Jurisdictional facts – what are they and why do we care?

Jurisdictional fact review is taught quickly at law school and soon forgotten altogether as students focus on more common grounds for judicial review. If you find yourself working in administrative law as a graduate, you may need to brush up on your knowledge. Read this blog post then go forth and impress your team with your understanding of a niche but important area of law.

Why do we care about jurisdictional facts?

As a rule of thumb, a factual error is not a ground for review of a decision. An exception to this rule exists for jurisdictional facts. Where an error has been made about a jurisdictional fact, this is a ground for review of a decision at common law. Jurisdictional fact review is unique in that the reviewing court can receive fresh evidence. For other grounds of review, the reviewing court is stuck with findings of facts made by the decision maker, as questions of fact are seen as belonging to the merits, and the task of a court is to inquire into the legality of the decision (this is known as the merits/legality distinction). In jurisdictional fact review, the evidence before and reasoning of the administrator in fact finding can be reviewed by the court and the existence of facts can be determined afresh. Jurisdictional fact review is an important ground of review to remember because of this opportunity it gives the review court to go beyond the merits/legality distinction.

How to identify a jurisdictional fact

Broadly speaking, a jurisdictional fact is a factual circumstance that must exist prior to a decision being made. A jurisdictional fact might be a certain event or requirement that must occur before a decision is made.  In Timbarra (see key cases below for summary) Spigelman CJ stated there are two factors to consider when determining whether a fact is a jurisdictional fact:

1.       Objectivity: Did parliament intend that the fact must actually exist or be objectively determined as opposed to the decision maker just been satisfied in something? If the act refers in objective terms to the belief, satisfaction would indicate subjectivity rather than objectivity. Note that when Spigelman CJ refers to parliament’s intention he is referring to the intention as evident from the words parliament chose to use in the text of the legislation. While the Explanatory Memorandum and other aids can be taken into account, normal principles of statutory interpretation apply and the starting point is always with the text of the statute.

2.       Essentiality: Did parliament intend that the absence or presence of the fact will invalidate the action. One important factor which is often determinative is whether the fact is preliminary to the exercise of power or arise in the course of exercising the power, if the fact is preliminary to the exercise of the power is not likely to be essential.

A jurisdictional fact will form the basis for judicial review of the decision if it does not exist or has been made in error.

Hypothetical examples:

1.       If legislation states a tribunal can only exercise its powers when sitting on a Wednesday, the fact that it is a Wednesday may be a jurisdictional fact;

2.       If legislation states a person must be convicted of a crime before a decision to revoke a visa can be exercised, the fact a person has been convicted of a crime may be a jurisdictional fact.

Do not confuse a jurisdictional fact with:

1.       A jurisdictional requirement

A jurisdictional requirement is a precondition that must be met before a valid decision can be made. Where a jurisdictional requirement is not met it may cause a jurisdictional error which is a ground for review. If you want to revise jurisdictional requirements the High Court’s discussion of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163 (Craig) is a must read.

2.       A jurisdictional opinion

Do not confuse a jurisdictional fact with a jurisdictional opinion (see Spigelman CJ’s objectivity/subjectivity distinction above). As Aronson, Dyer and Groves put it in Judicial Review of Administrative Action (4^th ed) a jurisdictional fact “is purely factual”. Note though there are differing opinions on how “purely factual” an opinion must be (see Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 per Gummow J). If you do not understand the difference between a jurisdictional fact and a jurisdictional opinion, you may want to go right back to basics to review the difference between a fact and an opinion and then go from there. Where you have a jurisdictional opinion, not a jurisdictional fact, the normal principles of reviewing a subjective power will apply and the court cannot accept evidence and decide whether the relevant subjective criterion was met.

Key cases

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (Enfield)

Facts:

The case of Enfield concerned the expansion of waste treatment plant. The developers had applied to the Development Assessment Commission (DAC) for approval of their expansion plan, which the Local Council strongly opposed. Where a development proposal could be classified as “special industry”, the development application required the consent of both local Minister and Council. The Local Council argued that the extension of the waste treatment plant was “special industry” as it would create smells and allow smells to escape to nearby land. The DAC considered the evidence about smells, formed the view the development was not a “special industry” and approved the application.

