JUDICIAL REVIEW AND APPEALS AS ALTERNATIVE REMEDIES BY ENID CAMPBELL

JUDICIAL REVIEW AND APPEALS AS
ALTERNATIVE REMEDIES
ENIDC AMPBELL*
INTRODUCTION
In the exercise of their supervisory jurisdiction to review administrative
and other action-whether it be on application for a prerogative writ, an
injunction or declaration, or like statutory remedy-superior courts of law
reserve a discretion not to award the remedy or remedies sought, even
though the person or body against whom remedy is sought is amenable
to the particular jurisdiction invoked, and even though grounds for the
award of remedy have been made out. One reason why remedy may be
refused is that there is some other remedy, judicial or non-judicial, which
is available to the applicant for review which is equally or more appr0priate.l
That alternative remedy may be a statutory right to appeal or a contractual
right to review or appeale2
The alternative remedy by way of appeal may, in some cases, be to appeal
to a court of law, in others to a tribunal which is not a court, If the appeal
lies to a court of law, it may be an appeal in the strict sense, an appeal by
way of re-hearing, or an appeal by way of de novo hearings It may be an
appeal of a much more restricted character, for example, an appeal limited
to questions of legal validity or to questions of law only, or review upon a
case stated. Where provision has been made for appeal to a tribunal which
is not a court of law, that appeal may also be something less ample than
appeal by way of de novo hearing on the merits.
For prospective applicants for supervisory judicial review, it is obviously
* Sir Isaac Isaacs Professor of Law, Monash University.
1 See generally S. A. de Smith, Judicial Review of Administrative Action, (4th ed.,
London, Stevens, 1980) 452-7, 562-4; H. Whitmore and M. Aronson, Review of
Administrative Action, (Sydney, Law Book Co., 1978) 390-2, 444-5; B. Schwartz
and H. W. R. Wade, Legal Control of Government, (Oxford, Clarendon, 1972)
278-80, 284-6; R. F. Reid and H. David, Administrative Law and Practice, (2nd ed.,
Toronto, Butterworths, 1978 ) 327-8,369-72.
2 Provisions for reconsideration of decisions by the primary decision maker may
afford an alternative remedy but are not included in the following analysis.
3 The distinction between appeals in the strict sense and appeals by way of rehearing
in that whereas in both the appellate tribunal decides on the basis of the material
before the body whose decision is appealed against, in an appeal in the strict sense
the case is decided in accordance with the law in force at the time the decision
appealed against was made. In an appeal by way of rehearing the appeal is determined
in accordance with the law in force at the time of the appeal. An appeal by
way of de novo hearing involves the exercise of an original jurisdiction. Many
appeals from administrative decisions are of this type. See e.g. Builders' Licensing
Board v. Sperway Constructions Pfy Ltd (1976) 135 C.L.R. 616.
Judicial Review and Appeals as Alternative Remedies 15
of some importance to know whether, if they do seek a discretionary judicial
remedy, rather than avail themselves of their alternative remedy by way of
appeal, or seek both judicial remedy and appeal, the court seized of the
application for review is likely to refuse remedy because of the availability
of an appeal. To take but two examples: A person who has, or believes he
has, a statutory right to appeal against a decision of the Commissioner of
Patents to one of the courts designated by the Patents Act 1952 (Cth) as
a prescribed court (i.e. a State Supreme Court or the Supreme Court of the
Australian Capital Territory, the Northern Territory or Norfolk Island),
would, if contemplating an application for review of the same decision by
the Federal Court of Australia, pursuant to the Administrative Decisions
(Judicial Review) Act 1977 (Cth), or even direct recourse to the supervisory
jurisdiction of the High Court of Australia under s. 75 (v) of the Commonwealth
of Australia Constitution, be vitally interested in the likely response
of the Federal Court, or the High Court, as the case might be, if he were to
select it as the forum within which to pursue his grievance rather than a
prescribed court. Equally a person having standing to seek review of a
decision by the Administrative Appeals Tribunal who was considering direct
recourse to the Federal Court, again pursuant to the Administrative Decisions
(Judicial Review) Act 1977, would almost certainly wish to be advised on
the probable response of that Court if he invoked its jurisdiction rather
than pursued his appeal right, or else lodged an appeal as welL4
The principal purpose of this essay is to examine the kinds of considerations
which courts of supervisory jurisdiction have, in the past, taken into
account in determining whether the alternative remedy by way of appeal is
an appropriate alternative to judicial review and to the judicial remedy or
remedies which may be awarded on review; and in the light of that
examination to offer some conclusions which may be helpful to those called
upon to advise prospective applicants for judicial review.
In undertaking this inquiry, I have not been unmindful of the dangers
which attend attempts to elicit principles from the recorded instances of
exercise of a judicial discretion. Judicial discretions, like any other
discretions, are not rule-controlled in the sense that the decision-maker is
obliged to apply a precise set of rules or to resolve a question for which
there is only one correct answer. But a discretion may, legally, be controlled
in the sense that he or they in whom the discretion is reposed must exercise
it with regard to certain considerations, without regard to others, having
regard to the merits of the individual case and without blind adherence to
some inflexible policy. It is therefore possible that a judicial discretion to
refuse a discretionary remedy may be controlled-ultimately through review
by a higher court of the exercise of the discretion-by certain guideline^.^
4 The discretion to refuse an application for an order of review under the Act is
expressly mentioned in s. lO(2).
5 See F. C. Huntley, "Appeals Within the Judicial Hierarchy" in A. Erh-Soon Tay
16 Monash University Law Review [VOL9. , SEPT. '821
On the other hand there can be no assurance that the guidelines which
are developed will remain constant over time or that the guidelines will be
applied by all courts. Some courts may virtually start from a presumption
that if they do have jurisdiction to entertain an application for judicial
review, the application should not be refused merely because there happens
to be some other remedy available to the applicant, unless there are strong
reasons to the contrary. There are signs that in the exercise of its statutory
discretion under s. lO(2) (b) (ii) of the Administrative Decisions (Judicial
Review) Act 1977 to refuse to grant an application for an order to review
under that Act on the ground that adequate provision has been made by
law "under which the applicant is entitled to seek a review by the Court,
by another court, or by another tribunal, authority or person", the Federal
Court will start from that presumption. In Kelly v. Coat$ Toohey J. held
that a respondent to an application under the Act who requests the Court
to exercise its discretion under s. lO(2) (b) (ii) bears the onus of persuading
the Court to exercise the discretion adversely to the applicant. He held that
the onus had not, in this instance, been discharzed.
Sometimes judges who have been invited to exercise their discretion to
refuse relief on the alternative remedy ground have seemed to take the view
that once it is established that an adequate alternative remedy is available,
the circumstances presented by the applicant's case must be shown to be
exceptional to justify the court's intervention and that the grant of remedies
which are coercive in nature should be regarded as extraordinary.
There have also been cases in which although the court has exercised its
discretion against the applicant for judicial review, on the ground that
he has an appropriate remedy by way of appeal, it has, before deciding
whether to award remedy, determined the substantive issue or issues raised
in the application for review, e.g. whether the respondent did have jurisdiction,
or whether he decided on impermissible grounds.? In such cases,
the court will, in effect, have made a declaration which may well have a
direct bearing on the disposition of any appeal which is lodged, or else
make it unnecessary to proceed to appeal.
If a court is to exercise its discretion to refuse relief because of the
existence of an adequate alternative remedy, it should not, presumably, do
so of its own motion, but only if it has been invited to do so by the
respondent to the application and if the applicant for review has been
afforded an opportunity to address argument on both the very existence of
the suggested alternative remedy and the adequacy of that remedy. Cases
may arise in which although both the applicant and the respondent to the
and E. Kamenka (ed.), Law Making in Australia, (Port Melbourne, Arnold, 1980)
184; H. A. Finlay, "Judicial Discretion in Family and Other Litigation" (1976) 2
Mon. L.R. 221.
6 (1981) 35 A.L.R. 93. See also Graham v. Commissioner of Superannuation (1981)
3 A.L.N. [52].
7 E.g. R. v. Ross-Jones; Ex parte Beaumont (1979) 141 C.L.R. 504.
Judicial Review and Appeals as Alternative Remedies 17
application for judicial review are aware of the availability of alternative
remedy by way of appeal, they have adjudged the dispute between them to
be one which should be decided by means of an application for judicial
review. I see no good reason why, in a case of this kind, the court should
not, if it discovers through its own inquiries that there may be remedy by
way of appeal, direct that the parties address argument on the question of
how its discretion should be exercised, or perhaps even on the question of
whether the provisions establishing the right to appeal have the effect of
ousting the court's supervisory jurisdiction. Should it appear to the court
that the parties have colluded to invoke its supervisory jurisdiction in order
to circumvent statutory provisions which, on their face, are designed to
provide a more than ample substitute for review in that supervisory jurisdiction,
it might well be thought appropriate by the court to invite
intervention by the relevant Attorney-General (in his capacity as parens
patriae) as a party, or if that course is not open, appearance by that
Attorney-General as amicus curiae.
PRELIMINARY QUESTIONS
No occasion will arise for the exercise of the judicial discretion to deny
remedy on the ground that there is some other appropriate remedy unless
the court to which application for review is made is satisfied that the judicial
remedy and the other remedy are indeed alternatives. If, therefore the court
determines that its own jurisdiction to review has been excluded by the
establishment of the other remedy, or that the particular judicial remedy
sought is not available, then it must necessarily dismiss the application.
Similarly, it will have no discretion if it determines that the case is one in
which, by reason of the status of the applicant, or the nature of the error
complained of and established, judicial remedy must be granted ex debito
ju~titiae.~
It may also happen that the remedy which the respondent to the application
asserts is an alternative to judicial review, is not, in the circumstances,
available; or that if that remedy is available, it is not one which, if pursued,
would permit the applicant to raise the issues which he has raised in his
application for judicial review.
(a) Exclusion of judicial review
In the absence of any entrenched constitutional provisions, such as
s. 75(v) of the Commonwealth of Australia Constitution which confers an
original jurisdiction on the High Court of Australia to hear and determine
applications for writs of mandamus and prohibition, and injunctions against
officers of the Commonwealth, parliaments are free to enact legislation
which abolishes or curtails the supervisory jurisdiction invested in superior
8 See fn. 47 below.
Monash University Law Re v i ew [VOL.9 , SEPT.' 821
courts by prior legislation, and to enact legislation which makes statutory
mechanisms for review exclusive of those available in a supervisory jurisdiction.
It is also fairly well established that when a parliament, by its
enactment, creates an entirely new type of legal right or an entirely new
type of legal duty, and establishes a special procedure for enforcement of
the right or duty, the special procedure is the only procedure available for
enfor~ement.~
But courts of law have also presumed that legislation does not operate
to remove or curtail established judicial jurisdictions unless the legislature
has made its intention to achieve that result manifestly clear.1° So-called
privative clauses, which, on their face, purport to exclude or restrict
supervisory judicial review, have been interpreted restrictively, and so much
so that it may be impossible for a parliament to devise any form of words
which is effective to exclude judicial review for those errors which courts
are prepared to characterize as errors going to jurisdi~tion.J~u dicial
attitudes to contractual clauses which are designed to preclude or restrict
access to courts have been similar.12
There have been numerous judicial statements to the effect that the mere
fact that a parliament has conferred a statutory right to appeal against
decisions or other action previously reviewable in a supervisory judicial
jurisdiction does not oust the supervisory jurisdiction in relation to those
decisions which are subject to appeal, and that the existence of the
statutory appeal bears only on the courts' discretion to decline to award
a remedy.13 Yet there have been instances in which it has been held that a
particular statutory mode of contesting an administrative decision is the
exclusive mode of challenge. For example in Stepney Borough Council v.
Walker (John) & Sons Ltd,14 the House of Lords held that mandamus was
not available at the suit of a person aggrieved by the non-inclusion of
Q Barraclough v. Brown [I8971 A.C. 615.
10 See de Smith, op. cit. 357-62 and Pyx Granite Co. v. Ministry of Housing & Local
Government [I9601 A.C. 260.
11 See Anisminic v. The Foreign Compensation Commission [I9691 2 A.C. 147. On
privative clauses generally see de Smith, op. cit., Ch. 7 and Whitmore and Aronson,
op. cit., Ch. 15.
12 See Lawlor v. Union of Post Ofie Workers 119651 Ch. 712, 733, 734; Leigh V.
National Union of Railwaymen [I9701 Ch. 326, 334; cf. White v. Kuzych [I9511
A.C. 585.
33 Burder v. Veley (1840) 12 Ad. & E. 233; White v. Steele (1862) 12 C.B. (N.S.)
383, 409-10; Mayor of London v. Cox (1867) L.R. 2 H.L. 239, 278, 278-9; R. V.
Brisbane 11.; Ex parte Queensland Treasurer (1901) 11 Q.L.J. 79; Mooney v.
Commissioner of Taxation (1905) 3 C.L.R. 221, 236, 246-7 (reversed on other
grounds 4 C.L.R. 1439); Turner v. Kingsbury Collieries Lid [I9211 3 K.B. 169,
175; R. v. North; Ex parte Oakey [I9271 1 K.B. 491; R. v. Commonwealth Court
of Conciliation and Arbitration; Ex parte Whybrow & Co. (1910) 11 C.L.R. 1,
21; R. V. Postmaster-General; Ex parte Carmichael [I9281 1 K.B. 291, 298; Vowel1
v. Shire of Hastings [I9701 V.R. 764, 765; Buchan v. Swan [I9791 1 N.S.W.L.R. 19,
36; R. v. Hull Board of Visitors; Ex parte St. Germain [I9791 Q.B. 425, 448-9; R.
v. Judges of Federal Court of Australia; Ex parte W.A. National Football League
(Inc.) (1979) 143 C.L.R. 190.
119341 A.C. 365, 395-7. Cf. Tooth & Co. v. Parramatta C.C. (1955) 97 C.L.R.
492,497-8; North Sydney M.C. v. Comfytex Pty Ltd [I9751 1 N.S.W.L.R. 447.
Judicial Review and Appeals as Alternative Remedies 19
premises in a special rating list, on the ground that the legislature had
prescribed a special procedure for determination of objections of this kind:
by an assessment committee, subject to appeal to Quarter Sessions, and
then special case stated to the King's Bench Division and beyond to the
Court of Appeal and House of Lords.
Although it is clear that the House of Lords regarded the statutory
procedure as the only procedure by which the particular objection made in
this case could be taken, that objection was hardly of a kind which a court
of law today would immediately recognize as one which, if sustained, would
clearly bring it within the range of fundamental errors for the correction of
which the supervisory jurisdiction is mainly designed. There was no suggestion
that the rating authority had been derelict in the performance of its
duty to make a determination according to law. The right of the aggrieved
party to have premises classified in a certain way was a right which, if it
existed, existed only by statute, and any decision as to how those premises
were to be classified necessarily involved the exercise of judgment. In short
the alleged error which gave rise to the application for mandamus could
hardly be characterized as a clear case of jurisdictional error or wrongful
disclaimer of jurisdiction.
