Administrative law › Module guides › Remedies

The idea

Remedies open five of the six held papers, so this is the module the exam rewards first. The catalogue is short: certiorari to quash, prohibition to restrain, mandamus to compel a duty, injunction, and the declaration. Under the ADJR Act the same work is done by orders under s 16. No administrative law remedy awards compensation.

The marks are in selection, not recitation. You fix the avenue, fix the client's posture, and then pick from the menu, justifying every choice by what it does for this client. Where a reason rests on delegated legislation you add a declaration that the instrument is invalid, the remedy students most often forget.

Some rules carry a small icon marking the structure the rule takes. The icon is a reading aid and nothing more. The facts of the cases and the words of the rules do the work.

Attack plan

1. Fix the avenue. It is stipulated in the question and sets the menu (writs and equitable relief under s 39B(1) or O 56, s 16 orders under the ADJR Act, both on a joint application).
2. Fix the client's posture. Refused, suspended or revoked, burdened by an invalid instrument, or waiting on a decision that never comes.
3. Select from the menu and justify every pick by what it does for this client. Never list.
4. Whenever delegated legislation grounds a reason, add a declaration that the instrument is invalid.
5. On a joint application run both tracks and say which order does the work on each. Hold relief discretion for one line at the end of the memo. Five of the six held papers open exactly here.

Cases at a glance

Case	In a line
Ainsworth v Criminal Justice Commission	A commission report blackened a pokies manufacturer's reputation without a hearing. Nothing to quash and no unperformed duty, so certiorari and mandamus failed and a declaration issued
Hot Holdings v Creasy	A mining warden's ballot was preliminary, but the statute fed it into the Minister's licence decision. Certiorari reaches a preliminary decision with a sufficient statutory connection to the final legal effect
Re Refugee Review Tribunal; Ex parte Aala	Certiorari is not named in s 75(v). It issues as ancillary to the constitutional writs of mandamus and prohibition

The rules

R34 · Do judicial review remedies award compensation? arrow The menu is certiorari (quash), prohibition (restrain), mandamus (compel the duty), injunction (restrain or compel conduct) and declaration (state the legal position); under the ADJR Act the work is done instead by orders under s 16(1); no remedy awards compensation. s 16(1).

R35 · What does certiorari do and when does it issue? arrow Certiorari quashes a decision and removes its legal effect from the date it was made, and it issues for jurisdictional error or for an error of law appearing on the face of the record.

R36 · What must exist for certiorari to issue? arrow Certiorari requires a decision with a discernible effect on legal rights, interests or liabilities, so a report with no legal effect leaves nothing to quash. Ainsworth.

R37 · Can a preliminary decision or report be quashed? compass A preliminary decision or report may still be quashed where it operates as a precondition or bar or step in altering rights, as with the ballot the statute fed into the licence decision. Hot Holdings; Ainsworth.

R38 · What does prohibition do and when does it issue? arrow Prohibition restrains a threatened or continuing exercise of power and issues only for jurisdictional error, so a refusal that is already complete leaves nothing to prohibit.

R39 · When does mandamus lie? checklist Mandamus commands the performance of a public duty that remains unperformed, and a duty is unperformed where the decision made was not made according to law. Ainsworth.

R40 · What can mandamus command? arrow Mandamus compels the decision maker to decide according to law and never commands the grant or the refusal itself, because the discretion remains with the decision maker.

R41 · What does an injunction do and when is it available? keyring An injunction restrains or compels conduct in its prohibitory or mandatory form, and it is available for jurisdictional or non jurisdictional error including an error that is merely threatened.

R42 · What does a declaration do and when is it available? compass A declaration authoritatively states the legal position between the parties and is available for any error, but it lies in the court's discretion and binds without coercive force. Ainsworth.

R43 · What are the limits on a declaration? arrow A declaration answers only a real and not a hypothetical question and cannot put the court in the shoes of the executive, because its scope is the scope of judicial power. Ainsworth.

R44 · How are remedies selected? arrow Remedies are selected and justified by what each does for the client on the decision as it stands, because futile remedies earn nothing even where they are not penalised.

R45 · Can certiorari be sought alone in a s 39B(1) application? arrow Certiorari is not named in s 75(v) and issues in a s 39B(1) application as ancillary to mandamus or prohibition, so it is sought with a constitutional writ rather than alone. Aala at [14].

R46 · What remedy is needed where a reason rests on invalid delegated legislation? arrow Where a reason for the decision rests on delegated legislation that is arguably invalid, the remedy set includes a declaration that the instrument is invalid, and the writs then attack the decision built on it.

R47 · What orders can the Court make on an ADJR order of review? keyring On an order of review the Court may quash or set aside the decision, remit it for further consideration with directions, declare the rights of the parties, or direct a party to do or refrain from doing anything justice requires. ADJR Act s 16(1)(a) to (d).

R48 · Does an ADJR application stay the decision? arrow An ADJR application does not stay the decision, but the Court may suspend the decision's operation or stay proceedings under it. ADJR Act s 15(1).

R49 · How is a joint application answered? checklist A joint application under s 39B(1) and the ADJR Act engages both remedy regimes, so the memo answers each limb and names which order does the work on each track.

R50 · Does a ground made out entitle the applicant to relief? arrow A ground made out does not of itself entitle the applicant to relief, because each remedy has its own legal requirements and relief remains in the court's discretion.

Common traps

The futile writ. On suspension facts the same instinct inverts and prohibition leads. The remedy follows the posture, never a memorised list.

The missing declaration. Most students who attacked the invalid clause still failed to seek the declaration of its invalidity. Whenever a reason rests on an instrument, the declaration goes in the remedy set. This is the single most priced remedies miss in the corpus.

The scattergun. Listing every remedy was not penalised and earned nothing. The H1 answer selects, justifies each selection in a sentence, and moves on. Three hundred words of remedies beats six remedies unexplained.

Certiorari standing alone. In a s 39B(1) application certiorari is ancillary (Aala). Seek it with mandamus or prohibition and describe it as ancillary. The graded scripts that did this were the ones at the top of the ladder.

Mandamus overreach. Mandamus compels a lawful redetermination and never the outcome the client wants. An answer that asks the court to order the licence granted has asked for merits review, and the framing sentence of the memo already disclaimed it.

The forgotten limb. On the joint paper some students forgot the ADJR and argued only the writs. A joint application is two remedy regimes. Answer both, and use the s 16(1)(d) direction where the constitutional writs run out.

Practise this module

The practice bank runs this module inside invented scenarios with a Pass answer, an H1 answer and examiner's comments for every drill. Read the rules above, then attempt the bank blind and mark yourself against the model.

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