Legal issue:

Whether the “special industry” requirement was a jurisdictional fact or an opinion.

High Court:

Found that the characterisation of a proposed development as a “special industry” is a jurisdictional fact, as the legislative regime did not frame the requirement in terms of an opinion and the question of whether a development was a “special industry” played a pivotal role in the development approval scheme, as it was a trigger for public participation and other requirements. The “special industry” requirement was framed objectively as something to be objectively determined.

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 5 (Timbarra)

Facts: Ross Mining submitted an application to extend one of its goldmines. The legislation required a Species Impact Assessment (SIA) to be submitted with the application where the development was “likely to significantly affect threatened species”. Ross Mining did not submit a SIA, as it argued the development was not likely to significantly affect threatened species. Timbarra Protection Coalition, a lobby group, argued the mining development was likely to significantly affect a number of threatened species including frogs, bats and owls, therefore no “application” had been made and the council could not approve the application as a jurisdictional fact did not exist.

Legal issue: Whether the requirement to submit an SIA where the development was “likely to significantly affect endangered species” was a jurisdictional fact and whether fresh evidence as to the fact could be considered by the reviewing court.

First instance – NSW Land and Environment Court, Justice Tolbert:

Held there was no jurisdictional fact and no fresh evidence could be heard.

NSW Court of Appeal:

Found there was a jurisdictional fact and fresh evidence could be heard by the reviewing court. The legislation was expressed such that the SIA had a pivotal role in the statutory scheme as it ensured detailed information was available to decision makers. The submission of an SIA was necessary before consent was granted or not. Weighing against these factors was that reasonable minds could differ about whether a development would “significantly affect” endangered species. However, the Court of Appeal found the requirement was sufficiently objective and was therefore a jurisdictional fact. The matter was remitted back to the Land and Environment Court to hear fresh evidence about the significant affect of the development on endangered species.

Good luck identifying jurisdictional facts. Don’t be disheartened if you do not understand jurisdictional fact review or if you get confused between different grounds of review. I certainly did not understand the concept five years ago when I first encountered administrative law as a law student. Keep at it.

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 – Reservist saved by implied freedom of political communication

An Army Reservist of Roman Catholic faith who was terminated due to his highly critical comments made on social media concerning gay members of the ADF, women serving on the front line, and Islam has been saved by the Federal Court who found the ADF’s termination decision was contrary to the implied freedom of political communication in the Constitution. The case sheds light on the extent to which the ADF (or employers by analogy) can control a person’s political expression on social media out of hours. Note that this is not an unfair dismissal case, as members of the Australian Defence Force (ADF) are not employees. Members of the ADF are commissioned, with their commission being governed by the Crown prerogative and regulated by the Defence Act 1903 (Defence Act) and the Defence (Personnel) Regulations 2002 (Personnel Regulations).

Background and facts

Mr Bernard Gaynor served in Afghanistan (2006) and Iraq (2006-7, 2008-9 and 2009) and was awarded the United States of America Meritorious Service Medal in October 2009. In July 2011 he transferred to the Australian Army Reserve. At the time the incidents that led to his termination occurred, Mr Gaynor was a Major in the Army Reserve.

In January 2013, Mr Gaynor launched a webpage, Twitter page and Facebook page to promote his candidature as a Senate Candidate for Katter’s Australian Party for the Federal elections in 2013. On 23^rd January Mr Gaynor tweeted “I wouldn’t let a gay person teach my children and I am not afraid to say it”. Mr Gaynor’s webpage identified him as having served in the Iraq War. On the 24^th January, Mr Gaynor made a press release available along the same lines, that parents should be able to choose if their children are taught by a gay teacher.

On 6 February 2013 Major Gaynor was interviewed and counselled by Lieutenant Colonel Buxton who directed Major Gaynor, using the relevant DI(G), not to make any further intemperate or inflammatory remarks on social media, whether or not on duty or in uniform while he remained a member of the ADF.

Mr Gaynor ignored this direction, and made no attempt to prevent his audience from knowing he was a current ADF Reservist. On 22^nd March 2013 the Deputy Chief of Army sent Mr Gaynor a letter referring to his publications and asking him to stop. Mr Gaynor also ignored the direction contained in this letter.