Subsequent cases in which judicial review has been sought in relation to
action taken in the preparation of valuation rolls suggests that even when
the legislature has provided for a special procedure for contesting decisions
made in relation to particular premises, the existence of that procedure will
not exclude a supervisory jurisdiction to review when the error complained
of, if established, affects the validity of a complete valuation roll or list?"
An express statutory provision which makes a statutory appeal the sole
mode of contesting a decision may be effective to exclude supervisory
review of decisions of the type subject to appeal, though it may be that the
efficiency of such a clause to achieve that result will depend on the status
of the body to whom appeal lies. In Minister of Labour and Industry
(N.S. W.) v. M.L.C. Assurance Co. Lt&6 the High Court of Australia held
that provisions in the N.S.W. Industrial Arbitration Act 1912 which
provided for appeals (and cases stated) to the State Court of Industrial
Arbitration against magisterial orders imposing penalties and which also
declared that: "No other proceedings in the nature of an appeal from any
such order or by prohibition shall be allowed", effectively excluded the
jurisdiction of the Supreme Court to grant a writ of prohibition against a
magistrate who imposed a penalty under the Act, even when it was alleged
that the magistrate had exceeded his jurisdiction. Whether the Court
attached any significance to the fact that judges of the Industrial Court had
judicial status is not indicated in the reasons for decision. In McBeatty v.
15 See R, v. Paddington Valuation Oficer; Ex parte Peachey Property Corporation
Ltd [I9661 1 Q.B. 380; Anderson v. Valuer-General [I9741 1 N.Z.L.R. 603.
16 (1922) 30 C.L.R. 488, 494-5.
20 Monash University Law lieview [VOL. 9, SEPT. '821
Gorntan17 Waddell J . did treat that fact as material to the question of
whether appeal to the Industrial Commission was an adequate alternative
to an order by way of mandamus against a magistrate who had declined
jurisdiction. He thought it was. He did not hear argument or rule on the
question whether the clause purporting to make the statutory remedy the
exclusive remedy was legally effective to exclude the Supreme Court's
jurisdiction.
It may be concluded that when a statutory right of appeal is conferred in
respect of decisions which previously were subject to supervisory review,
nothing short of an express provision ousting supervisory review and
declaring appeal to be the exclusive mode of contesting decisions of that
type will be construed as effective to exclude the jurisdiction to undertake
supervisory review. No such clauses will be effective to oust a constitutionally
entrenched supervisory jurisdiction. So jealous have superior courts
of law been of their long-established jurisdiction to control the jurisdictional
excesses of inferior courts and statutory agencies that it is conceivable that
they would not regard an express statutory provision declaring a statutory
appeal procedure to be the exclusive mode of contesting a decision as
effective to exclude judicial review on jurisdictional grounds unless, perhaps,
the appellate jurisdiction has been reposed in a superior court of law?8
(b) Unavailability of judicial review or remedy on other grounds
There can be no choice between judicial remedy and remedy by way of
appeal if, for one reason or another, there is no and never was any
supervisory jurisdiction in the particular cause; or if the particular remedy
sought is not available; or if the person seeking judicial review lacks the
requisite standing to sue.
An application for prohibition or certiorari may founder at the outset
because the person or body against whom the remedy is sought is not of the
class of persons or bodies whose actions are amenable to judicial review
and remedy by those particular means?Uny application for a prerogative
writ or order may founder on the ground that the respondent is effectively
the Crown; or, if the original jurisdiction of the High Court under s. 75 (v)
of the Constitution is relied upon, on the ground that the respondent is not
an officer of the Commonwealth. Should the applicant for judicial review
have sought to invoke the supervisory jurisdiction of the Federal Court
under the Administrative Decisions (Judicial Review) Act 1977, his
application may fail simply because the action of which he complains is not
action of a kind which that court is authorized to review under the Act.
Likewise a State Supreme Court may find it necessary to reject an application
17 [I9751 2 N.S.W.L.R. 262.
1s See fn. 46.
19 As in Turner v. Kingsbury Collieries Ltd [I9211 3 K.B. 169; Re Legare & Calgary
Municipal Planning Commission (1972) 28 D.L.R. (3d) 279 and Chakrovorly v.
Attorney-General, Alberta 119721 4 W.W.R. 437.
Judicial Review and Appeals as Alternative Remedies 21
for review on the ground that whatever its merits, the application concerns
Commonwealth action which, by s. 9 of the Administrative Decisions
(Judicial Review) Act 1977, the Court is debarred from revie~ing.~
When the application for judicial review concerns action (or inaction)
on the part of university or other authorities whose constituent instrument
provides for the office of visitor and invests in that officer "authority to do
all things which appertain to visitors as often as to him seems meet", it is
possible that jurisdiction to review will be disclaimed inasmuch as the subject
matter of complaint falls within the visitor's exclusive jurisdiction. The
existence and extent of that exclusive jurisdiction is controversial and
cannot be entered upon here.n
A court to which an application for review is made may sometimes have
doubts about its own jurisdiction to entertain the application or to award
the remedy sought, and rather than rejecting the application outright on
jurisdictional grounds, it may proceed to entertain it on the assumption
that even if it does have jurisdiction, it should decline to grant remedy on
discretionary grounds. One kind of situation in which a court may take this
course is where there is uncertainty about whether the alleged error in
respect of which remedy is sought goes to jurisdiction or not. It is now well
established that certiorari will not lie to quash decisions which proceed
from non-jurisdictional errors of law unless those errors are disclosed on
the face of the record, or unless there is some statutory rule which permits
the writ to be granted for error of law, regardless of whether it is patent on
the record." It is also well established that the companion writ of prohibition
does not lie for non jurisdictional errors of law, notwithstanding that they
may be disclosed by the record.23 Although the importance of the distinction
between jurisdictional errors and non jurisdictional errors of law has
20 Section 9 effectively withdraws from State Supreme Courts the supervisory jurisdiction
previously exercisable by them under s. 39(2) of the Judiciary Act 1903 in
relation to the actions of Commonwealth officers.
Recent cases on the exclusive jurisdiction of university visitors include Patel v.
University of Bradford Senate [I9791 1 W.L.R. 1066 (affirming Megarry V.C.
[I9781 1 W.L.R. 1488); Murdoch University v. Bloom [I9801 W.A.R. 193. See
also Re University of Melbourne; Ex parte de Simone El9811 V.R. 378; J. W.
Bridge, "Keeping the Peace in the Universities: The Role of the Visitor" (1970)
86 L.Q.R. 531; R. J. Sadler, "The University Visitor . . ." (1981).7 U. Tas. L.R. 2;
P. M. Smith, "The Exclusive Jurisdiction of the Univers~ty Visitor" (1981) 97
L.Q.R. 610.
22 Decisions etc. reviewable by the Federal Court under the Administrative Decisions
(Judicial Review) Act 1977 (Cth.) are reviewable, inter alia, for error of law
whether or not the error appears on the record, see s. 5(l) (f) and s. 6(1)(f).
23 Mackonochie v. Penzance (Lord) (1881) 6 App C. 624; R. v. Local Government
Board (1882) 10 Q.B.D. 309; R. v. Clerkenwell General Commissioners of Taxation
[I9011 2 K.B. 879; R. v. Commissioner of Patents; Ex parte Weiss (1939) 61
C.L.R. 240; R. v. Industrial Court; Ex parte Federated Miscellaneous Workers'
Union [I9671 Qd.R. 349, 360; R. v. Syme; Ex parte Page [I9701 W.A.R. 153, 157;
R. v. Evatt; Ex parte the Master Builders' Association of N.S.W. (No. 2) (1974)
132 C.L.R. 150; R. v. Stanley; Ex parte Redapple Restaurant Pty Ltd (1976) 13
S.A.S.R. 290; R. v. Judges of Federal Court of Australia; Ex parte Pilkington etc.
(1979) 142 C.L.R. 113; R. v. Judges of Federal Court of Australia; Ex parte Soul
Pattinson (Laboratories) Pty Ltd (1979) 142 C.L.R. 113.
Monash Univer s i ty Law Re v i ew [VOL9. , SEPT.' 821
diminished by reason of judicial extensions of the range of legal errors
characterized as errors going to jurisdiction, in Australia at least, the
distinction is still maintained.%
One consequence is that when confronted with an application for judicial
review of some matter in which the character of the error complained of is
controversial and also critical to the question of whether the court does
have jurisdiction to review, the court may, if it considers that there is an
alternative remedy by way of appeal which, if pursued, would permit an
authoritative resolution of the questions of law raised upon the application
for review, either disclaim its own jurisdiction to review, or whilst assuming
jurisdiction, deny remedy on the ground that the remedy by way of appeal
is as appropriate or more appropriate.% Whichever of these courses a court
adopts may not constrain it from expressing an opinion on the substantive
issue presented for its decision, which opinion cannot be safely ignored in
any subsequent proceedings. For example, it is not unknown for a court to
dismiss an application for prohibition on the ground that determination of
the question in issue falls within the jurisdiction of the person or body
sought to be prohibited, but at the same time to express a view on the
manner in which that question should be decided, or on the factors which
should be considered in deciding it?
(c) Availability of appeal
Before a court of supervisory jurisdiction reaches the stage of deciding
whether judicial remedy should be refused because of the availability of an
adequate alternative mode of review, it must have satisfied itself that the
suggested alternative is indeed available to the particular applicant. The
onus of establishing that it is falls on the respondent and if there is any real
doubt about whether it is, the court is likely to resolve it in the applicant's
favour.27
The availability of an appeal in the instant case must obviously be
considered in relation to the particular issue or issues raised on the application
for judicial review. So if, for example, what is contested is the
respondent's authority to make an order for costs, the respondent could not
resist judicial review unless he could show that the provision made for
24 R. V. Small Claims Tribunal; Ex parte Barwiner Nominees Pty Ltd [I9751 V.R.
831. See also South East Asian Fire Bricks Sdn Bhd v. Non Metallic Mineral
Products Manufacturing Employees' Union [I9811 A.C. 363; cf. Re Racal
Communications Ltd [I9811 A.C. 374.
5 See e.g. R. v. Comptroller-General of Patents; Ex parte Tomlinson [I8991 1 Q.B.
909, 914-5. See also cases in fn. 82.
26 E.g. R. v. Judges of Federal Court of Australia; Ex parte Pilkington etc. (1979)
142 C.L.R. 113; R. v. Judges of Federal Court of Australia; Ex parte Soul Pattinson
" (Laboratories) Pty Ltd (1979) 142 C.L.R. 113. R. v. Cotham [I8981 1 Q.B. 802, 806; R. v. North; Ex parte Oakey [I9271 1 K.B.
491; Bosnjak's Bus Service Pty Ltd v. Commissioner of Motor Transport (1970)
92 W.N. (N.S.W.) 1003,1019.
Judicial Review and Appeals as Alternative Remedies 23
appeals against his decisions extended to decisions of the kid here in
If the jurisdiction of the appellate body is defined in terms of a
jurisdiction to hear and determine appeals against decisions of a particular
kind, it will be necessary to decide first whether the subject of the application
for judicial review is a decision within the meaning of the legislation
governing appeals and if so a decision which is ap~ealableI.f ~t~h e application
for judicial review is made before the respondent has made an
appealable decision, for example if a writ of prohibition or an injunction
is sought to restrain proceedings which are being conducted in breach of a
duty to accord natural justice, the court may well take the view that the fact
that any ultimate decision on the merits would be appealable is irrelevant.
Whether the subject of the application for judicial review is appealable
may also depend on the ground or grounds on which the review is sought.
If, for example, it is asserted that the decision under review is null and
void, it may be unappealable because the jurisdiction of the appellate body
extends only to the hearing and determination of appeals against valid
decisions. Although there have been some cases in which courts themselves
have disclaimed jurisdiction to hear and determine appeals against nullities,
or have held that other appellate tribunals lack jurisdiction to decide
appeals against determinations which are null and void,3O it cannot be said
that there is any general rule that an appellate jurisdiction does not extend
to appeals against nullities.31 Whether such a jurisdiction does encompass
appeals against nullities seems to depend on the manner in which the
appeals jurisdiction is defined, the scope of review on appeal, and the nature
of the invalidating cause.
28 R. v. South Brisbane JJ.; Ex parte Zagami (1901) 11 Q.L.J. 81. See also Re Weber
& Metro Licensing Commission (1964) 43 D.L.R. 2d 334.
29 On what constitutes an appealable decision see Deputy Commissioner of Patents V.
Board of Control of Michigan Technological University (1979) 28 A.L.R. 551;
Re Hare & Commissioner of Superannuation (1979) 2 A.L.D. 233; Re Loschiavo
& Secretary of Department of Housing & Construction (1980) 2 A.L.D. 757;
Duncan v. D.F.R.D.B.A. (1980) 30 A.L.R. 165; Collector of Customs (N.S.W.) v.
Brian Lawlor Pty Ltd (1979) 24 A.L.R. 307; Re Rennie & D.F.R.D.B.A. (1979)
2 A.L.D. 424; BHP Ltd v. American Can Co. [I9801 V.R. 143; Mobitel (International)
Pty Ltd v. Dun & Bradstreet (Aust.) Pty Ltd (1979) 22 S.A.S.R. 288;
Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571.
30 E.g. Watfs v. Giesecke (1870) 4 S.A.L.R. 123; Lincoln v. Sinclair (1885) 1 W.N.
(N.S.W.) 143; Harman v. Ogcial Receiver 119341 A.C. 245; Barnard v. Nationdl
Dock Labour Board [I9531 2 K.B. 18; Nelson Catchment Board v. Wairnea County
& Richmond Borough [I9581 N.Z.L.R. 1126; Chapman v. Earl [I9681 2 All E.R.
1214; Metropolitan Properties Co. (F.G.C.) Ltd v. Lannon [I9691 1 Q.B. 577; R. v.
Jones [I9691 2 Q.B. 33; Joseph v. Egan (1970) 13 F.L.R. 497; Campbell v. Rochdale
General Commissioners [I9751 2 All E.R. 385; Yule v. Junek (1978) 52 A.L.J.R.
307; Hanson v. Church Commissioners for England [I9781 Q.B. 823; Farbenfabriken
Bayer Aktiengesellschaft v. Bayer Pharma Pty Ltd (1965) 113 C.L.R. 520.
31 Meyers v. Casey (1913) 17 C.L.R. 90; Wild v. Wild [I9681 3 W.L.R. 1148; Alan E.
Tucker Pty Ltd v. Orange C.C. (1969) 90 W.N. (Pt. 1) 477, 480-1; Stringer v.
