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The High Court’s Power to Grant Certiorari – the Unresolved Question

Published online by Cambridge University Press:  24 January 2025

L. J. W. Aitken
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Extract

Whether it is within the power of the court to grant certiorari, either at all or in a case such as this, is a more difficult question, and is one to which no definite answer has been supplied by any decision of the court.

It is strange to think that the question whether the High Court of Australia can grant the writ of certiorari may still be characterised as “unresolved”. To judge from the treatment this issue has received from several commentators, it might be asseverated that the matter is “unresolved” because “unimportant”. This article will examine the heads of jurisdiction which might be invoked to sustain the granting of the writ by the High Court.

As well, it will be necessary to consider whether, as a matter of principle, certiorari can or should issue to a superior court of record such as the Federal Court of Australia. The decision in Re Gray; ex parte Marsh casts doubt on the amenability of those tribunals to the writ at all. Since it has always been hitherto blithely assumed that Federal Court judges are susceptible to certiorari for the purpose of s 75(v), the dissentients’ view of Gray’s case, if accepted, would require a fundamental rethink of the entire area.

Type
Research Article
Information
Federal Law Review , Volume 16 , Issue 4 , December 1986 , pp. 370 - 385
Copyright
Copyright © 1986 The Australian National University

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References

1 Per Aickin J in Re Toohey; ex parte Northern Land Council (1981) 38ALR 439, 517.

2 ibid 519; Renfree, HE, The Federal Judicial System of Australia (1984) 335-336Google Scholar cites the authorities.

3 Renfree supra n 2, 336-337: “In practice, the question whether the writ is available in the High Court has been of little importance as the High Court has granted prohibition in many cases where certiorari would have been an appropriate remedy, and has thereby extended the scope of prohibition beyond the generally accepted limits”.

4 (1985) 59 ALJR 804.

5 Discussed below 380-384.

6 Section 39B(l) of the Judiciary Act 1903 (Cth) is in the following terms: “The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.” An applicant may still, of course, proceed in the original jurisdiction of the High Court since the jurisdiction conferred by the Constitution is inalienable.

7 Section 75 provides: “In all matters – (i) Arising under any treaty: (ii) Affecting consuls or other representatives of other countries: (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: (iv) Between States, or between residents of different States, or between a State and a resident of another State: (v) In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: the High Court shall have original jurisdiction”. See generally, Lane, P H, “High Court's Jurisdiction to Issue Writs” (1967) 41 ALJ 130Google Scholar; “High Court's Jurisdiction - Certiorari” (1969) 43 ALJ 21; “High Court Jurisdiction Interpretation of the Constitution” (1971) 45 ALJ 34; Katz, L, “Aspects of the High Court's Jurisdiction to Grant Prerogative Writs under s 75(iii) ands 75(v) of the Constitution” (1976) 5 University of Tasmania LR 188Google Scholar. As Northrop J observed in Coward v Allen (1984) 52 ALR 320, 324-325: “the similarity of the jurisdiction conferred upon the High Court by placitum 75(v) of the Constitution and the jurisdiction conferred upon the Federal Court by s 39B of the Judiciary Act is readily apparent. The difficulties that arise from the fact that the writ of certiorari is not mentioned in the Constitution or the Judiciary Act does not arise in this case... Counsel for the respondents made no submissions against absence of jurisdiction based on the absence of express reference to the writ of certiorari in either placitum s 75(v)of the Constitution or s 39B of the Judicial Act.”

8 It would appear from the Second Reading Speech on the Statute Law Bill (No 2) on 8 October 1983, 1291 that a matter originally commenced in the High Court under s 75 should be remitted under s 44 of the Judiciary Act to the Federal Court. See Re Hassell; ex parte Pride (1984) 52 ALR 181, 183 per Toohey J.

9 In Re McKenzie; ex parte Actors and Announcers Equity (1982) 56 ALJR 221 and in Re Clarkson; ex parte Australian Telephone and Phonogram Officers' Association (1982) 56 ALJR 224 the writ was refused but no doubt was cast on the Court's jurisdiction to grant it.

10 (1980) 31 ALR 353, 361 per Gibbs J; 363 per Stephen J; 364 per Mason J; 365-366 per Aickin J; 54 ALJR 515.