In March and April 2013 Mr Gaynor published a number of controversial statements on social media including:

1.       A series of press releases, reflecting the material on his webpage, critical of the ADF’s participation in the Mardi Gras, stating that the ADF was accommodating to gay officers and transgender officers but discriminatory against Christian members who make public comment.

2.       Press releases critical of the ADF’s women on the front line policy.

3.       An article on his webpage headed “domestic betrayal a waste of soldiers’ sacrifices” which was openly critical of defence policy in Afghanistan and linked Islam to violence.

4.       A Facebook post which was critical of the ADF’s policies in relation to gay officers, sex-change operations, women serving on the front line, and Islam. The post contained a link to a press release by Mr Gaynor. Both the Facebook post and press release identified Mr Gaynor as a Reservist.

5.       A Facebook post where Mr Gaynor wrote “at what point does the ADF become complicit in child abuse? Should children be exposed to nudity and sexually explicit behaviour at the Mardi Gras?”

6.       A Facebook post critical of ADF personnel participation in Mardi Gras that directly mentioned the Deputy Chief of the Army. The identification of the officer was intended to mock and ridicule the officer. Mr Gaynor also mentioned the Deputy Chief of the Army in a tweet along the same lines.

In May 2013, Mr Gaynor became more aggressive in his strategy and turned specific attention to the transgender officer on the staff of the Chief of Army. His comments were personal and offensive such as “he thinks that because he has had a nip here, a tuck there and popped a bunch of pills that he is now a woman” and “the Army is now the employer of choice for those who want to take their cross- dressing career a little further”.

On 30 May 2013 My Gaynor was served with a Termination Notice issued by Chief of Army who was satisfied the criteria in reg.85(1)(d) and (1A) was established (Termination Notice). My Gaynor responded with a statement of reasons on 27 June 2013.

The decision to terminate Mr Gaynor’s commission was made on 10 December 2013 by the Chief of the Defence Force (Termination Decision). A variety of reasons were given in the termination decision including:

·         being openly critical on social media of ADF and government policy, support offered to gay and transgender members, and the decision to permit women to serve in combat roles;

·         clearly identifying as an active Army Reserve member on many occasions when making comments contrary to ADF policies;

·         behaviour generally acting contrary to policies and cultural change initiatives;

·         conduct repeatedly inconsistent with the DI(G) PERS 50-1;

·         failure to modify online behaviour; and

·         persistence of the conduct.

Mr Gaynor made a Redress of Grievance complaint, and progressed it through all internal avenues before the Chief of Defence Force finally rejected the Redress of Grievance on 30 June 2014.

Mr Gaynor challenged the Termination decision under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) as well as under constitutional grounds (s.116 freedom of religion, and the implied freedom of political communication). He was successful before Justice Buchanan on the implied freedom of political communication argument.

Defence Instructions (General) (DI(G))

The Secretary and Chief of the Defence Force have joint administrative responsibilities in the administration of the Defence Force (s.9A Defence Act). Instructions and policies issued with the authority of the Secretary and the Chief of the Defence Force pursuant to s.9A have statutory effect and are known as Defence Instructions (General) (DI(G)). DI(G)’s relevant to this case include:

·         DI(G) PERS 50-1 issued 18 October 2001 “Equity and Diversity in the Australian Defence Force”;

·         DI(G) ADMIN 08-1 issued 5 October 2007 “Public comment and dissemination of official information by Defence personnel”; and

·         DI(G) ADMIN 08-2 issued 16 January 2013 “Use of social media by Defence personnel”.

Mr Gaynor was required to follow these Defence Instructions.

Mr Gaynor was also required to abide by the Chief of Army Directive CA Directive 15/12 “Army Implementation Plan for Removal of Gender Restrictions” which attempts to improve the Army’s gender diversity and implement an ADF wide plan.

Personnel Regulations

Regulation 85 of the Personnel Regulations lists the reasons for which the service of an officer may be terminated. The list includes at 1(d):

“the Chief of the officer’s Service is satisfied that the retention of the officer is not in the interest of:

(i)                  The Defence Force; or

(ii)                The Chief’s service”

The reasons for which the Chief of the officer’s Service may be satisfied under 1(d) are not limited but include reasons relating to the officer’s behaviour.