Minister of Housing & Local Government 119711 1 All E.R. 65, 75; R. v. Hillington
B.C.; Ex parte Royco Homes Ltd [I9741 1 Q.B. 720; Collector of Customs (N.S.W.)
v. Brian Lawlor Automotive Pty Ltd (1979) 24 A.L.R. 307; Calvin v. Carr [I9801
A.C. 574.
24 Monash University Law Review [VOL. 9, SEPT. '821
Even if the appellate body does have jurisdiction to hear and determine
an appeal against the decision which is the subject of the application for
review, it is possible that its jurisdiction is confined in such a way that it
cannot, in deciding the appeal, make a determination on the issue which is
raised for decision on the application for judicial review. A tribunal having
jurisdiction to hear and determine appeals against assessments for rating
purposes may not, for example, have jurisdiction to enter upon the validity
of the rate struck, or the validity of the total valuation roll.32
A complete want of jurisdiction in the appellate body to decide an appeal
on the ground raised in the application for judicial review is not the same
as having jurisdiction to make a determination on that ground, but not a
biding and conclusive determination. The difference between the two was
adverted to by Brennan J. sitting as President of the Administrative Appeals
Tribunal in Adams v. Tax Agents Board.33 In that case one of the grounds
on which the decision under review was challenged was that the legislation
pursuant to which the decision was made was unconstitutional. Brennan J.
accepted that since the Tribunal did not possess any of the judicial powers
of the Commonwealth, it could not in determining an appeal properly
before it make a binding and conclusive determination on the constitutionality
of legislation. The alleged invalidity of the legislation under which
the respondent to the appeal had acted was not "a ground which might
invoke the exercise of the Tribunal's powers".34 Further, "when a decisionmaker
acts in conformity with his statutory authority, a person whose
interests are affected by his act may not obtain relief from this Tribunal
upon the ground that the statute is ultra vires the Parliament."35
It might be inferred from these observations that Brennan J. considered
that the Tribunal lacked jurisdiction to rule on the constitutional issue. But
other observations by him in the same case show that this was not his view.
Rather the Tribunal was competent "to consider and reach an opinion on
the question" and to do so "for the purpose of moulding its own conduct."36
But this competence was "not to be treated as a jurisdiction invested in the
administrative body to reach a conclusion having legal effect."37 In the end,
Brennan J. declined even to express an opinion on the constitutional
question. His view was that an administrative body ought not "to consider
constitutional validity of a statute affecting its power."3g Similar views have
been expressed in other cases in which administrative appeals tribunals
52 EX parte Coff's Harbour S.C.; Re Allen (1957) 36 W.N. (N.S.W.) 103; R. V.
Paddington Valuation Oficer; Ex parte Peachey Property Corporation Ltd [I9661
1 Q.B. 380; Anderson v. Valuer-General [I9741 1 N.Z.L.R. 603.
38 (1977) 12 A.L.R. 239.
34 Id. 245.
36 Ibid.
36 Id. 241, 242.
37 Id. 245.
38 Id. 243.
Judicial Review and Appeals as Alternative Remedies 25
have been invited to rule on the validity of subordinate legislation on
non-constitutional grounds.39
If, on an application for judicial review, it appears that although the
appellate body to whom the applicant for review might appeal does have
jurisdiction to form an opinion on the issue which is now before the court,
but cannot make a binding determination with respect to it, that consideration
must weigh very strongly against any argument that the appeal is an
effective alternative to judicial review.
In determining whether remedy by way of appeal is an available alternative
to judicial review, account must be taken of whether review by way
of appeal is automatic upon request, or whether leave to appeal must be
sought and obtained. Regard must also be had to the powers exercisable by
the appellate body and whether they are of a kind which enable that body
to correct the error for which judicial remedy has beeen sought. Review
upon appeal could not be regarded as a true alternative remedy if establishment
of a tribunal for the hearing and determination of an appeal is
discreti~nary.If~ an appellant needs to obtain special leave to appeal,
whether from the appellate body or some other body, and the grant of leave
to appeal is discretionary, that may also be a ground for concluding that
appeal is not truly an alternative to judicial review.
Notwithstanding that the applicant for judicial review has a right to
appeal in the sense that if he lodges an appeal he is entitled to have his
appeal heard and determined, and to seek and obtain a writ of mandamus
or mandatory injunction to enforce his right, his remedy by way of appeal
may not be a true alternative to the judicial remedy sought inasmuch as
even if his appeal should succeed, the appellate body lacks power to rectify
the error complained of. In R. v. Hull Board of Visitors; Ex parte
St. Germain4I the English Court of Appeal held that the provision made in
Prison Rules for review of decisions of Boards of Visitors on petition to
the Home Secretary was no true alternative to remedy by certiorari. The
right to petition to the Minister for redress of grievances was not, strictly
speaking, a right to appeal, and more important for present purposes, the
Minister had no power to quash a finding by a Board of Visitors that a
prisoner had been guilty of a breach of discipline.
An appellate body may have jurisdiction to undertake a de novo hearing
and review a decision on its merits, but if it cannot make a decision in
substitution for that appealed against, but merely confirm that decision or
else recommend to the person or body making it that it be set aside or
varied, then it would be difficult to sustain an argument that the right to
39 Albion v. Shire of Lilydale (1976) 5 V.P.A. 32; Re Zimmax Trading Co. Pty Ltd
& Collector of Customs (N.S.W.) (1979) 2 A.L.D. 120; Re Costello & Secretary
of Department of Transport (1979) 2 A.L.D. 934, 939.
40 R. V. Town Planning Committee; En parte Skye Estate Ltd [I9581 S.A.S.R. 1, 21-4,
27-8, 39-40.
a [I9791 Q.B. 425, 448-9, 456, 465,
26 Monash University Law Review [VOL. 9, SEPT. '821
appeal was an alternative to supervisory judicial proceedings in which the
very validity of the appealable decision was impugned. Appeals to the
Administrative Appeals Tribunal against ministerial decisions to order
deportation pursuant to ss. 12 and 13 of the M;gration Act 1958 fall into
this category.*
Whether appeal is an alternative to judicial remedy must also be
considered in relation to the standing of the applicant to appeal. The
applicant for judicial review may well be a person who has locus standi to
sue for the particular remedy sought, but not be one who, under the legislation
providing for appeals, would have standing to appeal. In this
connexion it needs be borne in mind that although prerogative writs,
injunctions and declarations may be obtained to vindicate personal rights,
breach of which is also an actionable wrong, they are also proceedings for
the vindication of public rights. And for the vindication of those public
rights, individuals may be accorded standing on a much more generous
basis than is allowed in appellate proceedings.
Doubts about the standing of the applicant for judicial review to appeal
was one of the reasons why in R. v. North; Ex parte Oakey* the English
Court of Appeal decided that the appeal was not a bar to an application
for prohibition. In that case a Consistory Court had made a determination
imposing a liability on the applicant for review. He was not a party to the
proceedings and had not been afforded an opportunity to be heard.
Determinations of the Consistory Court were appealable to the Court of
Arches, but it was doubtful whether the applicant for review could invoke
that appellate jurisdiction, he not being a party to the proceedings in which
the adverse determination was made.
Another reason why appeal may not be a viable alternative to judicial
review is that although the applicant for review could have appealed, and
on the very ground now raised in the application for review, the time for
lodging an appeal has expired and is incapable of being extended. The
failure of the applicant to avail himself of his right to appeal within the
prescribed time could have a bearing on the question of whether judicial
remedy should be denied on the separate ground of undue delay in seeking
it. But the fact that there is a limit on the time within which an appeal
must be lodged is certainly no absolute and universal bar to judicial review.
In Graddage v. London Borough of H~ringeya, ~d eclaration was granted
in relation to the validity of a notice to pay the costs of work undertaken by
a local authority following non-compliance with a prior order that the work
be performed by the party receiving the notice. A declaration was granted
notwithstanding that the time for appealing against the notice had expired.
That the time for appeal had expired was also treated as irrelevant in R. v.
42 Migration Act 1958 (Cth), s. 66A.
a [I9271 1 K.B. 491.
a [I9751 1 All E.R. 224.
Judicial Review and Appeals as Alternative Remedies 27
Agents Board of A.C.T.; Ex parte Green.45 There a writ of certiorari was
sought to quash a decision of the Board that the applicant be refused
registration. It was sought on the ground that the decision had been made
in contravention of a duty to accord natural justice. The applicant could
have appealed against the decision to the A.C.T. Supreme Court. She had
not within the prescribed time, but had made an application to the Court
for an extension of time, mainly on the ground that notice of the Board's
determination had not arrived within sufficient time to enable her to consider
whether to appeal. That application had been refused, but only because the
Court concluded that it had no power to grant it.
If the statutory right to appeal within a prescribed time is expressly
declared to be the exclusive mode of review, a question will arise as to
whether in law supervisory review is excluded altogether. Subject to any
applicable constitutional constraints, it may be that if the right to appeal is
to a court of law which has authority to undertake the kind of review which
otherwise would be undertaken by a court of supervisory jurisdiction, the
time-limited appeal will be construed as the sole mode of challenge, or at
least the sole mode of challenging for non-jurisdictional errors of law.4B
IS THERE A DISCRETION?
Even when it is clear that appeal is available as an alternative remedy and
that it is a suitable alternative to judicial review, the case may be one in
which the court concludes that it has no discretion to decline remedy
because the applicant is entitled to the judicial remedy sought ex debito
justitiae. There is considerable authority for the view that where prohibition
or certiorari is sought for patent jurisdictional error, a court has no
discretion to refuse the writ once it has determined that the error complained
of does indeed amount to a patent jurisdictional excess.47
STAGE AT WHICH DISCRETION IS EXERCISED
Although a respondent may have made his objection to the grant of the
remedy sought on discretionary grounds at the beginning of the hearing, if
the court follows established practice it will not rule upon it as a preliminary
issue but will rather proceed to consider the merits of the applicant's case
and decide the question of how its discretion should be exercised only at
the conclusion of the case.
It appears that the practice of the Federal Court of Australia in exercising
45 (1970) 15 F.L.R. 306, 313; cf. Chad Investments Ltd v. Longson, Tammels &
Denton Real Estate Ltd [I9711 5 W.W.R. 89.
46 R. v. Secretary of State for the Environment; Ex parte Ostler [I9771 Q.B. 122.
*7 Yirrell v. Yirrell (1939) 62 C.L.R. 287, 297; R. v. Postmaster-General; Ex parte
Carmichael 119281 1 K.B. 291, 299; R. v. Comptroller-General of Patents &
Designs; Ex parte Parke Davis & Co. [I9531 2 W.L.R. 760, 764-5; R. v. Tillett; Ex
parte Newton (1969) 14 F.L.R. 101, 123; R. v. Hillington B.C.; Ex parfe Royco
Homes Ltd [I9741 1 Q.B. 720; R. v. Town Planning Committee; Ex parte Skye
Estate Ltd [I9581 S.A.S.R. 1; R. v. Elliott; Ex parte Elliott (1974) 8 S.A.S.R. 329,
342-3.
Monash University Law Review [VOL9. , SEPT. '821
the discretion conferred on it by s. lO(2) (b) (ii) of the Administrative
Decisions (Judicial Review) Act 1977 is likely to be different. In Kelly v.
Coatse and Graham v. Commissioner of Superannu~tionT~o~oh ey J . and
Fox A.C.J. respectively dealt with the respondent's request that the Court
exercise its discretion adversely to the applicant as a preliminary issue and,
seemingly, as one which ought to be determined before the merits of the
applicant's application for review were examined. The Act does not
expressly require that this course be adopted and it is doubtful whether it
can be so interpreted, which is not to say that it is impermissible for the
Court to take the approach it did in the two cases referred to.
The Act does not, like s. 31 of the United Kingdom Supreme Court Act
1981, require an applicant for review to seek and obtain the Court's leave
to have his case reviewed. It is true that ss. 5, t~ and 7, which define the
grounds on which review may be sought, when read together with s. 10(2)(b),
might be interpreted as giving the Court a discretion to decline to exercise
jurisdiction on the two grounds set out in s. lO(2) (b). Sections 5, 6 and 7
provide that an aggrieved person "may apply to the Court for an order of
review" on certain grounds. Section lO(2) (b) states that "the Court may,
in its discretion, refuse to grant an application under section 5, 6 or 7" on
specified grounds. But s. 16, which describes the remedies the Court may
award, makes it clear that a decision on an application for an order of
review is not to be a decision on whether the Court should or should not
exercise its jurisdiction to review. The orders which s. 16 authorizes the
Court to make are orders which may be made "on an application for an
order of review". In contrast s. 1 l(4) gives the Court a discretion to "refuse
to entertain an application for an order of review" when no period for
making of the application has been prescribed, and the Court is of the
opinion that it was not made within reasonable time.
There is thus a clear distinction between refusing to entertain an
application for an order of review and deciding an application for such an
order, albeit on the ground that whatever the merits of his case, the
applicant has an adequate alternative remedy. Doubtless there will be many
cases in which, once the respondent has requested the Court to exercise its
discretion under s. lO(2) (b), it is convenient for that objection to be ruled
upon as a preliminary issue. The interests of neither party may be served if,
despite the respondent's objection, the case proceeds to hearing and determination
of the substantive grounds of the application and concludes with
a finding, on the merits, in the applicant's favour but a refusal of his
application on either of the grounds referred to in s. lO(2) (b).
But it would, I believe, be unfortunate if the view were to gain hold that
once the alternative remedy ground is raised by a respondent, the Court
should, as a matter of course, dispose of it as a preliminary issue, without
4-s (1981) 35 A.L.R. 93.
49 (1981) 3 A.L.N. 1.521.
Judicial Review and Appeals as Alternative Remedies 29
inquiry into the grounds advanced by the applicant in support of his
application. Assessment of the adequacy of the suggested alternative remedy
may not be possible until the strength of the applicant's claim is ascertained.
Similarly if the applicant contests the very availability of the suggested
alternative remedy on, for example, the ground that the error of which he
complains rendered the decision he seeks to have reviewed a complete
nullity and that the appellate tribunal has no jurisdiction to hear and
determine appeals against nullities, then the Court cannot make an informed
ruling on the issue thereby raised until it decides not merely the ambit of
review on appeal, but also whether the administrative decision under
challenge was indeed a nullity. Again, if the Court accepts that it may have
no discretion to refuse relief when patent jurisdictional error is established,
it cannot properly reject an application on the alternative remedy ground
at the preliminary stage if any of the grounds relied upon by the applicant
suggest that such an error may have been committed.
FACTORS RELEVANT TO EXERCISE OF DISCRETION
When an appeal is available as an alternative to judicial review, courts do
not always spell out in any detail why it is that they conclude that appeal is
a suitable alternative remedy and that the judicial remedy or remedies
sought should be refused. Nor do they always explain why it is that, despite
the existence of a right to appeal, they have concluded that judicial remedy
is more or just as appropriate and that in consequence the discretion to
refuse remedy on the alternative remedy ground should not be exercised
against the otherwise meritorious applicant for review. Nevertheless there
are sufficient reported cases in which reasons have been given to enable one
to identify at least some of the factors which have been considered relevant
in determining whether judicial remedy should be denied; which is not to
say that courts will always have regard to these factors or adopt a uniform
approach in assessing their significance.