11 (1981) 55 ALJR 387, 391-392 per Gibbs CJ, Mason, Murphy and Wilson JJ; 394 perStephen J.

12 (1984) 53 ALR 187, I 89 per Mason, Murphy, Wilson, Brennan and Dawson JJ.

13 Sir Harry Gibbs, “Developments in the Jurisdiction of Federal Courts” (1981) 12 University of Queensland LJ I, 12: “In a number of cases, including Pitfield v Franki, the court has granted certiorari against an officer of the Commonwealth where prohibition was sought but could not appropriately be granted, notwithstanding that certiorari is not one of the remedies mentioned in s 75(v). A very recent case in which this course was followed was R v Cook; ex parte Twigg where the court left open for future consideration the correctness of Pitfield v Franki. If these decisions are followed they indicate that provided that prohibition is genuinely sought against an officer of the Commonwealth the Court has jurisdiction to grant certiorari notwithstanding that the application of prohibition fails. In other words, an associated remedy is granted to enable the Court effectively to exercise its jurisdiction.”

14 Quick, and Garran, , The Annotated Constitution of the Australian Commonwealth (1901) 778.Google Scholar

15 Ibid.

16 The Court had chiefly concerned itself with the operation of the power to grant prohibition, eg R v Commonwealth Court of Conciliation and Arbitration; ex parte Whybrow (1910) 11 CLR 1 where the majority (Griffith CJ, Barton and O'Connor JJ) held that prohibition would issue to the President of the Commonwealth Court of Conciliation and Arbitration in the Court's original, rather than appellate, jurisdiction.

17 (1924) 34 CLR 482.

18 Ibid 491.

19 That is, as a matter invoking s 76(i) of the Constitution, “Arising under this Constitution, or involving its interpretation” with respect to which the Parliament had made a law “conferring original jurisdiction the High Court”. This involves using s 30 of the Judiciary Act 1903 as the “law” upon which reliance is placed. P H Lane, “High Court Jurisdiction Interpretation of the Constitution” (1971) 45 ALJ 34 uses this argument to explain Pitfield v Franki (1970) 123 CLR 448. It is examined below at pp 379-380.

20 Section 30 of the Judiciary Act 1903 (Cth) relevantly provides: “In addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution, the High Court shall have original jurisdiction – (a) in all matters arising under the Constitution or involving its interpretation.”

21 Section 80 of the Judiciary Act 1903 (C'th) provides “So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law of England as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.”

22 Supra n 17, 492.

23 The key decision is R v Hibble; ex parte The Broken Hill Proprietary Co Ltd (1920) 28 CLR 456 where a statutory majority (Knox CJ, Gavan Duffy and Starke JJ; Isaacs, Higgins and Rich JJ dissenting) held that prohibition would issue to a special Tribunal constituted under the Industrial Peace Act 1920 (C'th) to prevent it enforcing an award which it had purported to make without power. Relying on R v Commonwealth Court of Conciliation and Arbitration and the Australian Builders' Labourers' Federation; ex parte Jones (1914) 18 CLR 224, Knox CJ and Gavan Duffy J (at 463) held that prohibition could be granted even after an award had been made. Cf Isaacs and Rich JJ at 475, “it is difficult to see any escape from the conclusion that the Tribunal ... was functus officio here”.

24 In Gilchrist the Court was pressed with the decision of the House of Lords in Clifford and O'Sullivan [1921] 2 AC 570. Knox CJ and Gavan Duffy J relied on the Broken Hill case (1909) 8 CLR 419, the Builders' Labourers' case supra n 23, the Tramways case, (No 1) (1914) 18 CLR 54 and Hibble supra n 23 to reject the proposed limitation.

25 Supra n 17, 501-526.

26 Ibid 526.

27 R D Lumb & Ryan, K W, The Constitution of the Commonwealth of Australia Annotated (3rd ed 1981) 290Google Scholar: “... any inconvenience which the absence of certiorari ins 75(v) may have caused has been avoided by peculiarly [sic] Australian extension of prohibition exemplified in R v Hickman.” It is not clear from the early judgments of the Court how much influence the lack of explicit reference to certiorari ins 75(v) had upon the development of the width of prohibition. There is almost a deliberate lack of reference to the topic and it is not unreasonable to suppose that such an absence had some effect, albeit at an unconscious level.