Regulation 85(2) permits the Governor-General (or their delegate under reg.85(6)) to issue a termination notice stating the reasons, particulars and facts of termination, inviting the officer to give a statement of reasons and giving a period of at least 28 days for the officer to provide their statement of reasons.

Regulation 85(4) states that the Governor General (or their delegate under reg.85(6)) must issue a termination decision where a statement of reasons has been provided by the officer within the period, and having considered the statement, the Governor General is of the opinion the reason for termination has been established and has not been affected by a change of circumstance since the termination notice was given to the officer. 

In Mr Gaynor’s case, the Chief of the Defence Force and Chief of Army had been delegated the power to issue a termination notice and make a termination decision.

The ADJR Act claim

The ADJR Act claim was brought under s.5 of the ADJR Act. Mr Gaynor attempted to rely on every ground available in s.5(1), which made it difficult for Justice Buchanan to distil the essence of Mr Gaynor’s argument.

However, Justice Buchanan did conduct an analysis of possible grounds, reiterating that reg.85(1)(d) is a satisfaction power. The judiciary cannot rule on whether the satisfaction of a decision maker is appropriate, as this would amount to merits review, not judicial review. Similarly, the judiciary cannot analyse the appropriateness of ADF policies. The DI(G) applied to Mr Gaynor whether or not he was in uniform, as his service obligation was to obey the instructions and orders he was given and respect the disciplined nature of the ADF. The DI(G)’s themselves were not unlawful. There was no evidence showing bias, judgment or predetermination by the Chief of the Defence Force and no substance in any of the challenges to the Termination Decision under the ADJR Act.

The constitutional law claims

Section 116

Section 116 of the Commonwealth Constitution states:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

Mr Gayor argued that his posts on social media were protected by s.116 of the Constitution, as his comments amounted to the exercise of his Roman Catholic religion. Justice Buchanan immediately dismissed this argument, as the Termination Decision did not require Mr Gaynor to refrain from the exercise of his religion or satisfy a religious test of any kind. There is limited case law on the point, Justice Buchanan cited Mason ACJ and Brennan J’s test from Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120:

“The area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion”.

Justice Buchanan applied this test to Mr Gaynor’s situation and found s.116 could not be breached, as none of the instructions or orders given to Mr Gaynor or the Termination Decision infringe the test.

Implied freedom of political communication

Justice Buchanan begins his analysis by identifying the two limb test in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange):

Limb 1: Does the law effectively burden the freedom?

Limb 2: Is the object of the law compatible with the constitutional system of representative and responsible government and is the law reasonably appropriate and adapted to achieving that legitimate end?

Justice Buchanan also describes the distillation of the second limb of Lange in McCloy v State of New South Wales [2015] HCA 34 where the majority required proportionality testing in the second limb, requiring an analysis of whether the law is suitable, necessary and adequate in its balance. For a more detailed analysis of the two limbed test, see my blog post on McCloy v State of New South Wales [2015] HCA 34.

Importantly, Justice Buchanan reiterated that the freedom is not a personal right, and in Mr Gaynor’s case, the implied freedom is a suggested limitation on the discretion available under reg.85 of the Personnel Regulations. The first limb required an examination of whether the statements and communications by the applicant were political in nature. Justice Buchanan found that Mr Gaynor’s statements were clearly political in nature, and the fact the statements were offensive did not take them outside the scope of political discourse, even when directed at an individual. The Termination Decision was essentially disciplinary action which was an adverse consequence aimed at preventing further communications.

In considering the second limb, the reasons given in the Termination Notice were analysed. As identified in the facts above, the Termination Notice contained a mix of reasons for termination. The reasons included Mr Gaynor identifying himself as an ADF member while making his comments, but were not confined to this, and included the contention that Mr Gaynor’s public comments and general behaviour and his membership of the ADF as such were incompatible. Justice Buchanan concluded that the main reason behind the decision to terminate Mr Gaynor’s commission was the fact that Mr Gaynor had expressed his views publicly while he was still a member of the ADF.

Mr Gaynor had made the comments in a personal capacity, unconnected to the ADF except by the ongoing formal circumstance of his ADF membership. Justice Buchanan found the second limb of the Lange test was not satisfied. The decision to terminate Mr Gaynor’s commission exceeded the statutory authority under reg.84(4) of the Personnel Regulations because it was not reasonably proportionate and adapted to a legitimate end served by reg.84.

