any other card issued by Centrelink or the Department of Veterans' Affairs that certifies entitlements to Commonwealth health concessions (attach a photocopy of both sides of card): Sub-regulation 9(l)(b)(i). (Note "holder" of a concession card does not include a dependant of the holder of the card.)

4 The applicant is an inmate of a prison or is otherwise lawfully held in a public institution (attach a letter of confirmation): Sub-regulation 9(l)(b)(ii) 4. The applicant is a child under the age of 18 (attach photocopy of birth certificate, extract or other proof of age): Sub-regulation 9(l)(b)(iii) 5. The applicant is in receipt of youth allowance, or an austudy payment, within the meaning of the Social Security Act 1991 (attach evidence of receipt of youth allowance or austudy payment): Sub-regulation 9(l)(b)(iv) 6. The applicant is in receipt of benefits under the Commonwealth student assistance scheme known as the ABSTUDY Scheme (attach evidence of receipt of ABSTUDY payment): Sub-regulation 9(l)(b)(v) for a partial waiver of the filing and hearing fees in this matter on the following ground: 7. The applicant seeks a waiver of two thirds of the prescribed fee by the Registrar as payment of the fee would cause the applicant financial hardship (attach completed statement of affairs): Sub-regulation 10 Signature of the applicant or legal representative:... Date:... Application granted: Amount waived: $... Amount to be paid: $... Application refused: Reasons for refusal attached: Signed:... (Registrar) Date:...

5 HIGH COURT OF AUSTRALIA Information which may be of assistance in the preparation of applications seeking prerogative or constitutional relief The High Court's jurisdiction to grant prerogative or constitutional relief is set out in 75(v) of the Constitution and is limited to relief being sought against "an officer of the Commonwealth". Rule 25 of the High Court Rules 2004 deals with applications for prerogative relief including mandamus, prohibition and certiorari. The application is commenced by way of an application for an order to show cause (Form 12) with one or more affidavits in support. Rule sets out the requirements for the application for an order to show cause, including the requirement that the application: (i) contain a statement of the relief which the applicant seeks and of the ground or grounds on which the relief is sought; (ii) not be served more than 90 days after the date on which it is issued. Rule provides that the party seeking an order to show cause is a "plaintiff' and other parties are "defendants". Rule sets out the steps the plaintiff must comply with. In particular the plaintiff is also required to file and serve with the application for an order to show cause a summons (Form 21) and an outline of submissions. The outline of submissions must: (a) state why the matter should not be remitted to another court or, if the plaintiff submits that it should be remitted, identifying the Court to which it should be remitted; (b) state what further steps, if any, should be taken in the Court, whether by way of reference of a question of law to a Full Court or otherwise; (c) specify the times by which, and manner in which, further steps in the Court are to be taken; and (d) set out the precise terms of the orders which the plaintiff submits should be made on the hearing of the summons. Rule sets out the time limit in the case of certiorari and rule specifies the time limit for mandamus. A copy of Rule 25 and a copy of Form 12 and Form 21 are attached IMPORTANT The above information is intended only as a procedural guide. It is recommended that intending applicants seek legal advice before commencing proceedings and, in any event, intending applicants should familiarise themselves with the requirements of the High Court Rules (in particular Rule 25, which deals with applications for prerogative or constitutional relief) and the relevant legislation relating to their application. Last updated 4/01/2012