28 R v Drake-Brockman; ex parte National Oil Pty Ltd (1943) 68 CLR 51.

29 (1975) 132 CLR 595, 609 explaining the decision in Pitfield v Franki.

30 In R v District Court of the Metropolitan District; ex parte White (1966) 116 CLR 644, 655 his Honour said: “... on top of the limitations of the scope of the prerogative remedy, which are inherent in its nature and arise from its history, there are also in this case some questions, peculiar to this Court, both of jurisdiction and of parties. It is at least questionable whether certiorari to quash proceedings of an inferior tribunal can issue from this Court as a substantive remedy not ancillary to some proceeding otherwise within the original jurisdiction of the Court.”

31 The concept of “pendent jurisdiction” has been introduced into discussions of both the High Court's power to issue writs pursuant to s 33 of the Judiciary Act, and the power of the Federal Court of Australia to examine claims which are related to, but not strictly within, the ambit of those brought under the Federal Court Act. See generally, W M C Gummow, “Pendent Jurisdiction in Australia - Section 32 of the Federal Court of Australia Act 1976” (1979) 10 FL Rev 211 and Sir Harry Gibbs supra n 13, 12-13.

32 The writs are discussed together. See Gilchrist (1924) 34 CLR 482, 501-526 per Isaacs and Rich JJ.

33 Supra n 30.

34 Supra n 24.

35 Quick and Garran supra n 14, 783.

36 (1980) 31 ALR 353.

37 Ibid 365 citing R v Hibble; ex parte Broken Hill Proprietary Co ltd (1920) CLR 456.

38 Ibid.

39 Ibid 366.

40 Ibid. His Honour also said: “... it seems to me that it would not be proper to make an order for certiorari except upon a basis which involved the court in treating its jurisdiction to make such an order as established, if not by the decision in Pitfield v Franki, then by the circumstances of the present case”.

41 As Griffith CJ said in a different context in Ridley v Whipp (1916) 22 CLR 381, 386: “... consent cannot give jurisdiction over subject matter which is itself not within the cognizance of the Court”. See, too, Hopper v Egg and Egg Pulp Marketing Board (Victoria) (1939) 61 CLR 665, 677. Lane, PH, The Australian Federal System (2nd ed 1979) 595Google Scholar notes: “I know of no case in which the High Court has actually gone to the length of closing its doors to a litigant suspected of fabricating jurisdiction.” The fact that no example may be found makes the problem of bona fides no less acute. Lane discusses the question of bona fides at pp 595-596.

42 Supra n 36, 366.

43 His Honour also said, “It cannot be regarded as clear that it would be a matter falling with s 76 in respect of which Parliament might make laws conferring original jurisdiction.” Ibid.

44 See generally, the arguments in Philip Morris Inc v Adam P Brown Mate Fashions (1981) 33 ALR 465, 486 per Gibbs J at 486. That case was concerned with the operation of s 22 of the Federal Court Act but it is submitted that a similar argument is applicable to s 31 of the Judiciary Act.

45 Supra n 36, 366 per Aickin J.

46 Ibid 364.

47 Ibid.

48 Ibid.

49 Supra n 12.

50 Ibid 189, per Mason, Murphy, Wilson, Brennon and Dawson JJ.

51 R v Cook supra n 36, 366 per Aickin J; Ridley v Whipp supra n 41, 386 per Griffith CJ; P H Lane supra n 41, 602.

52 Lane, PH, “High Court's Jurisdiction to Issue Writs” (1967) 41 ALJ 130, 131.Google Scholar

53 As, for instance, in R v Cook supra n 36, where prohibition, alone was ineffective.

54 Section 33 of the Judiciary Act provides: “(I) The High Court may make orders or direct the issue of writs – (a) commanding the performance by any court invested with federal jurisdiction, of any duty relating to the exercise of its federal jurisdiction; or (b) requiring any court to abstain from the exercise of any federal jurisdiction which it does not possess; or (c) commanding the performance of any duty by any person holding office under the Commonwealth; or (d) removing from office any person wrongfully claiming to hold an office under the Commonwealth; or (e) of mandamus; or of habeas corpus. (2) This section shall not be taken to limit by implication the power of the High Court to make any order or direct the issue of any writ.