It is apparent that some courts have been much more ready than others
to allow their supervisory jurisdiction to be utilized notwithstanding that
the legislature has afforded the applicant an equally efficacious remedy by
way of appeal. Other courts seem to have proceeded from the assumption
that the supervisory jurisdiction is an extraordinary jurisdiction which
should not be invoked unless there is no other forum in which the applicant
may have his grievance redressed.
Whether or not remedy by way of appeal is considered to be an adequate
alternative to the judicial remedy or remedies sought seems to depend on
a wide variety of factors, among them: the nature of and the time at which
judicial remedy is sought; the ground or grounds on which remedy is sought;
the status and powers of the appellate body; the nature and scope of
review on appeal; the relative costs of appeal and judicial review; the
relative speed with which the matter in dispute is likely to be resolved
30 Monash University Law Review [VOL9. , SEPT.' 821
depending on which remedy is pursued, and the importance of a speedy
resolution; whether or not an appeal is pending; and whether or not an
appeal has been lodged and already determined.
Since rather different considerations appear to come into play according
to the stage at which judicial remedy is sought of a court of supervisory
jurisdiction, I have chosen to examine the exercise of the judicial discretion
according to whether the application for judicial review is made (a) prior
to the giving of a final decision on the merits by the respondent to the
application; (b) following the giving of a final decision on the merits by
the respondent and without recourse to remedy by way of appeal; (c)
following the giving of a final decision on the merits by the respondent and
concurrently with the lodging of an appeal; and (d) following the giving
of a final decision on the merits by the respondent and after an unsuccessful
appeal.
(a) Judicial review before final decision
Typically remedy by way of appeal is resorted to only when the person
or body whose decisions are subject to appeal has purported to exercise a
jurisdiction and has made a final decision. An appellate jurisdiction may
have been defined in such a way as to encompass disclaimers of power or
jurisdiction, for example, a refusal by the Commissioner of Patents to grant
an application for extension of time under s. 160 of the Patents Act 1952
on the ground that the conditions precedent for the exercise of discretion
conferred by that section have not been f~lfilledT.~he~ appellate jurisdiction
may also have been defined in such a way as to encompass appeals against
interlocutory decisions, e.g. a decision regarding a person's locus standi or
entitlement to be joined as a party to pro~eedingsB.~u t more usually rights
of appeal are exercised only when the decision-making process has concluded.
Supervisory jurisdictions, in contrast, are invoked not merely to contest the
validity and legality of final decisions, but also to compel the exercise of
jurisdiction wrongly disclaimed and the performance of duties incidental
to the exercise of decision-making powers, e.g. duties to accord natural
justice, and to restrain proceedings en route to final decision.
When an application is made for judicial review of conduct which a
person has engaged in, is engaging in or proposes to be engaged in for the
purposes of making a decision (to adapt the words of s. 6 of the Administrative
Decisions (Judicial Review) Act 1977), and that conduct could not
afford a ground for appeal until a final decision was made, the prospective
availability of an appeal can hardly be regarded as a satisfactory alternative
to judicial review and remedy. Indeed at the time at which application for
50 Deputy Commissioner of Patents v. Board of Control of Michigan Technological
University (1979) 28 A.L.R. 551; Re Hare & Commissioner of Superannuation
(1979) 2 A.L.D. 233; Re Loschiavo & Secretary Department of Housing &
Construction (1980) 2 A.L.D. 757.
51 See Administrative Appeals Tribunal Act 1975 (Cth), s. 44(2).
Judicial Review and Appeals as Alternative Remedies 3 1
judicial review is made, it may be that there is no accrued right to appeal at
all, It is not surprising then that when the conduct which is the subject of
complaint would vitiate any decision ultimately made, courts have not, in
the main, regarded the prospective availability of an appeal as an adequate
alternative to remedy by way of prohibition, injunction or mandamus.
Coercive judicial remedy must, presumptively, be more appropriate when
the applicant can establish a wrongful assumption of jurisdicti0n,5~ failure
to comply with mandatory procedural requirements, or a clear misdirection
on the questions to be decided or matters relevant to their determination
such that the final determination would be null and void.
Lord Denman C.J. summed up the desirability of preventive judicial
measures to restrain wrongful assumption of jurisdiction as follows:
"There is no reason for driving the subject to that expensive process [i.e.
appeal], to abide by the chance of repetition of error, which, if committed,
can, at last, be only rectified by prohibition, and may be so committed as
to be placed beyond the reach of even that remedy; or for compelling
him to submit even to that direct inconvenience arising from that decision
alone, if none lay beyond them."53
When prohibition is sought to prohibit an alleged exceeding of jurisdiction
by a superior court of limited jurisdiction, e.g. by the Federal Court of
Australia, the availability of an appeal by rehearing to a higher court, a
Full Court of the Federal Court, may, depending in part on the extent to
which the alleged excess of jurisdiction is controversial, dispose the
reviewing court towards refusal of remedy. If the presence or absence of
jurisdiction depends on determination of questions of fact, and the court
against which prohibition has sought has not, as yet, decided those questions
of fact, let alone decided whether it has jurisdiction, that circumstance may
lead the reviewing court to the conclusion that, quite apart from the
prospective availability of appeal, the application for prohibition is
premature." It was a circumstance to which some significance was attached
in R. v. Judges of Federal Court of Australia; Ex parte Western Australian
National Football League (Z~C.).~
In that case, application had been made to the High Court for prohibition
against judges of the Federal Court to prohibit proceedings brought under
the Trade Practices Act 1974. The writ was sought on the ground that the
defendant to the proceedings, the Football League, was not amenable
to the Federal Court's jurisdiction under the Act in that it was neither a
52 R. V. Wimbleton JJ.; Ex parte Derwent [I9531 1 Q.B. 380,389-90; R. v. Comptroller-
General of Patents & Designs; Ex parfe Parke Davis & Co. [I9531 2 W.L.R. 760;
Ex parte Mimna (1900) 16 W.N. (N.S.W.) 209.
53 Burder v. Varley (1840) 12 Ad. & E. 233, 263.
54 R. V. Judges of the Federal Court of Australia; Ex parte W.A. National Football
League (Inc.) (1979) 143 C.L.R. 190; R. v. Small Claims Tribunal; Ex parte
R.A.C.V. General Insurance Ply Ltd [I9811 V.R. 602.
55 (1979) 143 C.L.R. 190.
32 Monmh University Law Review [VOL9., SEPT.' 821
trading corporation nor a corporation engaged in inter-State trade. At the
time the writ was sought the Federal Court had yet to rule on the defendant's
objection to its jurisdiction. The High Court accepted that the Federal
Court had jurisdiction to rule on the objection though not conclusively.
Although opinions were expressed on whether the League was amenable
to the Federal Court's jurisdiction and the majority view was that it was,
three of the five Justices had reservations about the propriety of its intervention.
Mason and Jacobs JJ. thought that the High Court should have
the benefit of the Federal Court's findings, and that the existence of the
right to appeal to a Full Court of the Federal Court constituted "a persuasive
ground for refusing the writ as a matter of discretion."% Gibbs J. thought
that although the High Court's jurisdiction to review was not excluded by
the availability of an appeal, the application for prohibition was premat~re.~~
Barwick C.J., in contrast, thought that the availability of appeal was not
even relevant to the exercise of the High Court's di~cretionI.f ~t~h e Federal
Court proceeded to decision, its decision would not necessarily be appealed
against. If there were no appeal the Federal Court's ruling on the jurisdictional
issue might become a precedent followed in subsequent cases.
That in itself was reason enough for the High Court's intervention.
When the ground for seeking judicial review is that the respondent to the
application was under a duty to exercise jurisdictnon, and refused to perform
that duty, e.g. by wrongfully disclaiming juristliction, the existence of a
right to appeal against a determination that there is no such duty or no
jurisdiction, has rarely been regarded as an adequate alternative to judicial
remedy, more particularly, mandamus or an order having the same effect.5"
In such cases the adequacy of appeal as an alternative remedy must surely
depend largely on the nature of the appeal and status and powers of the
appellate body. Unless the appeal allows for an authoritative determination
of the jurisdictional issue and the appellate body is obliged to conduct a
de novo hearing and stands in the shoes of the primary decision-maker, the
right to appeal cannot be treated as a true substitute for the applicant's right
to a proper exercise of jurisdiction by the primary decision-maker.
The few cases in which courts have refused to make mandatory orders
to compel the exercise of a jurisdiction wrongfully declined have presented
peculiar features. In Ex parte JarretP the reasons why the court refused to
grant a writ of mandamus to compel justices to hear and determine an
application for custody, by reason of the existence of a right to appeal,
were, first that the justices had not disclaimed jurisdiction, but had merely
66 Id. 230, 237.
57 Id. 216.
68 Id. 204-6.
59 R. v. H. Beecham & Co.; Ex parte R. W. Cameron & Co. [I9101 V.R. 204; Ex
parte Newham (1923) 23 S.R. (N.S.W.) 231; Ex parte CofYs Harbour S.C.; Re
Allen (1957) 76 W.N. (N.S.W.) 103: Barham v. Stevenson [I9751 1 N.S.W.L.R.
31; cf. R. v.-Burchill & ;Salwaj; Ex parte Kretschmar [I9471 Q.S~.R2. 49.
60 (1946) 62 T.L.R. 230.
Judicial Review and Appeals as Alternative Remedies 3 3
adjourned the hearing of the application for some five months; and secondly
and more importantly, an appeal, if lodged, would be heard and decided by
a judge of the High Court of Justice practised in the exercise of a guardianship
jurisdiction. The appeal, one assumes, was by way of de novo hearing.
In McBeatty v. G~rrnanW,~ad~d ell J. refused to grant an order by way
of mandamus against a magistrate who had wrongfully declined to exercise
jurisdiction to hear and determine a complaint of breach of a New South
Wales industrial award. The magistrate's decision was appealable to the
State Industrial Commission. On the hearing of an appeal the Commission
had power to remit the case to a magistrate. The Commission also had
authority, by statute, to review its own decisions. Waddell J. considered
that here the remedy by way of appeal was as "convenient, beneficial and
effectual" a remedy as remedy by way of an order in the nature of mandamus.
Although he did not comment on the character of the appeal, one assumes
that he took it to be an appeal by way of de novo hearing. He thought it
significant that the judges of the Industrial Commission enjoyed the same
status as puisne judges of the Supreme Court. He noted that in providing
for appeals against magisterial orders and the Commission, the Parliament
had also declared that "no other proceedings in the nature of an appeal
from any such order or by prohibition shall be allowed".62 but since no
argument had been addressed to him on the effect of this privative clause,
he did not base his exercise of discretion upon it.
The High Court's refusal of mandamus against a judge of the Family
Court in R. v. Ross-Jones; Ex parte Bea~rnonti,n~ r espect of his determination
that he had no jurisdiction to hear and decide an application for
appointment of a receiver of a partnership, was also influenced by special
considerations. It was accepted that the respondent's decision was subject
to appeal to a Full Court of the Family Court as of right. Stephen, Jacobs
and Aickin JJ. thought this to be the preferable remedy.@ Gibbs, Stephen
and Aickin JJ. made it clear that, whatever the merits of the application,
it should be refused having regard to the fact that the Family Court judge's
ruling, disclaiming jurisdiction, had been made by consent, in order to raise
an issue for determination by the High Court.66 Nonetheless, the Court
proceeded to decide the jurisdictional question and found that the respondent
judge's disclaimer of jurisdiction was well founded.
The moral to be drawn from both the W.A. Football League case and
the Ross-Beaumont case is that, although in both the High Court did, in
exercise of its jurisdiction under s. 75 of the Constitution, decide the
substantive merits of the application for review and thereby made it
unnecessary for either party to the application to exercise the right to appeal
61 [I9751 2 N.S.W.L.R. 262.
Industrial Arbitration Act 1940 (N.S.W.), s. 120(4).
63 (1979) 141 C.L.R. 504.
Id. 513, 514, 517-8, 522.
a Id. 513, 522.
3 4 Monash University Law! Review [VOL9. , SEPT. '821
against a decision of the primary decision-maker, in future the Court expects
that those contesting the jurisdiction of superior courts of limited federal
jurisdiction, prior to final decision, should not resort to the High Court
until the respondent court has made an informed and deliberate decision
on the issue going to its own jurisdiction. I think it may also be inferred
that a significant number of serving High Court Judges will be reluctant to
embark upon those inquiries which are necessary to decide issues concerning
the jurisdiction of superior courts of limited federal jurisdiction which turn
on questions of fact, in advance of reception of evidence germane to proof
of the relevant facts by the primary court, in advance of adjudication by
the primary court of the preliminary jurisdictianal issue with regard to that
evidence, and before resort to the established appellate court machinery,
including that which allows a single judge to refer a question of law for
determination by a Full Court.
(b) Judicial review after %a1 decision
The choice between resort to judicial review in a supervisory jurisdiction
and resort to a right of appeal will normally be made when the prospective
respondent has proceeded to make a final decision and has made it clear
that he regards himself or itself functus o@cio. The applicant's choice of
forum, if an informed choice, is likely to depend very much on the ground
or grounds upon which he principally relies in protesting the decision subject
to review and appeal, and whether a judicial determination would serve his
interests better than an appeal. If, for example, he complains of a decision
to revoke his occupational licence and his main ground for contesting that
decision is that there was no basis whatsoever on which that decision could
be taken, he may think it preferable to have the matter resolved authoritatively
by a superior court of law rather than by, say, an administrative
appeals tribunal whose decisions are themselves subject to supervisory
judicial review. If, on the other hand, his complaint concerns the procedure
by which the decision was reached, and the alleged procedural defects
could be overcome upon an appeal by way of de novo hearing, he might
consider it preferable to appeal. A successful application for judicial review
could, after all, result in no more than an order to quash the decision
reached in violation of mandatory procedures and a redetermination of the
matter by the primary decision-maker.
When application has been made for judicial review on the ground that
the respondent had no jurisdiction whatsoever in the cause, the courts have
seldom declined remedy merely because the decision is subject to appeal.%
66 R. V. Skinner (1870) 1 A.J.R. 151; R. v. Postmaster-General; Ex parte Carmichael
[I9281 1 K.B. 291; R. v. Galvin; Ex parte Metal Trades Employees' Association
(1949) 77 C.L.R. 432; R. v. District Court, Brisbane; Ex parfe Allen [I9691 Qd.R.
114; R. v. Johns; Ex parte Public Service Association of South Australia Znc. [I9711
S.A.S.R. 206, 209-11; Re Canadian Pacific Transport Ltd v. Loomes Courier
Services Ltd (1976) 72 D.L.R. 3d 434; R. v. Cook; Ex parte Twigg (1980) 54
A.L.J.R. 515.