6 Week 12 Judicial Review Remedies Texts: Creyke & McMillan Ch 16 Aronson, Dyer & Groves Ch Introduction to the Topic Judicial review remedies are of three types: The prerogative writs or orders - principally certiorari, prohibition, mandamus and habeas corpus The equitable remedies of declaration and injunction Statutory remedies, such as those available under the ADJR Act In addition, the "constitutional writs" are available in the original jurisdiction of the High Court under s 75(v) of the Constitution: see Re Refirgee Review Tribunal; Ex parte Aala. Section 75(v) gives the High Court original jurisdiction to grant prohibition, mandamus or an injunction against Commonwealth officers. There is a limited nature to these remedies in the sense that the courts must stop short of re-exercising the administrator's discretion. The remedies are also limited in the sense that compensation is not available on judicial review. To obtain compensation or damages for unlawful administrative action, the complaint must be framed within tort or contract. Further, all the remedies are discretionary -they may be refused even though unlawfulness has been established. Types of Judicial Remedies 1. THE CONSTITUTIONAL WRITS * Re Refigee Review Tribunal; Ex parte Aala (2000) 204 CLR CERTIORARI R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [ KB 338 R v Criminal Injuries Compensation Board; Ex parte Lain [I QB 864 Craig v State of South Australia (1 995) 1 84 CLR 163 Ainsworth v Criminal Justice Commission ( 1 992) 175 CLR 564 * Hot Holdings Pty Ltd v Creasy (1996) 185 CLR PROHIBITION Ainsworth v Criminal Justice Commission (1 992) 175 CLR MANDAMUS

7 Randall v Northcote Corporation (1 9 10) 1 1 CLR 100 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1 93 3) 50 CLR 228 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1 949) 78 CLR 3 89 Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1 994) 182 CLR HABEAS CORPUS Minister for Immigration and Multicultural Affairs v Vadarlis (200 1) 1 10 FCR INJUNCTION Cooney v Ku-ring-gai Corporation (1 963) CLR 5 82 * Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1 998) 194 CLR DECLARATION Dyson v Attorney-General [ KB Forster v Jododex Australia Pty Ltd (1 972) 127 CLR 42 1 * Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Minister for Immigration and Ethnic Affairs v Guo (1 997) 19 1 CLR ADJR ACT ADJR Act ss 15,16 Minister for Immigration and Ethnic Affairs v Conyngham (1 986) 1 1 FCR 528 Park Oh Ho v Minister for Immigration and Ethnic Affairs (1 989) 167 CLR DISCRETION OF COURT TO REFUSE RELIEF Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53 NSWLR 559 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 (14 July 2006) ADJR Act Probably the most important aspect of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (apart from creating a statutory right to reasons for decision) is the fact that it creates a single, all-embracing and extremely flexible remedy, the "order of review", for a breach in respect of any of the decisions or conduct covered by the Act. See ADJR Act section 16. General Law

8 1. Certiorari and Prohibition Certiorari and prohibition probably remain the two most important remedies in judicial review, although the simplicity and flexibility of the declaration certainly makes that remedy a very attractive one. Of course, for most federal decisions the choice will be ADJR review where there is a single flexible remedy: the "order of review". However, at State level (at least in States other than Victoria and New South Wales ADJR-like statutes are available) and for review in the High Court's original judicial review jurisdiction under section 75 (v) of the Constitution, the common law prerogative writs (or orders in the nature thereof) remain critically important. 2. The nature of certiorari and prohibition Certiorari is in essence a two part remedy. The first part is an order removing the official record of the impugned decision-maker into the superior court issuing the certiorari order. The second part is an order quashing the impugned decision, and the record thereof. That is, certiorari is used to wipe the slate clean. Prohibition, on the other hand has a largely negative aspect. It prohibits the impugned decision-maker and those relying on the decision from doing something illegal which they are about to do, or from continuing on an illegal course of action already commenced. Accordingly, the main difference between certiorari and prohibition is in the timing of the application to the court. Certiorari lies for any jurisdictional error, and also for non-jurisdictional errors of law appearing on the face of the record. Prohibition, on the other hand, lies only for actual or threatened excess of power, but is not available in respect of nonjurisdictional error of law on the face of the record. The reason why the writs are so confined was explained by Hayne J in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 (at para 159). 3. The decision-maker must exercise public power It is clear that public law remedies, including certiorari and prohibition, will only lie against bodies or persons exercising public power (as opposed to private power). Thus, Ministers or departments exercising powers of functions in relation to contractual matters were generally not be subject to correction by prerogative writ. Similarly, the distinction between public and private power has been critical in some dismissal or disciplinary decisions against public sector staff. A public or statutory body might have mixed functions, some private and some public. 4. Discretionary criteria for refusing certiorari and prohibition The court usually has a discretion to refuse certiorari and prohibition, even though a substantive review ground has been established. However there has long been a debate as to whether the discretion always exists. There are many judgments saying that there is no discretion where the vitiating error is "manifest" (or apparent on the face of the record), and the applicant for the remedy is a person directly aggrieved. At least in the High Court's original jurisdiction, that question appears to have been resolved by Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52, where