55 Sections 32 and 33 of the Judiciary Act do not provide an independent source of jurisdiction. They only come into effect if original jurisdiction is otherwise properly invoked. This flows from the High Court's reasoning in Philip Morris Inc v Adam P Brown Male Fashions supra n 44,476 per Barwick CJ; cf 486 per Gibbs J; 499 per Mason J, dealing withs 22 of the Federal Court Act which is analogous to s 32 of the Judiciary Act. What is its effect? Is it perhaps intended to catch certiorari? An examination of the writs and orders included in s 33(1) reveal nothing left out. Mandamus is covered bys 33(l)(e); prohibition bys 33(l)(b); quo warranto bys 33(l)(d) and habeas corpus bys 33(1)(1). The writs not covered are certiorari and de non procedendo rege inconsulto. In relation to the writs available see R v Bevan; ex parte Elias and Gordon (1942) 66 CLR 452, 465 per Starke J; Whybrow's case supra n 16, 48, 49; Jerger v Pearce (1920) 28 CLR 588.

56 (1968) 118 CLR 488, 494-495 (italics added)

57 Philip Morris Inc v Adam P Brown Male Fashions (1981) 33 ALR 465,476 per Barwick CJ; 486 per Gibbs J.

58 Ibid 475-476.

59 P H Lane supra n 41, 58.

60 supra n 48.

61 Cf P H Lane Supra n 41, 653, n 37 and text, where the learned author states: “To be exact, the applicant for a writ first establishes a head of jurisdiction, such ass 75(iii) ors 75(iv). Then the applicant relies on the common-law fullness of 'the judicial power' (of the Commonwealth) which is granted to the High Court by Constitutions 71 and which comes into play whenever the Court exercises jurisdiction. By this power the Court can give complete relief, including prerogative writs.”

62 le ss 31 or 33 of the Judiciary Act.

63 Section 30(a) of the Judiciary Act.

64 Supra n 17.

65 Lane, , “High Court' Jurisdiction to Interpretation of the Constitution” (1971) 45 ALJ 34, 35.Google Scholar

66 (1942) 66 CLR 452, 465.

67 Ibid.

68 Both Pitfield and Marshall conceivably involve such an interpretation because they peripherally examine the operation of s 51(xxxv) of the Constitution.

69 (1981) 31 ALR 353, 361.

70 R v Marshall (1975) 132 CLR 595, 609 per Mason J.

71 Supra n 56, 495.

72 (1914) 18 CLR 54, 63; note Professor Lane's contrary view supra n 61.

73 (1985) 59 ALJR 804.

74 Wade, H W R, Administrative Law (5th ed 1982) 273.Google Scholar

75 Ibid 547.

76 Supra n 73.

77 Gibbs CJ, Wilson and Brennan JJ; Mason, Deane and Dawson JJ dissenting.

78 Supra n 73, 813.

79 Ibid 818.

80 Ibid.

81 That is because a superior court may yet have a “limited” jurisdiction for the purposes of prohibition: see James v South Western Railway Co discussed in A-G of Queensland v Wilkinson (1958) 100 CLR 422, 425 per Dixon CJ.

82 At one stage, as Deane J notes, it involved the actual removal of the record.

83 Supra n 73, 819.

84 Ibid.

85 He reached this conclusion, principally, on the implied exclusion of certiorari by the express choice of remedies contained in s 75(v).

86 Supra n 73, 819.

87 (1949) 78 CLR 389.

88 (1970) 123 CLR 448.

89 (1984) 59 ALJR 132.

90 Supra n 73, 820.

91 Ibid.

92 Ibid.

93 Ibid 821.

94 Ibid.

95 Ibid. Mason J (Ibid 814-815) held that the Federal Court, in deciding whether or not an “irregularity” had occurred, was acting within its jurisdiction. So, even if Gray J made a mistake on the definition of the term, “it [was] not an error susceptible of remedy by way of prohibition.”

96 Ibid 822.

97 Ibid 823: “Section 75(v) of the Constitution does not stand in the way because it does not extend to certiorari and clearly recognises prohibition as the remedy for a court acting in excess of jurisdiction.”

98 Ibid.

99 Supra n 13.

100 Note, in that Case, that Professor Lane’s quodlibetical argument involving s 76(i) of the Constitution and s 30(a) of the Judiciary Act will be unavailable, since s 30(a) only confers jurisdiction on the High Court, not the Federal Court.