Judicial Review and Appeals as Alternative Remedies 3 5
In most cases, it seems not to have been considered material that the appeal
lies to a court rather than to an administrative tribunal, but in R. v.
Potsmaster-General; Ex parte Carmi~haetlh~e~ st atus of the appellate body
and the nature of the appeal were thought to be relevant. In that case
application had been made to quash a medical certificate which had been
issued in purported exercise of authority conferred by workers' compensation
legislation. There was a statutory right to appeal against the certification to
a medical referee. The applicant for review claimed that the person who
had issued the certificate was not a person having the requisite authority to
certify. Avory J. upheld this contention and awarded certiorari despite the
right to appeal. On appeal, he pointed out, the correctness of the certificate
on medical grounds could be brought into question, but not its validity on
legal grounds.
In R. v. Cook; Ex parte Twiggfis the High Court of Australia granted
certiorari to quash a conviction for contempt entered by a judge of the
Family Court, on the ground of want of jurisdiction, notwithstanding that
the applicant might have appealed to a Full Court of the Family Court. But
Murphy and Wilson JJ. indicated that in future, they would be less favourably
disposed towards grant of judicial relief where there was a right to
appeal from court to court.69 "It may become appropriate in a future case7',
Wilson J. observed, "to withhold relief, on discretionary grounds in order
to encourage aggrieved persons to pursue their remedy in the proper
forum."70
Absence of jurisdiction to make the decision which is the subject of complaint
may arise not because the decision-maker had no authority to entertain
the cause, but rather because he had no authority to make a decision of the
kind he made, e.g. to grant a planning permit on conditions which are
claimed to be impermissible. Once again the courts have rarely declined
relief merely because of the availability of an appeal whether it be to a
court or to another b0dy.n If, as in R. v. Hillingdon B.C.; Ex parte ROYCO
the appeal lies to a person or body which is ill-equipped to make
determinations on questions of validity, there are obvious advantages in
proceeding direct to a superior court of supervisory jurisdiction to settle the
matter conclusively. Current indications are that the Federal Court of
Australia will not be slow to exercise its supervisory jurisdiction under the
Administrative Decisions {Judicial Review) Act 1977 when the subject of
67 119281 1 K.B. 291.
e8 (1980) 54 A.L.J.R. 515. * Id. 521,523.
wi Id. 523. * R. v. Brisbane IJ.; Ex parte Queensland Treasurer (1901) 11 Q.L.J. 77; R. V.
Licensing Court for Western District; Ex parte Francis 119291 S.A.S.R. 140, 148;
R. v. Paddington Valuation Oficer; Ex parte Peachey Property Corporation Ltd
[I9661 1 Q.B. 380; R. v. Hillington B.C.; Ex parte Royco Homes Ltd [I9741 1
Q.B. 720.
72 [I9741 1 Q.B. 720.
3 6 Monash University Law Review [VOL.9 , SEPT.' 821
complaint is an alleged error of law and the body to which appeal lies is
not invested with any part of the judicial power of the Commonwealth and
cannot therefore make any binding determination on questions of
Possibly different considerations apply where appeal lies from an inferior
court to a superior court and the alleged excess of jurisdiction can be raised
and dealt with on appeal. The majority of the South Australian Supreme
Court apparently thought so when in R. v. Elliott; Ex parte Elliott74 they
declined to grant certiorari to quash convictions which were appealable to
that Court.
Administrative appeals tribunals which are not courts of law may consist
of or include legally qualified members, but it is doubtful whether Australian
courts would now attach much significance to the legal qualifications of the
tribunal members in determining the adequacy of the right to appeal as an
alternative to judicial review on a jurisdictional question. Cases such as R. v.
Comptroller-General of Patents; Ex parte Munz7" and Re Wingate's Patent76
in which the availability of appeal to a Law Officer was advanced as the
reason for denying judicial remedy in a supervisory jurisdiction, should not
therefore be regarded as accurate guides to current judicial thinking.
The jurisdictional errors which are grounds for the grant of judicial
remedy in a supervisory jurisdiction include not merely unauthorized
assumptions of jurisdiction, but also constructive failures to perform a duty
to exercise a jurisdiction according to law. In such cases the decision-maker
has purported to make a decision in exercise of his or its jurisdiction but
has fallen into the error of deciding with regard to irrelevant considerations,
or in disregard of considerations he was legally obliged to take into account,
or by application of an inflexible policy, or as dictated to by an unauthorized
person, or in consequence of having applied the wrong test. When errors of
this kind are alleged, judicial intervention is often sought with the object of
compelling the decision-maker to redetermine according to law, or of
obtaining a declaration of invalidity which may prompt a redetermination
without legal coercion.
The fact that an applicant for judicial review may appeal against
decisions which proceed from such errors and on appeal is entitled to a
de novo hearing is no absolute bar to the grant of judicial remedy. In R. v.
Stepney Corporation,77 the court concluded that the availability of an appeal
to the Treasury against a decision regarding the compensation payable to
an office holder whose office had been abolished, was not an adequate
alternative to mandamus when the decision-maker had not really exercised
its discretion, but had rather followed a practice of another body in the
73 Kelly v. Coats (1981) 35 A.L.R. 93: Graham v. Commissioner of Sunerannuation
Judicial Review and Appeals as Alternative Remedies
mistaken belief that it was bound by that practice. In R. v. Shire of Perth;
Ex parte Dewar & B~rridge:t~h e Western Australian Full Court concluded
that an appeal to the Minister against the local authority's refusal of a
planning permit was not an adequate substitute for mandamus when it was
alleged that the decision had been based on irrelevant considerations. The
Minister's appellate jurisdiction was not, it was thought, designed for
investigation of questions of detail of the kind which are raised when the
relevance of considerations taken into account by planning authorities is
disputed. In any event, the Minister should not, Jackson J. thought, be
expected to decide questions of law or jurisdiction.
In Marks v. Swan Hill Shire Council," Norris J. concluded that he
should not decline to grant a declaration that the Council had erred in its
decision not to grant the plaintiff a permit merely because the plaintiff could
have appealed to the County Court or even because appeal would have
been a cheaper and more expeditious remedy than a suit for a declaration.
In his view, it was enough that the plaintiff had established that the defendant
Council had decided on the basis of an illegitimate policy.
Notwithstanding that the relevance of considerations taken into account
in the making of decisions and the legitimacy of the policy or guidelines
applied by the decision-maker do raise legal questions going to the validity
of the decision, courts of supervisory jurisdiction have, on a number of
occasions, forced applicants for judicial review to utilize their rights to
appeal to tribunals on the ground that the tribunal in question can traverse
all the issues raised in the application for review and that it possesses an
expertise which the court does not. Nearly all of these cases have been ones
to do with the administration of land planning legislation and have also
been ones in which the applicant for review sought mandamus to compel
the primary decision-maker to redetermine his application according to law.
When in Tooth & Co. Ltd v. Parramatta City Councilm the High Court
refused special leave to appeal against a decision of the Supreme Court of
New South Wales to refuse mandamus against the Council to compel issue
of a planning application, or reconsideration of it, the Court made it plain
that although the appeals provisions had not ousted the Supreme Court's
supervisory jurisdiction, those provisions were of a kind which gave the
applicant for the permit a more appropriate and suitable remedy than that
the Supreme Court could give. The legislature had appointed remedies by
way of appeal, to the Land and Valuation Court and in some cases to the
Minister, which were obviously intended to embrace reviews on the grounds
relied upon by the applicant for judicial review in the instant case. Dixon C.J.,
who dealt most fully with the discretionary point, reasoned from the premise
78 119681 W.A.R. 149, 155.
79 [I9741 V.R. 896.
80 (1955) 97 C.L.R.4 92.
3 8 Monash University Law Review [VOL9. , SEPT.' 821
that mandamus is to be regarded as an extraordinary remedy. He argues
thus:
"Where the legislature has provided Cor the very description of case a
remedy designed as appropriate and adequate, a court should be careful
that mandamus is not used to avoid recourse to the remedy or as a
substitute for it. The general rule is that the court exercises its discretion
against granting a writ of mandamus where a remedy is provided by way
of appeal or the like which is equally convenient, beneficial and effective.
If the writ of mandamus does not provide the party with a more
convenient and better remedy, the court, in such a case, leaves the party
with that which has been pro~ided."~~
In a series of subsequent cases the New South Wales Supreme Court
declined to award mandamus against local planning authorities in respect
of their decisions to refuse application for planning permits, partly or wholly
on thc ground that the statutory provisions for appeals against such refusals
enabled the dissatisfied applicant to obtain review by an expert tribunal
exercising original jurisdicti~nI.~n ~o ne, Ex parte Australian Property Units
Management (No. 2 ) Ltd; Re Baulkham Hills Shire C~uncilS,u~g arman J . ,
taking his cue from Dixon C.J.'s observations in Tooth's case, expressed
the view that mandamus was not an appropriate remedy when there is a
statutory right to appeal against a decision allegedly based on illegitimate
principles and
"where the matter for decision by the subordinate or local body being of
an administrative rather than a judicial character, the appeal from its
decision lies to the superior or central authority which is vested with
authority and power to define and enforce the administrative policies in
accordance with which decisions are to be gi~en."~
It is plain that in that particular case the Supreme Court was not persuaded
that there was much substance in the applicant's claim to a remedy
on jurisdictional grounds. In that respect the case can be distinguished
from the subsequent case of Salrnar Holdings Ply Ltd v. Hornsby Shire
Councila in which a declaration was sought on the validity of a decision of
a Council that an application for a planning permit be refused. It was
alleged that the Council had erred in supposing that the permit sought
could not be granted in that the land development proposed by the applicant
would infringe an overriding proclamation. It was conceded by the New
South Wales Court of Appeal that the plaintiff could have appealed to a
Board of Appeal, which, in its turn might state a case for determination by
81 Id. 498.
82 Ex parte Arnold Homes Pty Ltd; Re Blacktown M.C. [I9631 N.S.W.R. 806; Ex
parte Australian Property Units Management (No. 2) Ltd; Re Baulkham Hills S.C.
[I9631 N.S.W.R. 787, 804-5; Ex parte Catlett Constructions Pty Ltd; Re Baulkham
Hills S.C. [1964-51 N.S.W.R. 1667. See also R. v. Port of London Authority; Ex
parte Kynoch [I9191 1 K.B. 176, 186, 187-8.
83 [I9631 N.S.W.R. 787.
s-2 Id. 796.
sij [I9711 1 N.S.W.L.R. 192.
Judicial Review and Appeals as Alternative Remedies 39
the Land and Valuation Court, whose decision would not be subject to
further appeal. Mason J.A., as he then was, acknowledged that the Court
should be slow to intervene when a court or tribunal having "special
capacity or experience" had jurisdiction to adjudicate an appeal on grounds
relied upon in the application for judicial review.% But he justified judicial
intervention in this case because the question raised by the suitor was one
of general importance - meaning presumably one the disposition of which
affected applications of others besides the plaintiff - and because, if the
plaintiff did appeal to a Board of Appeal, there might be further appeal to
the Land and Valuation Court, and in consequence delay in the reaching
of a final, authoritative decision. Moffitt J.A. agreed.87
When the ground for challenging the validity of a decision is that the
decision was made in breach of a duty to accord natural justice, a right to
appeal against the decision cannot be regarded as an adequate alternative
remedy unless the hearing on appeal is capable of correcting the deficiency
in the proceedings at first instance. Normally the party to whom natural
justice has been denied could not hope for rectification of his grievance on
appeal unless the appeal is by way of a de novo hearing. Appeal by way of
rehearing on the evidence received by the primary decision-maker or appeal
by case stated cannot repair the wrong done to the complainant, for the fact
that he has not had a fair hearing at first instance may mean that the
evidence received does not include evidence which was relevant to the
matter to be decided and which he was entitled to have con~idered.~~
There is no absolute rule that if an applicant for judicial review is
entitled to a full and fair hearing on appeal, he is not entitled to judicial
remedy in respect of a decision which proceeded from a breach of natural
justice at first instance, whether the remedy be certiorari to quash, an
injunction or prohibition to restrain implementation of the decision or a
mere declaration of right. There will be many cases in which the applicant
for judicial review will have chosen the judicial forum advisedly in order to
establish the very existence of his right to natural justice and the nature of
that right - whether, for example, he was entitled to be granted a request
for an adjournment or to inspect certain documents.
Some judges have taken the view that even if a person to whom natural
justice has been denied is entitled to a de novo hearing on appeal, appeal is
not as appropriate a remedy as a judicial remedy. In R. v. North; Ex parte
O~keyA,tk~in L.J. expressed the view that where an excess of jurisdiction
"is based upon the breach of a fundamental principle of justice", the
availability of an appeal could not be regarded as a bar to judicial relief. In
86 Id. 204.
87 Id. 206.
88 R. v. Chairman of General Sessions at Hamilton; Ex parte Atterby 119591 V.R.
800, 806; R. v. Spalding (1955) 5 D.L.R. (2d) 374, 377, 383-4.
89 [I9271 1 K.B. 491, 506.
40 Monash University Law Review [VOL9. , SEPT.' 821
R. v. Agents Board of A.C.T.; Ex parte Greene,w Fox J . queried whether
he even had a discretion to deny certiorari to an applicant who had not
received a full and proper hearing at first instance. Her right to a rehearing
on appeal to the court could not be regarded as a complete substitute for a
fair hearing by the Boardsg1
There have been some cases in which certiorari to quash decisions reached
in breach of a duty to accord natural justice has been refused, but in many
of these the applicant had already lodged an appeal - usually to a court -
and this was thought to be fatal." In Rozander v. Energy Resources
Conservation Board93 the Appellate Division of the Supreme Court of
Alberta declined to grant certiorari to quash a decision based on an alleged
breach of natural justice on the ground that the decision could be impeached
on appeal to a court. Its view was that if the error complained of could be
examined on appeal and if the appellate body could quash the decision
appealed against, as it could in this instance, certiorari should not be
granted. It is important to note that the statutory right of appeal which was
available in this case was to a superior court and that review on appeal was
supervisory in character, being limited to queslions of law and jurisdiction.
It seems to have been assumed that on appeal the court's inquiry would be
confined to matters appearing on the record. 111at being so it would not be
proper to refuse certiorari when the error complained of was not disclosed
on the record, e.g. when the applicant for review alleged bias or that
evidence had been improperly obtained and acted upon.
In Herelkin v. University of ReginaM the Supreme Court of Canada
upheld a decision that a university student who complained that he had
been expelled from his university without a fair hearing should not be
granted certiorari or mandamus. The student had not availed himself of his
rights to appeal to the university's appeal tribunal which was, the Court
believed, capable of giving the student an entirely new hearing. But in any
event, the Court considered that if natural justice had been denied, the
decision to expel the student was not void, but merely voidable.