In applying the “suitable, necessary and adequate in its balance” criteria from McCloy, Justice Buchanan considered the question of whether “a regulation which directly prohibited the applicant’s conduct, would be valid if it was based on the same matters as the findings of CDF in the Termination Decision”. Justice Buchanan found such a regulation would not be “adequate in its balance”:

1.       Suitable – there is a need for discipline, obedience to orders and adherence to standards by ADF members, and a restriction on public comment is “suitable”.

2.       Necessary – there is not another obvious and compelling means of achieving the objective in the face of conduct such as Mr Gaynor’s who was defiant and intractable.

3.       Adequate in its balance –Mr Gaynor’s conduct involved the expression of political opinion, effectively as a private citizen. The burden on Mr Gaynor was significant, given the consequences of termination. The right to the freedom cannot be lost merely because of the main reason for termination, being Mr Gaynor remained a member of the ADF. Members of the full time regular services may rarely be free to publicy express opinions against the ADF, but the situation is not the same for Reservists who are often not on duty, and are private citizens when not in duty or uniform. When not in duty or uniform, Reservists should not have their freedom of political communication burdened.

While Justice Buchanan applied the elements of the McCloy distillation of the test, he made it clear his decision would fall the same way if he had applied the second limb of Lange in its traditional sense.

Key lessons

This case is a win for freedom of political communication advocates. It clearly states that the ADF cannot terminate a Reservist for expressing their political views where the political views are expressed when not on duty or in uniform, even where the Reservist makes it clear they are a current ADF member. The ADF case fell down on the “adequate in its balance” component of the second limb of the Lange test. If a decision lesser than termination had been made, this may have been “adequate in its balance”.

Analogies can be drawn from this case to the employment context. While each case will turn on an employee’s type of employment and the applicable policies, an employee’s freedom of political communication will be protected while the employee is acting in a private capacity. The protection may extend to instances where the employee states their connection to their employer, but this would depend on whether the second limb of Lange is satisfied, and in particular, whether the action taken against an employee is “adequate in its balance”. There is no higher authority case law on the application of the implied freedom of political communication to an employment law unfair dismissal context.

Note there is a strong chance this case will be appealed to the Full Court of the Federal Court and eventually the High Court. While it remains to be seen whether leave for appeal will be granted, given the case turned on the application of the “adequate in its balance” component of the test as enunciated in McCloy, and this is a new component of the second limb of Lange, there is a high chance leave will be granted.

What is the difference between judicial review and an appeal?

Understanding the difference between judicial review and an appeal is particularly important for junior lawyers working in litigation, public law, and the court system (such as associates, tipstaves and researchers). Although the basics of judicial review are taught at law school, it can be easy to quickly forget the basic distinction between judicial review and an appeal.

Appeal

An appeal challenges the outcome of a particular decision made by a tribunal or court. Generally, a person who is a party to the matter or aggrieved by the decision can lodge an appeal. Understanding the court hierarchy and statute detailing the right to appeal is important in understanding where to lodge your appeal. For example, if the original decision was made by the Victorian Civil and Administrative Tribunal (VCAT), an appeal can be made to the Supreme Court of Victoria (except if the decision was made by a President or Vice President of VCAT where the application for appeal must be made to the Court of Appeal).

Appeals can be by right or discretionary. Where the appeal is discretionary, an application must address why the appeal should be allowed and the grounds for appeal should. Leave to appeal will generally be granted at the Court of Appeal level where the applicant has “a real prospect for success”.

An example of when leave to appeal is required is for appeals to the High Court acting in its appellate jurisdiction under s.73 of the Commonwealth Constitution. The potential appellant must make an application for leave or special leave to appeal by filing Form 23 (r.41.03 High Court Rules 2004). Where leave is granted to appeal, the appellant can then initiate the appeal proceedings by filing the Form 24 notice of appeal (r.42.01, r.42.02 High Court Rules 2004).

