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Published online by Cambridge University Press: 24 January 2025
In the past few years, the subject of administrative law remedies has been studied intensively in many common law jurisdictions. In this article, David Mullan examines the various reforms and proposals for reform and concludes that none is completely satisfactory and indeed that some compound previous problems and create new ones as well Nevertheless, he sees some merit in the New South Wales and Nova Scotia solutions which emerged as part of a general reform of the civil procedure rules and not as a separate statutory enactment.
This article is a revised version of a paper presented to the Government Law Interest Group of the Australian Universities' Law Schools' Association at the 29th Annual Conference held at Monash Law School, 10–21 August 1974. The paper was prepared while Professor Mullan was a Visiting Lecturer at Victoria University of Wellington, and certain aspects of the paper have been developed more fully by him in the following articles: “The Federal Court Act: A Misguided Attempt at Administrative Law Reform?” (1973) 23 University of Toronto Law Journal 14; “Reform of Judicial Review of Administrative Action–The Ontario Way” (1974) 12 Osgoode Hall Law Journal 125; “Confusion Perpetuated: The Judicial Review Procedure Act Before the Divisional Court” 1974 Chitty's Law Journal 297; “The Declaratory Judgment: its Place as an Administrative Law Remedy in Nova Scotia” (1975) 2 Dalhousie Law Journal 91, and “Judicial Review of Administrative Action” [1975] New Zealand Law Journal 154.
1 To my knowledge, in England, Scotland, New Zealand and federally in both Canada and Australia as well as in the Provinces of Quebec, Ontario, Nova Scotia and British Columbia and in the States of New South Wales and Victoria.
2 Ss. 2(2) and (3) of The Judicial Review Procedure Act, 1971, 20 Eliz. II, c. 48 (Ontario), ostensibly increase from the common law position the ability of the newly-created Divisional Court to review for error of law and an absence of evidence. The Ontario remedial reforms were accompanied not only by the creation of a new court (The Judicature Amendment Act, 1970 (No. 4), 19 Eliz. II, c. 97 (Ontario), as amended by The Judicature Amendment Act, 1971, 20 Eliz. II, c. 57 (Ontario)), but also by three statutes dealing with administrative procedure: The Statutory Powers Procedure Act, 1971, 20 Eliz. II, c. 47 (Ontario), The Public Inquiries Act, 1971, 20 Eliz. II, c. 49 (Ontario), and The Civil Rights Statute Law Amendment Act, 1971, 20 Eliz. II, c. 50 (Ontario)
3 1970, 19-20-21 Eliz. II, c. 1 (Canada), ss. 28(1)(b) and (c) are also designed to increase the common law power of the courts to review for error of law and an absence of evidence.
4 Parliamentary Paper No. 144, 1971, 77. The Committee (hereinafter called “the Kerr Committee”) recommends a codification of the existing common law grounds for judicial review of administrative action.
5 Published Working Paper No. 40: Remedies in Administrative Law (1971) 2-3. On this matter, the ultimate view of Professor S. A. de Smith, one of the co-authors of the Paper, was expressed in the following terms: “One suspects, however, that a mere rationalisation of remedies without any legislative reform of the substantive law (including the law of damages and compensation) is not going to make a great deal of difference. This is not to say that supersession of existing remedies by a uniform application for review would have no beneficial side-effects at all. I believe it would prove beneficial.” Smith, de Judicial Review of Administrative Action (3rd ed. 1973) 336Google Scholar.
6 The Law Commission Published Working Paper No. 40: Remedies in Administrative Law (1971) 3.
7 Id. 4.
8 Supra n. 5.
9 For a neat, short and incisive advocacy of this type of approach see Willis, “The McRuer Report: Lawyers' Values and Civil Servants' Values” (1968) 18 University of Toronto Law Journal 351, 359CrossRefGoogle Scholar. (“The principle of 'uniqueness' is the principle for me.”) The McRuer Commission Report, on which the Ontario legislative reforms are based had categorically rejected this method of approach: Report of the Royal Commission: Inquiry into Civil Rights (1968) Vol. 1, 326. See also Whitmore, “Administrative Law in the Commonwealth: Some Proposals for Reform” (1972) 5 F.L.Rev. 7, 22Google Scholar, for a decisive condemnation of proceeding in this manner: “It is pointless to argue that further investigation of the administrative process is necessary. The process is well understood and indeed individual members of the Committee had some experience of working in the administration. Such arguments tend to be the crutches of timorous souls who are inclined to approach every problem in piecemeal fashion.” It should be said that Professor Whitmore was a member of the Kerr Committee and the article is in essence a justification of the recommendations made by that Committee. Note, however, that the Kerr Committee and, more particularly, its successor, the Bland Committee, while rejecting the need for further empirical research and individual attention to particular statutory decision-making processes, were clearly in favour of increased scope for appeals from administrative decisions either as a supplement to or in place of common law judicial review. See the recommendations of the Kerr Committee (Parliamentary Paper No. 144, 1971, 115-117) and the Final Report of the Committee on Administrative Discretions(1973) (hereinafter called “the Bland Committee Report”)eriatim.
