(5) CONSEQUENCES - Remedies

Question 1

If a constitutional error has been found courts can grant

Answer 1

Certiorari
Prohibition
Mandamus

Question 2

Certiorari

Answer 2

quashes decision

Question 3

Prohibition

Answer 3

against Minister to prevent action which exceeds jurisdiction

Question 4

Mandamus

Answer 4

to compel Tribunal to consider/determine merits review application

Question 5

Use mandamus where

Answer 5

applicant wants administrative process to proceed

Question 6

What is required for mandamus

Answer 6

actual or constructive failure to perform public duty

Question 7

Certiorari invalidates any

Answer 7

action that has been taken in reliance of the decision.

Question 8

To use certiorari, the decision has to have

Answer 8

discernable legal effect whereby the decision under challenge must affect a person’s rights, interests or liabilities

Question 9

If no jurisdictional error is found what are ur options

Answer 9

(1) Certiorari on the face of the record (where no JE)

2) Equitable Relief (can be removed by privative clauses – not entrenched

Question 10

If a breach of a provision of ADJR has been established

Answer 10

all remedies specified in s 16 ADJR Act are available at the court’s discretion:

Question 11

Do Court’s have discretion to refuse relief?

Answer 11

Yes – all remedies are discretionary but there’s a presumption in favour of granting remedy (Enfield)

Question 12

Under ADJR can Court refuse to grant application for review?

Answer 12

yep under s 10(2)

Question 13

Is severance possible if only part of the decision is invalid?

Answer 13

yes - but CL presumption against severance