After an appeal has been allowed, the appellate court will then make a decision as to whether the grounds of appeal have been made out. The appeal court will consider the submissions and decide on one of the following outcomes:

1.       Affirm the lower court decision;

2.       Modify the lower court decision – where the appellate court agrees in part with the lower court decision; or

3.       Reverse the lower court decision and find for the appellant. Where the appellate court finds that the lower court’s decision cannot be sustained, the decision of the lower court can be set aside. Reversing the lower court decision may also include setting aside orders made by the lower court and making new orders.

Pursuing judicial review of a decision is very different from appealing a decision. While an appeal focuses on whether the decision itself is correct or incorrect, judicial review focuses on whether the decision maker conformed with statutory or common law powers conferred on the decision maker.

Judicial review

Judicial review is an application for the court to determine whether an official action conforms with the power given. The judicial review process scrutinises the decision making process and analyses whether or not the decision was made within power. Decisions that may be subject to judicial review include decisions made by the executive arm of government, decisions made by tribunals, and decisions made by lower courts.

Examples of when an application for judicial review might be made is where there is some evidence the entity/decision maker granted with the public power has:

·         breached the limits placed on the grant of that power;

·         done something more than was authorised;

·         done something authorised in an unauthorised way; or

·         not done something when there was a duty to act.

The bar for finding an error has occurred is high – it is not enough that the court would have been minded to act differently – the regulator’s misjudgement or error must be so substantial as to take the impugned act or omission beyond that realm where reasonable minds would agree to differ.

The power to conduct judicial review comes from a number of sources:

1.       State and Territory Supreme Courts – the judicial review jurisdiction was part of the common law powers of the Supreme Courts at their foundation, and included the power to issue prerogative writs such as certiorari, prohibition and mandamus. Several jurisdictions have extended review powers to tribunals, such as NSW which has the NSW Civil and Administrative Tribunal and Victoria which has VCAT.  

2.       Federal Court (ADJR Act review)– has been granted a statutory judicial review jurisdiction by the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Federal Court can also undertake Constitutional judicial review, as s.39B(1) of the Judiciary Act 1903 gives the Federal Court similar jurisdiction to the High Court’s judicial review power under s.75(v) of the Commonwealth Constitution.

3.       High Court (Constitutional judicial review) – section 75(v) of the Commonwealth Constitution gives the High Court original jurisdiction in a number of matters including all matters “in which a writ of Mandamus or prohibition or injunction is sought against an officer of the Commonwealth”.  

Where a decision maker has not acted in conformity with the power given, the court will treat the decision as a nullity. The purported exercise of power is disregarded and is treated as yet to be effectively exercised. The court conducting the judicial review generally cannot substitute its decision for the decision of the original decision maker. If a court decides a decision was made beyond the scope of the original decision maker’s powers, the matter will be sent back to the relevant tribunal or government agency for the decision to be remade in accordance with the decision maker’s powers.

At common law, a number of remedies developed from prerogative writs are available where an application for judicial review is made. A prerogative writ is an official order whereby the judiciary directs another arm of government (the executive). These remedies commonly include:

1.       Mandamus – compels the performance of a public duty – i.e. compels a decision maker to make a decision.

2.       Prohibition – prohibits the decision maker from acting outside of the law.

3.       Certiorari – quashed past conduct for which there was no jurisdiction.

Less commonly:

4.       Quo warranto – requires a person to show the authority on which they hold a certain power.

5.       Procedendo – appellate court orders a lower court to proceed with judgment.

The ADJR Act expanded the type of remedies available and removed some of the requirements of the prerogative writs. For example, remedies available under s.16(1) of the ADJR Act include:

1.       Quashing or setting aside the decision;

2.       Referring the decision back to the decision maker for further consideration;

3.       Declaration stating the rights of the parties; and

4.       Directing parties to do or refrain from doing an act.

The outcome of a judicial review is very different to the outcome of an appeal where a judge can substitute the decision of the first instance judge with its own decision where necessary.

The distinction sounds easy….

The distinction between an appeal and an application for judicial review appears easy. However, it can get confusing for junior lawyers when reading a judgment where it is not made initially clear whether it is an appeal or a judicial review. In this case, scroll to the bottom of the judgment and look at the language used in the decision and orders. It is important to keep the difference in the forefront of your head. While most of the time litigation lawyers will appeal decisions, there may be circumstances in which an application for judicial review may lead to the desired outcome, especially where damages are not sought.