The decided cases on the exercise of the judicial discretion to refuse
remedy because of the availability of an appeal have, in the main, been
cases in which the error complained of would now be characterized as
(1970) 15 F.L.R. 306,313.
M See also Cooper v. Wilson 119371 2 K.B. 309, 321, 358; R. v. Wandsworth JJ.; EX
parte Read [I9421 1 K.B. 281, 284; Lawlor v. Union of Post Ofice Workers [I9651
Ch. 712. In Hook v. Registrar of Liquor Licences (1981) 35 A.C.T.R. 1 at 5
it was said that in an appeal by way of de novo hearing, a breach of natural justice
was not itself a ground for setting aside the decision at first instance.
92 R. v. Barnes; Ex parte Vernon (1910) 102 L.T. 860; R. v. Pereira; Ex parte Khotoo
Bawiab [I9491 W.N. 96; R. v. Alberta Law Society; Ex parte Demco (1967) 64
D.L.R. (2d) 140; Jain v. North & West Vancouirer Hospital Society (1974) 43
D.L.R. (3d) 291; R. v. Calvin; Ex parte Bowditch (1979) 2 N.T.R. 9; Commissioner
of Police v. Gordon [I9811 1 N.S.W.L.R. 675. See at pp. 44-45 below.
93 (1979) 93 D.L.R. (3d) 271.
94 [I9791 3 W.W.R. 676.
Judicial Review and Appeals as Alternative Remedies 4 1
errors going to jurisdiction. (Whether they would have been so regarded
by the court which exercised the discretion is not always made clear.)
CJearly the existence of a right to appeal either generally or on questions
of law, does not oust a court's jurisdiction to grant certiorari for non
jurisdictional error of law appearing on the face of the record. But it might
be argued that if the only ground on which the applicant for judicial review
can sustain his application is that a non-jurisdictional error of law has been
committed, and that error can be corrected on appeal, the appeal should
normally be regarded as a suitable alternative.
In the exercise of its statutory discretion under s. 10 of the Administrative
Decisions (Judicial Review) Act 1977 to refuse remedy on the alternative
remedy ground, the Federal Court of Australia has not so far discriminated
between jurisdictional and non jurisdictional errors of law. Since its
supervisory jurisdiction under that Act enables it to review for error of law
regardless of whether the error appears on the face of the record,% the
jurisdictional or non-jurisdictional character of the error complained of is
not likely to figure prominently in the Court's deliberations. In the few
cases in which the discretion conferred by s. 10 has been considered, the
Court's attention has been directed more to the desirability of judicial
determination of the question or questions of law raised in the application
for review before it.
In Kelly v. Coats,96 Toohey J. dealt with the request that he exercise his
discretion under s. lO(2) (b) (ii) adversely to the applicant (who had
already lodged a notice of appeal to the Repatriation Commission against
a Repatriation Board's refusal of her application for a pension) as a
preliminary point. He rejected the argument that when the applicant does
have a right to appeal, the circumstances must be exceptional before the
Court "should embark on the hearing of an application. Rather the onus
is on those seeking to persuade the court that it should not exercise the
jurisdiction conferred upon it by the legi~lature."~H~av ing heard the
respondent's objections to the Court's entertaining the application for review
of the Board's decision, Toohey J. concluded: "Assuming that the applicant's
complaint is truly one of error of law, the present application is likely to be
a more expeditious way of disposing of the matter than the procedures to
be found in the Repatriation Ac~.''~S
The desirability of a speedy, authoritative determination also weighed
heavily in the decision of Fox A.C.J. in Graham v. Commissioner of
Superannuationm to proceed to hearing of an application for review
notwithstanding that the applicant had another avenue for redress under
" s. 5(l)(f); s.6(l)(f).
~3 (1981) 35 A.L.R. 93.
97 Id. 94.
98 Id. 95.
9Q (1981) 3 A.L.N. [52] N87; cf. Re London Gardens Ltd and Township of Westminster
(1976) 9 O.R. (2nd) 175.
42 Monash University Law Review [VOL9. , SEPT. '821
the Superannuation Act 1976 and thereafter to the Administrative Appeals
Tribunal. The application related to a decision by the Commissioner that
he had no power to grant the particular request the applicant had made. In
exercising the discretion conferred by s. 10, Fox A.C.J. suggested: "The
main consideration . . . is what is best to be done in the interests of the
parties and the public interest and with a view to saving cost and time
and reaching as soon as possible a finality of decision." The question raised
for determination in the application for review was the proper construction
to be placed on s. 119 of the Superannuation Act, a question of law. "If
the matter were not dealt wtih by this Court she [the applicant] could seek
reconsideration by the Commissioner and then go to the Administrative
Appeals Tribunal and if the question of law was still decided adversely to
her she might then have to come back to a Full Bench of this Court." That
being so, Fox A.C.J. concluded, it seemed plain that it was "in the best
interests of everyone that this Court should deal with the question of law."
Although neither Toohey J. nor Fox A.C.J. mentioned the point, both,
presumably, were mindful of the inability of the administrative review
tribunals to make an authoritative determination of a question of law. If
the appellate jurisdiction has been reposed in a court of law, and particularly
in a superior court of law such as a State or Territory Supreme Court,
subject to appeal, by special leave, to a Full Court of the Federal Court of
Australia, then it may well be that the Federal Court will be much less
ready to undertake review of an application, notwithstanding that it
concerns a decision which is clearly a decision reviewable by it under the
Administrative Decisions (Judicial Review) Act 1977, and notwithstanding
that the application could be referred to a Full Court.
If, therefore, application is made for review of an administrative decision
of the Commissioner of Patents, and the application relates to a decision
which is also appealable to the Supreme Court which is a prescribed court
within the meaning of the Patents Act 1952, whose decision on appeal
would be subject to further appeal, under s. 148 of that Act, to the Federal
Court or the High Court, with leave, the Federal Court might well decline
to exercise its supervisory jurisdiction. Whether it would be proper for it to
take this course if the respondent Commissioner did not resist the hearing
and determination of the application for review, is debateable. If the matter
in dispute is pre-eminently a question of law, it could be that both parties
would prefer that it be determined immediately by a Full Court of the
Federal Court, upon reference by a single judge of that Court, rather than
incidentally in the course of an appeal to a prescribed court, and then on
further appeal, by leave, to the Federal Court.
In a case such as this, there is no reason why the Federal Court should
not raise the availability of an appeal of its own motion and request the
parties to address argument on the question of why the Court should
entertain the application. But in the end, the fundamental issue to be
Judicial Review and Appeals as Alternative Remedies 43
decided by the Court would be: given that the Court does have jurisdiction
and given that the parties agree that it is a convenient forum, should the
Court decline to exercise its jurisdiction?
(c) Judicial review when appeal is pending
A person who has made application for judicial review may, in order to
safeguard his position, have also lodged an appeal which has yet to be
determined. The fact that an appeal initiated by him is pending cannot be
an automatic bar to the award of judicial remedy for the matter in respect
of which he seeks that remedy may not be one he can raise in his appeallDO
or a matter on which the appellate body can make an authoritative ruling.
In several cases courts have refused to grant certiorari to quash convictions
alleged to be invalid for breach of the rules of natural justice, on the
ground that an appeal against the conviction was pending?O1 In one case
the court gave as a further reason the fact that if the applicant did succeed
in having his conviction set aside on appeal, certiorari would be useless.lo2
But in McCarthy v. GrantlQ3t he fact that an appeal against conviction was
pending was not regarded as a sufficient reason for refusing certiorari to
quash when the applicant had not been afforded a fair hearing. Appeal was
not, it was said, an appropriate remedy where manifest injustice had been
done.
Whether or not the fact that the applicant has chosen to appeal and that
his appeal is still pending is a good reason to refuse him judicial remedy
must depend on the status of the appellate body, the nature of the appeal
and the ground or grounds on which remedy is sought. In R. v. SpaldinglW
the court issued certiorari to quash a deportation order on the ground that
the applicant had not been afforded a fair hearing, despite the fact that the
applicant had lodged an appeal to the Minister. The appeal was not regarded
as a satisfactory alternative remedy, for the Minister's review would be
confined to an examination of documentary material and there was no
assurance of an oral hearing or legal representation. Similarly, in Anderton
v. Auckland City CounciPW Mahon J . concluded that a decision of the
council which was rendered invalid because of actual bias was "not cured
by the existence of a right of appeal by way of rehearing" to the Town and
Country Planning Appeal Board?OG The Board's jurisdiction was an appellate
jurisdiction rather than an original jurisdiction to conduct a de novo
hearing. That an appeal to the Board had been lodged was relevant to the
exercise of the judicial discretion, but Mahon J. was "not persuaded that any
decision vitiated by actual bias should as a matter of discretion be allowed
(1974) 43 D.L.R. (3d) 291.
See fn. 92 above.
(1910) 102 L.T. 860.
[I9591 N.Z.L.R. 1014.
(1955) 5 D.L.R. (2d) 374.
[I9781 1 N.Z.L.R. 657.
Id. 700.
44 Monash University Law Review [VOL. 9, SEPT. '821
to stand."lm In R. v. Moylan; Ex parte Jenkinslm a fireman who complained
that disciplinary measures taken against him had been taken in breach of
the rule against bias succeeded in his application for certiorari despite the
fact that he had lodged an appeal to an appeals board. A consideration
which the Court took into account was that, on the appeal, the appellant
would bear the onus of establishing that the decision appealed against was
wrong.
In Vowel1 v. Shire of HastingslW Crockett J. regarded the fact that the
plaints had appealed to the Town Planning Appeals Board against the
grant of a planning permit to another person as having little bearing on the
exercise of his discretion to refuse a declaration in respect of the validity
of the grant of the permit. This was yet another case in which the ground
for seeking judicial review was breach of an obligation to accord natural
justice. Crockett J. noted that it had been necessary for the plaintiff to lodge
an appeal to the Board to preserve his rights, and to guard against the
possibility that the court might not find in his favour. He also had regard
to the fact that determination of the appeal might take some time and that
the Board might be reluctant to proceed to a determination whilst the
validity of the decision appealed against was under review by the Supreme
C0urt?l0
The New South Wales Court of Appeal has shown itself to be much less
sympathetically disposed towards applications for judicial review of decisions
alleged to have been made in breach of a duty to accord natural justice
whilst appeals against those decisions are pending and the appeal allows for
a de novo hearing on the merits. In Commissioner of Police v. Gordon1=
the Court upheld an appeal against an order in the nature of certiorari
quashing the suspension and dismissal of the respondent police officer,
principally on the ground that the legislative code governing suspension
and dismissal of police officers was exhaustive and did not permit an
implication to be drawn that, in the circumstances of the particular case,
the Commissioner was under any duty to the respondent officer to afford
him a hearing before taking action against him. But the Court was also
moved by the consideration that the officer had exercised his'right to appeal
to the Crown Employees Appeals Board, a body presided over by a judge,
and bound to conduct a de novo hearing on the merits, and that this appeal
was still pending. The "existence and continuance of the proceedings before
the board", it was said, "provided compelling ground for the court to
decline to intervene.. . The court has always and properly shown reluctance
lm Ibid.
108 119741 W.A.R. 176.
109 [I9701 V.R. 764.
110 Id. 765-7. The fact that an application for judicial review was pending would not
have deprived the Board of jurisdiction: see Slipper Island Resort Ltd v. Number
One Town di: Country Planning Appeal Board [I9811 1 N.Z.L.R. 143, 145.
[I9811 1 N.S.W.L.R. 675.
Judicial Review and Appeals as Alternative Remedies 45
to exercise this discretionary jurisdiction where there are available, and on
foot proceedings before a tribunal, particularly if presided over by a judge
which is invested with power exercisable judicially to determine the subject
matter of the dispute on the merits."l12 The instant case, Moffitt P. went on
to say, appeared
"to be another example of . . . one, where complaints, based on the
principles of natural justice, that an opportunity to be heard, only in
some limited way on the merits are pursued at length and with delay,
while an opportunity to have a substantive investigation on the merits is
spurned or postponed. In this way technicality based on not being heard
in some limited way on the merits is preferred to being heard on the
merits. In the present case, almost at the moment when the merits of an
allegedly unjust dismissal was to be investigated by an independent
tribunal, the opportunity to do so was set aside in favour, not of a
vindication of the respondent on the merits, but in favour of a technical
approach to the act of dismissal which would leave the merits either
unresolved or postponed."l13
Were the respondent officer to have succeeded in his application for
judicial review, Moffitt P. pointed out,l14 "the consequence would only be
that the particular decision of dismissal would be invalidated, leaving it
open to the Commissioner, if he thought fit and after consideration of the
written submissions, again to decide to dismiss him. In this event any
challenge to this decision would have to be by way of a fresh appeal."
Further the judicial proceedings "would not determine whether the respondent
ought to remain a member of the police force but the appeal would." It was
in the public interest that this question be decided and decided promptly.
The observations made by the Court of Appeal in Gordon's case are
obviously addressed only to those cases in which, regardless of whether the
applicant for judicial review had a right to a fair hearing at first instance,
a fair hearing could be had on appeal to an independent tribunal authorized
to conduct a de novo hearing on the merits and capable of curing any
procedural defects in the proceedings below. Whilst it may be that the Court
of Appeal failed to give sufficient weight to the consideration that when the
obligation of the primary decision-maker to accord natural justice is in
dispute, it may be resolved by a court of law, it is clear that its observations
have little relevance in those cases in which the matter raised for judicial
determination is a question of law which the appellate tribunal could not
decide finally and conclusively.
The desirability of an early authoritative determination of a disputed
question of law has been accepted in a number of cases as a sufficient reason
for judicial intervention notwithstanding the pendency of an appeal in which
that question can or might be raised. If the appellate body cannot resolve
Id. 690.
113 Ibid.
1'4 Id. 689-90.
46 Monash University Law Review [VOL9. , SEPT.' 821
the question authoritatively, or if its decision on it would be subject to
further appeal, or if there is any doubt about the competency of the appellate
body to decide the issue at all, then the more likely it is that the court will
assert its jurisdiction.l15
If an appeal is pending it need not necessarily be one which the applicant
for judicial review initiated. He may be respondent to the appeal, and his
application for judicial review may be designed to secure an authoritative
ruling on an issue to be raised by the appellant in the appeal. Sutherland
Shire Council v. Leyendekkersu6 was such a case.