9 the court approved the following statement by Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185: "g therefore, a clear case of want or excess ofjurisdiction has been made out, and the prosecutor is a party aggrieved the writ will issue almost as of right [my emphasis - KAP], although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course." 5. Mandamus -- orders to perform duties The prerogative writ of mandamus is a judicial command addressed to and compelling the respondent to perform a public duty. The remedy is ancient and retains significant technicalities, so that other remedies especially declaration are usually more attractive. However, mandamus is still frequently granted in the High Court's original jurisdiction, pursuant to section 75 (v) of the Constitution (it is a remedy expressly granted to the High Court). Mandamus may be expected to become even more popular having regard to the High Court's decision in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 (16 November 2000), which significantly liberalised the criteria for grant of what are now to be referred to as "constitutional writs" (rather than "prerogative writs" where one is seeking relief under section 75 (v)). 6. Bodies or people to whom mandamus lies Although one generally refers to the mandamus respondent as an "official, even a private person can be a respondent to the extent that they bear a public duty -- see e.g. Re O'Rourke (1 986) 7 NSWR 64. Unlike certiorari and prohibition, mandamus has never generally been regarded as limited to cases where the respondent's powers can be classified as "judicial" or "quasi-judicial". Thus, it seems that mandamus is available in respect of a magistrate's decision on whether to commit a defendant to stand trial, even though that decision might be immune from certiorari or prohibition. 7. The nature of the duties enforced by mandamus Mandamus lies to compel performance of a public duty which is justiciable and unperformed. A power (discretion) is not a duty, and a statute which says "may" usually grants only a power. Mandamus is nevertheless frequently issued in context where the statute has said "may". Whilst "may" indicates a discretion, the repository of the discretionary power is usually under a duty at least to consider its exercise, where an appropriate request is made and may sometimes even be under a duty to exercise it in a particular way if there is no permissible reason indicating why should not do so. In the latter situation the discretion has effectively run out: the repository of a discretionary power cannot exercise or declined to exercise it on arbitrary or otherwise impermissible grounds. 8. The effect of mandamus Generally speaking, mandamus consists of an order to do a positive act, rather than to desist from doing something (for which prohibition or injunction would be

10 appropriate). Generally also, the relevant duty should not be of a continuing nature. Mandamus has no quashing effect -- if you need to quash a decision you should seek certiorari or exercise a statutory appeal right (if available). 9. ADJR's equivalent of mandamus Section 7 of the ADJR act provides: "7. (1) Where -- (a) a person has a duty to make a decision to which this Act applies; (b) there is no law that prescribes a period within which the person is required to make that decision; and (c) the person has failed to make that decision, a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Court for an order of review in respect of the failure to make a decision on the ground that there has been unreasonable delay in making the decision." Section 3 (1) defines "failure" to include "a refusal to make a decision". Query therefore whether the ADJR Act imports the common law mandamus requirement for a refusal to make a decision (as opposed to a mere "failure"). 10. Declarations A declaratory order or judgment is simply a court's declaration or statement resolving a dispute as to the meaning or application of the law applicable to a situation in which the applicant has a sufficient interest. In a strictly technical sense, the order or judgment has almost no mandatory or restraining effect at all. The orthodox view is that whilst declarations are often accompanied by consequential relief ordering or restraining certain conduct, a mere declaration cannot be executed or enforced. Theoretically, a declaration neither commands nor restrains action. It is the only remedy applicable to virtually all challenges to the legality of government decisions and conduct. Kirby J. said that the declaration's development "is one of the most important and beneficial adventures in the administration of justice during this century" -- see Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at paragraph The discretion to refuse declaratory relief Lockhart J. summarised the factors governing the discretion to rehse declaratory relief in Aussie Airlines Pty Ltd v Australian Airlines Limited (1996) 139 ALR 663 at : "For a party to have sufjicient standing to seek and obtain the grant of declaratory relief it must satisfi a number of tests which have been formulated