10 See particularly the criticisms of Professor K. C., Davis in “The Future of Judge-Made Public Law in England: A Problem of Practical Jurisprudence” (1961) 61 Columbia Law Review 201, 204Google Scholar and “English Administrative Law—An American View” [1962] Public Law 139, 149.
11 E. I. Sykes, “Current Reform Trends in Administrative Law” (unpublished). Professor Sykes' paper contains a very interesting discussion of the recommendations of the Bland Committee as well as touching on the Kerr Committee's recommendations on judicial review and the later Ellicott Committee Report (Report of Committee of Review on Prerogative Writ Procedures, Parliamentary Paper No. 56, 1973). The Ellicott Committee was appointed to consider further the problems of the reform of judicial review, but in a most disappointing document merely reiterated most of the recommendations of the Kerr Committee in this regard.
12 Scottish Law Commission Memorandum No. 14: Remedies in Administrative Law (H.M.S.O.Edinburgh, 1971).
13 See, however, Dussault, Le Contrôle Judiciaire de l'Administration au Quebec (1969) and R. v. Royal Institution for the Advancement of Learning; Ex parte Fekete (1969) 2 D.L.R. (3d) 129.
14 The Judicial Review Procedure Act, 1971, 20 Eliz. II, c. 48 (Ontario).
15 Judicature Amendment Act 1972 (N.Z.).
16 British Columbia Law Reform Commission Working Paper No. 10; A Procedure for Judicial Review of the Actions of Statutory Bodies (1973).
17 1970, 19-20-21 Eliz. II, c. 1 (Canada).
18 Nova Scotia Rules of Civil Procedure, 1972.
19 Supreme Court Act, 1970 (N.S.W.)and the Rules made thereunder contained in the Fourth Schedule to the Act.
20 Such as the McRuer Commission.
21 As evidenced by the debates in the Canadian Parliament over the Federal Court Act (both in the House and the Senate).
22 “A New Magna Carta” (headline for a two-part editorial in the Toronto Globe and Mail on 22 and 24 April 1972 in celebration of the coming into force of the McRuer package of legislation).
23 E.g. Re Fairbanks (1969) 5 D.L.R. (3d) 65(1965-1969) 1 N.S.R. 616 (Dubinsky J.).
24 Report of the Law Reform Commission on Appeals in Administration(1973) (L.R.C. 16) 285, Annexure E, para. 3.
25 McRuer Commission Report: Inquiry into Civil Rights (1968) Vol. 1, 317-318.
26 Hollinger Bus Lines Ltd v. Ontario Labour Relations Board [1952] O.R. 366; [1952] 3 D.L.R. 162.
27 Toowoomba Foundry Pty Ltd v. The Commonwealth (1945) 71 C.L.R. 545. Note, however, recent decisions which seem to acknowledge far greater scope for the use of the declaration than was thought to exist previously: Salmar Holdings Pty Ltd v. Hornsby Shire Council [1971] 1 N.S.W.L.R. 192 (noted (1972) 5 F.L.Rev. 143); Forster v. Jododex Australia Pty Ltd (1972) 127 C.L.R. 421; The Commonwealth v. Sterling Nicholas Duty Free Pty Ltd (1972) 126 C.L.R. 297. However, it is significant that in Forster at least one judge in the High Court of Australia took care to distinguish that case from Toowoomba and it seems there was concurrence in this by the remaining four judges. In Toowoomba, the decision had already been made. Not so in Forster (1972) 127 C.L.R. 421, 437 per Gibbs J. See also more recent New South Wales decisions, discussed infra.
28 Published Working Paper No. 40: Remedies in Administrative Law (1971) 56.
29 McRuer Commission Report: Inquiry into Civil Rights (1968) Vol. 1, 317.
30 1970, 19-20-21 Eliz. II, c. l (Canada).
31 I am not in this respect referring to the whole concept of a federal court dealing with matters of judicial review of federal administrative action, but rather to the particular method by which the creation of such a court was achieved federally in Canada. The Kerr Committee Report, Parliamentary Paper No. 144, 1971, Ch. 11, 71-75 discusses how this problem should be tackled federally in Australia.