The Council sued for a declaration that the rate it had struck in relation
to Leyendekkers' land was valid. The validity of' the rate had been called
into question by Leyendekkers in an appeal pending before a Court of Petty
Sessions. He alleged that the rate was invalid in that the Council had failed
to comply with certain requirements regarding tlie service of notices. The
Council proposed to contest the jurisdiction of the Court of Petty Sessions
to rule on the validity of the rate, and if that Court assumed jurisdiction, it
would exercise its right to appeal to the Supreme Court. Street J. perceived
that if there were a contest over the very jurisdiction of the lower court to
determine the validity of the rate, months could elapse before the validity
of the rate was finally determined. The issue was one which needed to be
settled, authoritatively without delay. That was a reason sdcient to justify
the Supreme Court's entertaining of the Council's suit.l17
(d) Judicial review after appeal
It is not unknown for persons who are aggrieved by decisions made at
first instance to exercise their rights of appeal and then, being dissatisfied
with the result of appeal, to institute proceedings in a court of supervisory
jurisdiction to contest the decision on appeal, or the decision at first instance,
or both. I shall be concerned here only with those applications for judicial
review which impugn the validity of decisions made at first instance, despite
the fact that those decisions have already been the subject of an unsuccessful
appeal by the applicant for review.
The applicant who has appealed, without success, before instituting his
application for judicial review of the decision appealed against, may
sometimes have disqualified himself from obtaining judicial remedy by
reason of his delay in seeking that remedy. But the fact that he has appealed
is no necessary bar to the exercise of supervisory jurisdiction. Assuming
that he does have cause to complain about the validity of the decision of
the primary decision-maker, the readiness of a court of supervisory jurisdiction
to entertain his application for review and grant remedy is likely to
116 Edmonton Catholic South District Trustee Board v. Edmonton (1971) 75 D.L.R.
(3d) 443; Kelly v. Coats (1981) 35 A.L.R. 93; Sutherland S.C. v. Leyendekkers
[I9701 1 N.S.W.R. 356, 366-7.
116 119701 1 N.S.W.R. 356.
117 Id. 366-7.
Judicial Review and Appeals as Alternative Remedies 47
depend on several factors: the ground which he advances for seeking
judicial remedy; whether it was a ground which could have been raised
and determined on appeal and if so whether it was raised or should have
been raised; the status of the appellate body; and whether the alleged defect
in the original decision was cured upon appeal.
If the appeal was against an administrative decision and was heard and
determined by an administrative appeals tribunal, without the benefit of
legal representation or advice, it is conceivable that the unsuccessful
appellant will not have become aware of the possibility that the original
decision was defective and that that defect was not cured by the appeal,
until the result of the appeal is made known and he then solicits legal advice.
It seems likely that this is what occurred in Barnard v. Dock Labour
Boardm and in Fermanis Investments Ltd v. City of Perth.llg In Barnard's
case a dock-worker who had been suspended appealed without success
against his suspension to a special tribunal. He then sought a declaration
that the decision to suspend him was null and void on the ground that it
was made by a person to whom the Board had delegated its authority to
suspend, but invalidly. The validity of the suspension was not raised before
the appeal body. Even so the court granted the declaration sought. Denning
L.J., as he then was, considered that the fact that an appeal had been made
and decided was irrelevant. Once the original decision to suspend was found
to be a nullity, the order of the appeal tribunal was also a nullity. That
tribunal had "no original jurisdiction of its own". It could not "itself make
a suspension order". It could "only affirm or disaffirm a suspension order
which . . . [had] already been In Fermanis Investments the court
entertained a suit for and granted a declaration that a notice given by the
Council ordering the plaintiff to demolish certain premises was invalid, in
that the Council had failed to comply with procedural requirements. The
plaintiff had already appealed without success to referees and had not, in
that appeal, contested the validity of the order. That he had not done so did
not, in the Court's opinion, disentitle him to judicial remedy.
When the applicant for judicial review seeks judicial remedy on the
ground that the primary decision-maker had no jurisdiction at all to deal
with the case before him, but it was the applicant who himself invoked the
jurisdiction, and subsequently appealed against the primary decision, it is
unlikely that judicial remedy will be forthcoming.l= But if the proceedings
which led to the primary decision were set in motion by another person,
then although the applicant for review appealed against the decision, without
objecting to the jurisdiction of either of the appeal body or the primary
decision-maker, it may still be possible for the jurisdictional question to be
"8 [I9531 2 K.B. 18.
+19 [I9781 W.A.R. 33.
1'0 119531 2 K.B. 18.42-3.
121 i3.x p&te ~herlock(1 899) 16 W.N. (N.S.W.) 94.
48 Monash University Law Review [VOL. 9, SEPT. '821
dealt with on an application for judicial review. Ex parte Fitzgerald; Re
Gordonm was such a case. There certiorari was granted to quash a
conviction notwithstanding that the applicant had not, on his appeal to
Quarter Sessions, queried the magistrate's jurisdiction to hear and determine
the case. In contrast in R. v. Wasley; Ex parte Fr~nkel,*a~n applicant was
denied a writ of prohibition against a Court of General Sessions in respect
of the order it had made for the payment of mclneys by a husband to his
wife. It was claimed that the Court had no jurisdiction to make the order.
But the question of jurisdiction had not been raised before the Court; nor
had it been raised upon a case stated before the Supreme Court. Having
regard to the fact that the order was regular on its face and the fact that
no objection to the jurisdiction to make it had been taken in the prior
proceedings, the Supreme Court of Victoria concluded that prohibition
should not be awarded.
There have in the past been cases in which an applicant for judicial
review, having appealed, without success, against a decision adverse to him,
has sought to impugn the validity of the initial decision on the ground
that it was made in breach of the principles of natural justice. Judicial
approaches to cases of this kind have not been entirely consistent,= but
the approach which is now emerging as the favoured approach is as follows.
If the appellate body did have jurisdiction to hear and determine an appeal
against a decision made in violation of a duty to accord natural justice, and
in determining the appeal it afforded the applicant the fair hearing denied
to him at first instance, the fair hearing on appeal will be treated as curing
the breach of natural justice at first instance such that the applicant cannot
thereafter impugn the validity of the decision made on that occasion and
aftirmed on appeal. Whether the denial of natural justice at first instance
can be effectively cured on appeal will depend on the nature and scope of
the appeal. If the appeal entails a de novo hearing and essentially the
exercise of an original jurisdiction, then a fair hearing on appeal is normally
capable of curing the failure of natural justice. But as the Judicial Committee
of the Privy Council acknowledged in Calvin v. C~rrth,er~e i s no absolute
rule in this regard. There are, the Judicial Committee said "cases, where,
(1945) 45 S.R. (N.S.W.) 182.
[I9141 V.L.R. 635. See also Meyers v. Casfy (1913) 17 C.L.R: 90.
Cases m wh~chit was held that appeal &d not preclude ju&cial remedy include
Ridge v. Baldwin [I9641 A.C. 40; Annamunthodo v. Oilfield Workers' Trade Union
[I9611 A.C. 945; Denton v. Auckland City [I9691 N.Z.L.R. 256; Wislang v. Medical
Practitioners Disciplinary Committee [I9741 1 N.Z.L.R. 29, 42-5; Reid v. Rowley
[I9771 2 N.Z.L.R. 472 (with some reservations); Leary v. National Union of
Vehicle Builders [I9711 Ch. 34; Anderton v. Auckland City Council [I9781 1
N.Z.L.R. 657; cf. A.W.U. v. Bowen {No. 2) (1948) 77 C.L.R. 601, 618, 619, 632;
Pillai V. Singapore City Council [I9681 1 W.L.R. 1278, 1286; King v. University
of Saskatchewan [I9691 S.C.R. 678; Re Chromex Nickel Mines Ltd (1971) 16
D.L.R. (3d) 273; Twist v. Randwick (1977) 136 C.L.R. 106.
[I9801 A.C. 574. Followed in R. v. Marks & Federated Ironworkers Association;
Ex parte Australian Building Construction Employees and the Builders' Labourers'
Federation (1981) 35 A.L.R. 241.
Judicial Review and Appeals as Alternative Remedies 49
after examination of the whole hearing structure, in the context of the
particular activity to which it relates (trade union menlbership, planning,
employment etc.) the conclusion is reached that a complainant has the right
to nothing less than a fair hearing both at the original and at the appeal
~tage.'~T~h6e inference to be drawn from this observation is that there may
be cases in which, despite the fact that there has been a fair hearing on
appeal, an aggrieved party may still obtain judicial review on the ground
that he did not receive a fair hearing at the original stage.
Their Lordships suggested that there was an intermediate category of
cases: those in which the appellate jurisdiction was founded upon contract,
did not involve a hearing de novo completely insulated from the hearing at
first instance, but, viewed in its entire contractual context, was a jurisdiction
which, if properly exercised, produced a fair decision. In these
cases, those party to the contract establishing the jurisdiction would be
deemed to have accepted "what in the end is a fair decision notwithstanding
some initial defe~t".B~u t their Lordships hastened to add that even in
these intermediate cases "there may be instances when the defect is so
flagrant, the consequences so severe, that the most perfect of appeals or
rehearings will not be sufficient to produce a just res~lt".~
CONCLUSIONS
Australian and English courts have not embraced the doctrine which has
been developed in courts in the United States of America according to which
applications for judicial review will not be entertained unless the applicant
has exhausted his administrative remedies.]= The requirement that an
applicant for judicial review must have exhausted his administrative remedies
means that courts will normally not intervene before the primary decisionmaker
has made his final order, or, if the applicant has a right to appeal,
until he has exhausted his remedy by way of appeal.lm
The requirement has been justified on several grounds. In United States
v. Kart~n,lJu~d~g e Augustus N. Hand, described it as necessary for "the
orderly conduct of the government's business." Schwartz viewed it as "an
expression of administrative autonomy and a rule of sound judicial
ad~ninistration."A~d~m~i nistrative agencies, he suggested, should be free to
work out their own problems, and courts should not interfere in their
126 Id. 592.
Id. 593.
1% Ibid.
For accounts of this doctrine see K. C. Davis, Administrative Law Treatise
(St. Paul, West Publishing Co., 1958) Vol. 3, Chap. 20 and 1980 Supplement (San
Diego, K. C. Davis Pub. Co., 1980), Chap. 20; K. C. Davis, Administrative Law
in the Seventies (New York, The Lawyers Co-operative Publishiig Co., 1976),
Chap. 20; B. Schwartz, Administrative Law (Boston, Little Brown, 1976) 172,
173; B. Schwartz and H. W. R. Wade, op. cit., 278-80.
130 U.S. V. Singh Tuck, 194 U.S. 161 (1904); K. C. Dam, op. cit., 20.08.
133 F. 2d 703, 706 (2nd Circ. 1943).
132 Schwartz, op. cit. 498.
50 Monash University Law Review [VOL9. , SEPT. '821
operations until they had done their work. Yet the requirement has not
been without its critics and some of them, notably K. C. Davis, believe that
the circumstances in which courts have been prepared to admit exceptions
to it are so numerous that it can no longer be regarded as an absolute
r~le.1E~xc~ep tions have, he points out, been made where the applicant
complains of a patent absence or excess of jurisdiction,la or where he can
show that he would sustain irreparable injury if required to pursue his
administrative remedy, or where the respondent agency has not opposed
judicial review. On the other hand, federal courts have, he maintains, tended
to ignore s. 704 of the Administrative Procedure This section
expressly allows for judicial review of agency action even though the
applicant has not availed himself of his right to appeal against it, except in
cases where there is an agency rule requiring him to have exhausted that
right.
When an applicant for judicial review contests the assumption of jurisdiction
of an inferior court, tribunal or agency, it is clearly pointless to
expect him to submit to that assumption of jurisdiction and not to seek
judicial remedy against its exercise until he has exhausted his remedy by
way of appeal. An early, authoritative judicial determination of the jurisdictional
issue, if favourable to the applicant, will spare all concerned "the
vexation of a useless hearing."l36 Again, if an applicant is entitled to demand
the exercise of a jurisdiction or discretion, and has been denied his due,
why should he be required to protest his right by appealing and be denied
the benefit of a conclusive judicial ruling on his right, and, if need be, a
coercive order to enforce it?
The kinds of considerations which come into play when a decision-maker
has made what he regards as a final disposition and a person affected by his
determination has a choice between appealing and making application for
judicial review in a supervisory jurisdiction are somewhat diierent. Assuming
that the choice is a real one and that the grounds on which application for
judicial review might be made are also grounds which might be relied upon
in an appeal, the forum which the applicant selects is likely to be affected
by considerations such as these:
(a) The ability of the appellate body to make a conclusive determination
which cannot itself be subject to judicial review, except perhaps by
way of appeal. This consideration is bound to be of some significance
See references in fn. 129 above.
Re Penthouse International Ltd & Minister of National Revenue 119771 2 F.C. 555,
and R. F. Reid and H. David, op. cit., 371-2.
The section was applied in United States v. Consolidated Mines & Smelting CO.
455 F. 2d 432 (9th Circ. 1971) and Mt. Sinai Hospital of Greater Miami v.
Weinberger, 376 F. Supp. 1099, 1124-6 (1974), but ignored in McKart v. United
States, 395 U.S. 185 (1969) ; McGee v. United state.^, 402 U.S. 479 (1971); and
Ensey v. Richardson, 469 F. 2d 664 (9th Circ. 1972). See further K. C. Davis,
op. cit. 1980 Supplement, Chap. 20.
Ward v. Keenan 70 A. 2d 77 (N.J. 1943) per Vanderbilt C.J. at 82.
Judicial Review and Appeals as Alternative Remedies 5 1
when the choice is between appealing to the Administrative Appeals
Tribunal or some other administrative appellate body and seeking
review by a superior court of supervisory jurisdiction.
(b) The likelihood that a favourable determination on an application for
judicial review will resolve the controversy once and for all. If, for
example, a person has been deprived of an occupational licence and
contends that even if the conduct alleged against him is proved, there
was no power to cancel his licence, he would probably prefer to
proceed direct to a court of supervisory jurisdiction, rather than appeal
to an administrative appeals tribunal whose determination on the
jurisdictional question could still be contested on an application for
supervisory review, or on a further appeal. Similarly, if the choice is
between appealing to one court, subject to further appeal to a higher,
superior court, and between applying direct for review by the superior
court in its supervisory jurisdiction, the applicant may prefer the latter
both to avoid delay in final resolution of the cause and to minimise
expenses.
(c) The ancillary powers available to the appellate body and the court of
supervisory jurisdiction. The former may not, for example, have power
to require the attendance of witnesses or production of documents; it
may not have power to award costs; it may not have power to enforce
its orders.
(d) Availability of legal aid. Legal aid may be available in judicial
proceedings, but not on an appeal.
Australian and English courts have not gone to the extreme of allowing
parties who do have an effective choice between appealing and invoking
their supervisory jurisdiction to select the judicial forum, regardless of the
court's own assessment of what remedy is the most appropriate.lW If the
appeal lies to an administrative tribunal rather than to a court, and the party
seeking judicial review does so on jurisdictional grounds, then it is more
likely than not that a court will accept the applicant's choice of the judicial
forum, if only to bring the dispute to a speedy and authoritative conclusion?38
On the other hand there are intimations that the High Court of Australia
will be less ready to intervene at the behest of parties who invoke its original
supervisory jurisdiction in relation to the actions of superior courts of
limited federal jurisdiction, in advance of the exercise of rights to appeal
137 Cf. Re Richards [I9451 3 D.L.R. 87.
188 Cases in which the relative speed and finality of judicial review have been mentioned
as factors favouring judicial review include Burder v. Veley (1840) 12 Ad. & E.