11 by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows: (a) The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved and the declaratory relief must be directed to the determination of legal controversies. The answer to the question must produce some real consequences for the The applicant for declaratoiy relief will not have suffient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen ',- or if the Court's declaration will produce no foreseeable consequences for the parties. (c) The party seeking declaratory relief must have a real interest to raise it. (4 Generally there must be a proper contradictor. These other rules should in general be satisfied before the Court's discretion is exercised in favour of granting declaratory reliej1' 12. Injunctions The courts will generally only grant an injunction in public law where a statute can be characterised as evincing an intention to grant private statutory rights. Courts are reluctant to grant an injunction to a private person to enforce purely public rights. Moreover, some recent High Court dicta suggest that at least some Justices see a considerably broader and more flexible role for the injunction in public law. See, for example, Gaudron J. in Abebe v Commonwealth (1999) 197 CLR 5 10 at paras : "As appears from Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Bemjit Fund Pty Ltd equitable remedies have a continuing role in public and administrative law. And in those areas, 'equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration.' Given the potential for administrative decisions to impact on existing rights and interests, and also, on important and valuable statutory rights to which the individual might otherwise be entitled, it may well be that an injunction will lie to prevent an oficer of the Commonwealth from giving effect to an administrative decision based on error, even if that error is not jurisdictional error...." Statements by various Justices in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 also suggest an emerging broader and more flexible view as to the availability of injunction in public law.

12 Assuming that it is available, the remedy of injunction offers numerous advantages over other remedies. First, being an equitable remedy it can, like declaration, be fashioned very flexibly to fit the justice of the situation: it is not hidebound by any of the technical restrictions of the prerogative writs. Secondly, it can be granted on an interim or interlocutory basis to restrain conduct pending the determination of the substantive issues in the proceedings. Selected Readings Beatson, J 'The discretionary nature of public law remedies1, [I9911 New Zealand Recent Law Review Caldwell, J L 'Discretionary remedies in administrative law1, (1986) 6 Otago Law Review Howell, R H 'An historical account of the rise and fall of mandamus1, (1985) 15 Victoria University of Wellington Law Review 127 Jenks, E 'The Prerogative Writs in English Law' (1923) 32 Yale Law Journal 523 McMillan, J 'Developments under the ADJR Act-the Grounds of Review', Federal Law Review, vol. 20 no. 1, 1991 Selected Caselaw Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Beneft Fund Pty Ltd (1998) 194 CLR 247 Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1 994) 182 CLR 5 1 Cooney v Ku-ring-gai Corporation (1 963) 1 14 CLR 5 82 Corporation of the City of Enfeld v Development Assessment Commission (2000) 199 CLR 135 Craig v State of South Australia (1 995) 1 84 CLR 1 63 Dyson v Attorney- General [ ] 1 KB Forster v Jododex Australia Pty Ltd (1 972) 127 CLR 42 1 Humane Society I,ternational Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 (14 July 2006) Hot Holdings Pty Ltd v Creasy (1 996) 1 85 CLR 149

13 Minister for Immigration & Ethnic Affairs v Conyngham (The Platters Case) (1986) 68 ALR 441 Minister for Immigration and Ethnic Afairs v Guo ( 1 997) CLR Minister for Immigration and Multicultural Aflairs v Vadarlis (200 1) 1 10 FCR 49 1 NS W Breeding & Racing Stables Pg Ltd v Administrative Decisions Tribunal (200 1) 53 NSWLR 559 Park Oh Ho v Minister for Immigration and Ethnic Afairs (1989) 167 CLR 637 Randall v Northcote Corporation (1910) 11 CLR 100 * Re Refugee Review Tribunal; Exparte Aala (2000) 204 CLR 82 R v Cornrnomvealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 R v Criminal Injuries Compensation Board; Ex parte Lain [ QB 864 R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [I KB 33 8 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1 933) 50 CLR 228