233, 263; R. v. H. Beecham & Co.; Ex parte R. W. Cameron & Co. [I9101 V.L.R.
204; R. v. Hillington B.C.; Ex parte Royco Homes Ltd [I9741 1 Q.B. 720; R. v.
Anderson [I9421 1 D.L.R. 58; Salrnar Holdings Pfy Ltd v. Hornsby S.C. [I9711 1
N.S.W.L.R. 192; Sutherland Shire Council v. Leyendekkers [I9701 1 N.S.W.L.R.
356; Vowel1 v. Shire oj.Hastings [I9701 V.R. 764; Kelly v. Coats (1981) 35 A.L.R.
93; Graham v. Commissioner of Superannuation, (1981) 3 A.L.N. [52].
5 2 Monash University Law Review [VOL.9 , SEPT. '821
to a Full Court of the relevant superior co~rt.l3S~im ilarly if the court to
which application for judicial review is made itself possesses a jurisdiction
to hear and determine appeals against decisions of the type now the subject
of the application for review, the court may well take the view that appeal
is the preferable remedy.140
It is always open to a court of supervisory jurisdiction to decline to
intervene on the ground that the application made to it is premature. This
situation is most likely to occur when a writ of prohibition or an injunction
or a declaration is sought in respect of an alleged usurpation of jurisdiction,
and where the presence or absence of jurisdiction depends on a finding and
evaluation of facts which, at the time the applrcation for review is made,
have not yet occurred. It may be too that courts will be less disposed to
intervene, in advance of exercise of a right of appeal, when the error
complained of by the applicant, if established, could only be nonjurisdictional
error of law. Depending on the competence of the appellate
body to decide the issue, the court may decline remedy on the ground that
the error, if any, can be corrected on appeal.141
If the applicant for judicial review complains about a decision which, he
contends, was reached in contravention of a duty to accord natural justice
to him, the fact that he has not chosen to exercise his right to appeal against
that decision, or has appealed and also made an application for judicial
review, will probably not count against him unless the right to appeal is a
right to a de novo hearing which, if conducted fairly, will cure any defect
in the original proceedings. But even if an appeal could cure any deficiencies
in the conduct of the original hearing, the court might, if it perceived the
case to be one in which the central issue was whether there was a duty to
accord natural justice and if so what that duty entailed, either grant the
remedy sought, or if it refused it on discretionary grounds, make what was
tantamount to a declaration of right.
There can be little doubt that henceforth the choice between resort to
statutory remedy by way of appeal and pursuit of remedy in a court of
supervisory jurisdiction will present itself more often than it has in the past,
and that courts of supervisory jurisdiction will, in consequence, be called
upon more frequently to exercise their discretion not to award relief by
139 E.E.R . V . ROSSJ ones: Ex oarte Beaumonf 1,1-9-7.9-1 1- 41 C.L.R. 504: R. V. Judaes of
~deraClo urt of ~ustralikE X parte W.A. ~atiina~l ootbal~l eague(Z nc.) (11979)
143 C.L.R. 190; R. v. Cook; Ex parte Twigg (1980) 54 A.L.J.R. 515.
140 See Chad Investments Lfd v. Longson, Tammets & Denton Real Estate Ltd [I9711
5 W.W.R. 89, 94: Re Novak & Law Society of British Columbia (1973) 31 D.L.R.
(3d) 89. 10213: R. v. Elliott: Ex Darfe Ellibtt 11974) 8 S.A.S.R. 329. 366: Rozander
4. ~nergy~ esources~ onseivatidnB oard (1979) 9j D.L~R.( 3d) 271, 279-83; Re
Wilfong; Cathcart v. Lowery (1962) 32 D.L.R. (2d) 477, 479.
141 There is a hint in Lord Dt$&g's speech in Baldwin &-Francis Ltd v. Patents
Auueal Tribunal r19591 A.C. 663. 697 that a distinction should be drawn between
juif dictional and non j&-isdictional errors of law. See also R. v. Chief Immigration
Oficer, Heathrow Airport; Ex parte Bibi [I9761 1 W.L.R. 979, 987; Sebastian v.
Saskatchewan (1978) 93 D.L.R. (3d) 154; Re London Gardens Ltd and Township
of Westminster (1976) 9 O.R. (2d) 175. See also Schwartz and Wade, op. cit. 280.
Judicial Review and Appeals as Alternative Remedies 5 3
reason of the existence of the other avenue for seeking redress. Australian
parliaments have, in recent years, moved towards the creation of more
ample rights to secure review of administrative decisions upon appeal,
whether to courts or administrative appeal tribunals. But at the same time
steps have been taken to extend the scope of supervisory judicial review and
also to enhance litigants' prospects of obtaining redress upon applications
for such review. Some courts, either of their own motion,la or because of
legislative intervention,143 will now review on the ground of error of law,
regardless of whether the error is characterized as jurisdictional or non
jurisdictional, and if non jurisdictional, regardless of whether the error
appears on the face of the record. Imposition of statutory duties to give
reasons for administrative decisions has facilitated discovery and proof of
reviewable errors244 Procedures for making application for judicial review
have been simplified and the risk of failing to obtain remedy because the
wrong "form of action" has been selected, has, in many jurisdictions, been
eliminated. Legislation such as the Administrative Decisions (Judicial
Review) Act 1977 and Victoria's Administrative Law Act 1978 has probably
heightened public awareness of the possibility of obtaining redress in a
judicial forum. And while the cost of litigating is still a deterrant to many
persons with justiciable grievances, the availability of legal aid may mean
that some will now pursue their grievances by legal action who, unaided,
would not have even contemplated litigation.
That developments such as these may encourage more frequent recourse
the judicial forum in preference to exercise of statutory rights to appeal
appellate tribunals was recognized by the New South Wales Court of
Appeal in Commissioner of Police v. G0rd0n.l~M~o ffitt P. (with whom
Reynolds and Glass JJ.A. concurred) concluded his reasons for judgment
on this cautionary note:
"In this field, as in others, where the law is evolving in aid of a more just
approach to some situations, resort to the new tool is inclined to become
fashionable, leading to the danger on occasions that resort to it is not in
aid of its true purpose, so that the instrument intended to produce greater
justice on some occasions may produce less justice. Justice is not a one
sided afTair."le
Justice in that particular case was seen to be better served by recourse to
the right to appeal to an independent tribunal which could afford the
I* See Re Racal Communications Ltd [I9811 A.C. 374.
143 E.g. Administrative Decisions (Judicial Review) Act 1977 and s. 8 of the Administrative
Law Act 1978 (Vic.) .
Persons entitled to seek review of decisions reviewable under the Administrative
Decisions (Judicial Review) Act 1977 are entitled to demand written reasons for
decision (s. 13) except in those cases listed in the Second Schedule. See also
Administrative Appeals Tribunal Act 1975 and Administrative Law Act 1978
1Vic.l.
1% il98fi-1 N.S.W.L.R. 675.
1M Id. 690.
54 Monash Uvziversity Law .Review [VOL.9 , SEPT. '821
applicant for judicial review the fair hearing which, he alleged, was wrongly
denied to him at first instance, and which was both authorized and required
to conduct a de novo hearing on the merits.
If, as seems likely, courts of supervisory jurisdiction will be confronted
with an increasing number of cases in which the applicant for review could
have appealed to another body but did not, it will, I believe, be difficult for
them to resist demands that, in the exercise of their discretion to refuse
relief by reason of the existence of the alternative remedy, they act in
accordance with principles which are clearly articulated and adumbrate
their reasons for decision. Potential litigants who do have a choice between
invoking the appropriate supervisory jurisdiction and appealing, are surely
entitled to know what considerations the court is likely to take into account
in deciding whether remedy by way of appeal is a suitable alternative to
judicial review and one which is to be preferred?47 They are surely entitled
also to expect some degree of consistency in the disposition of like cases
before the same court.
Should there be any marked inconsistencies in the approaches adopted by
individual judges to the exercise of the discretion, it would always be open
to a party aggrieved by the manner in which the discretion was exercised in
his case to appeal to a Full Court or, perhaps, to a higher court. An
individual judge who recognized that the case before him did raise important
issues of judicial policy concerning the exercise of the discretion might also
think it prudent to refer the matter to a Full Court. Notwithstanding that
Australian courts do not, on the hearing of appeals against the exercise of
judicial discretions, exercise much more than a supervisory-style jurisdiction,
lM they are capable of enunciating broad principles by which the
exercise of discretion is to be guided.
The exercise of the judicial discretion to refuse remedy on the alternative
remedy ground does raise fundamental questions about the nature and
purpose of supervisory judicial review, about the extent to which the courts
should defer to an applicant's assessment of his most convenient forum, and
about the extent to which it is proper for them to decline to exercise jurisdiction
in favour of some other agency which has been endowed by statute
with jurisdiction to review on appeal. How judges resolve these questions is
bound to be affected by their perceptions of their authority and responsibilities.
Those who regard a supervisory jurisdiction as a residual and
extraordinary jurisdiction would probably be less ready to assert that
jurisdiction than would those who view the jurisdiction as one which litigants
with the requisite standing are presumptively entitled to invoke whenever the
147 On the importance of "principled" exercise of judicial discretions see Ward v.
James [I9661 1 Q.B. 273,293-5.
I* See fn. 5 above and Gronow v. Gronow (1979) 29 A.L.R. 129, 138, 143, 149.
Judicial Review and Appeals as Alternative Remedies 5 5
legality of administrative action, as distinct from its merits or expediency,
or the policy behind it, is called into q~esti0n.l~~
Judicial approaches to the exercise of the discretion may also be influenced
by differing evaluations of the competence of appellate tribunals to decide
the legal issues raised for decision. Whether a question of law is even
raised for decision is a matter on which judges may differ and differ
principally because they have different notions about what kinds of questions
are fit for judicial determination and what can properly be left to be
determined by other agencies of government.
When provision has been made for appeals against administrative decisions
of a kind which are made frequently and in large numbers, there is another
factor which may influence judicial uses of the discretion to refuse remedy,
but which may not always be spelled out. This is that were the court to
assume jurisdiction and to award remedy too readily, it might encourage
resort to it rather than to the appointed appellate tribunal or tribunals and
thereby invite a multiplicity of suits with which it could not cope. Courts
have a limited capacity to control their own workload^.^^ A court of
appellate jurisdiction to which application for leave to appeal must be made
may exert some control over its workload by adopting a practice of granting
leave to appeal sparingly. A higher court having a jurisdiction which is
concurrent with that of a lower court may be authorized by statute to remit
a cause to the lower c0~rt.lJu~d~ic ial discretions to refuse discretionary
remedies may also be employed to regulate the volume of litigation. One of
the rare instances in which this was done overtly was in R. v. Preston
Supplementary Benefits Appeal Tribunal; Ex parte Moore d Shine.lm
The applicants for review in this case had sought certiorari to quash a
decision of the Tribunal, on appeal from the Supplementary Benefits
Commission, denying them award of benefit as householders. What was in
issue was the correctness in law of the decision that they did not qualify as
householders. The Court of Appeal held that the Tribunal had erred; nevertheless
in its discretion it declined to quash the Tribunal's determination.
Lord Denning M.R., with whom the other Lord Justices agreed, thought the
point raised for decision was a technical one and in his opinion the governing
149 Judicial "activism" has been urged by, inter alia, Lord Scarman in his Hamlyn
Lectures, 26th series, English, Law the New Dimension (London, Stevens, 1979
and by Bre~anJ. ("New Growth in the Law: The Judicial Contribution" (1979)
6 Mon. L.R. 1). See also Schwartz and Wade, op. cit. 285-6. Contrast the arguments
for judicial restraint of P. W. Hogg, "Judicial Review: How Much do we
Need?" (1974) 20 McGill L.J. 157 and H. W. Arthurs, "Re-thinking Administrative
Law: A Slightly Dicey Business" (1979) 17 Osgoode Hall L.J. 1.
150 AS P. Robertshaw would have put it, to exercise "homeostatic control", i.e., to
maintain "equilibrium between processes intake and available manpower resources"
-"Characteristics of the Judicial Group and Their Relation to Decision-Making"
(1973) 47 A.L.J. 572 at 572.
151 E.g. the High Court's power of remittal under s. 44 of the Judiciary Act 1903.
'52 [I9751 1 W.L.R. 624; followed in R. v. Barnsley S.B.A.T.; Ex parte Atkinson [I9771
1 W.L.R. 917.
56 Monash University Law Review [VOL9. , SEPT.' 821
legislation "should be administered with as little technicality as possib1e."lG3
He conceded that, since the legislation had to be administered by thousands
of officials and by some 120 appellate tribunals, it was desirable that there
be uniformity in decision of like cases. "In order to ensure this, the court
should be ready to consider points of law of general application . . ."lBMut,
he said:
"The courts should hesitate long before interfering by certiorari with
decisions of the appeal tribunals. Otherwise the courts would become
engulfed with streams of cases . . . The courts should not enter into a
meticulous discussion of the meaning of this or that word in the Act.
They should leave the tribunals to interpret the Act in a broad reasonable
way, according to the spirit and not to the letter . . . The court should
only interfere when the decision of the tribunal is unreasonable in the
sense that no tribunal acquainted with the ordinary use of language could
reasonably reach that decision.15"
When establishing new remedies by way of appeal against administrative
decisions, parliaments rarely, if ever, give any positive guidance to the courts
on how their supervisory role might be aecteti. The courts have made it
plain that they will not regard the mere creation of alternative remedies as
ousting their jurisdiction to review. Parliaments, for their part, seldom
legislate to make the alternative statutory remedy the exclusive remedy or
to require recourse to that remedy before any application for judicial
review can be entertained. Section lO(2) of the Administrative Decisions
(Judicial Review) Act 1977 gives statutory expression to the discretion
traditionally exercised by courts of supervisory jurisdiction, and it may be
read as a legislative direction to the Federal Court that it must at least
consider whether the applicant for review has a suitable, alternative remedy.
I doubt whether the independence of the judiciary would be compromised
or any constitutional precepts regarding separation of powers would be
violated if a parliament were to indicate, though not exhaustively, factors
which were to be taken into account in exercise of the judicial discretion. It
is not, I believe, a course which a legislature would be well advised to adopt
unless it had become apparent that the courts had proved themselves
incapable of devising sznsible principles which were consistently applied.
This is not to say that there might not be circumstances in which, having
created special machinery for review of administrative decisions of a certain
description, the legislature would not be justified in stipulating that recourse
should be had to that machinery before any supervisory or like judicial
jurisdiction was invoked.
153 [I9751 1 W.L.R. 624,631.
164 Id. 632.
155 Id. 631-3.