32 Note that under the Commonwealth Constitution the High Court of Australia is given original jurisdiction in all matters “[i]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth” (s. 75(v) ) . This provision quite clearly complicates the path of remedial law reform in Australia in that the creation of a single comprehensive remedy available from a specialist court only would not be possible without a constitutional amendment. (See also s. 75(iii) and the discussion of these sections in Howard, Australian Federal Constitutional Law (2nd ed. 1972) 227-229.) The Kerr Committee was not inclined to recommend this step (Parliamentary Paper No. 144, 1971 Ch. 4 “Constitutional Aspects of Administrative Law” 21. See also para. 241,
33 S. 4. The Court of Appeal may also be referred to as the Appeal Division.
34 Ss. 18 and 28.
35 Statement of Mr D. S. Maxwell, Q.C., Deputy Minister of Justice, before the House of Commons Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence of the Committee for Thursday, 7 May 1970: 28th Parliament, 2nd Session, No. 26, 26.
36 s.28(1).
37 Still greater flexibility might have been ensured if the Court had also been given the authority, where appropriate, to make the decision the statutory decision-maker should have reached. See also the broad range of relief advocated by the Kerr Committee, Parliamentary Paper No. 144, 1971, para. 263, 78.
38 s.28(1).
39 At common law, the classification process is relevant with respect to deciding whether the principles of natural justice are applicable and to the availability of certiorari and prohibition (subject, of course, to the as yet uncertain effect of the emergence of “fairness” as a concept relevant to, procedural obligations). To a certain extent criticism of the increased significance of this process under the Federal Court Act, is tempered by the ease with which proceedings can be transferred from one Division to another (Rule 359 of the General Rules and Orders of the Federal Court of Canada). Nevertheless, the difficulty still has to be faced as a matter of taking the original decision of where to commence proceedings. “Fairness” is also presumably going to create some problems as to the division of responsibilities under ss. 18 and 28. See Lazarov v. Secretary of State of Canada (1973) 39 D.L.R. (3d) 738 where this problem was toyed with by the Court, and Howarth v. National Parole Board (1974) 50 D.L.R. (3d) 349 in which it was decided (inter alia) that a challenge to a decision of the National Parole Board should have been commenced, if anywhere, in the Trial and not the Appeal Division of the Federal Court.
40 Lazarov is relevant on this question. I also discuss this problem in a lengthy footnote in my article, “The Federal Court Act: A Misguided Attempt at Administrative Law Reform?” (1973) 23 University of Toronto Law Journal 14, 29-30n. 57.
41 “The Trial Division has exclusive original jurisdiction ... “
42 S. 18(a). Under s. 18(b) the Court is also given jurisdiction in these terms: “to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief . . .” The purpose of this section is difficult to perceive, though it may be possible to interpret the section as authorizing actions, at least for declaratory relief, against the Crown in right of Canada. The Federal Court Act is not expressed to bind the Crown but, on the other hand, the Attorney General is not normally named as a defendant unless the Crown is being sued.
43 Vapor Canada Ltd v. MacDonald et al. (1971) 22 D.L.R. (3d) 607. Note, however, the recent English decision R. v. Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] 2 W.L.R. 805, 811, where Lord Widgery C.J.suggests that certiorari is now available without regard to the traditional administrative-judicial classification process.
44 Supra n.42.
45 1971, 20 Eliz. II, c. 48 (Ontario).
46 Judicature Amendment Act 1972 (N.Z.).
47 The McRuer Commission. Of course, it should be said that the remedial aspects of judicial review were virtually confined to three short chapters of a mammoth five volume report: Inquiry into Civil Rights (1968) Vol. 1, Chapters 20-22, 316-332.
48 See particularly the fourth and fifth reports of the Committee, presented to the Minister of Justice in 1971 and 1972 respectively.
49 Supra n. 22.
50 For instance, in Tauhara Properties Ltd v. Mercantile Developments Ltd [1974] 1 N.Z.L.R. 584, 585, the Supreme Court treated an application for certiorari and prohibition as an application for review by virtue of s.6 of the Judicature Amendment Act 1972.
51 McRuer Commission Report: Inquiry into Civil Rights (1968) Vol. 1, 325 (italics added).
52 S.2( 1).
53 S. 7.
54 S.8.
55 Published Working Paper No. 40: Remedies in Administrative Law (1971) 65-67.
56 [1973] 2 O.R.28; (1972) 32 D.L.R. (3d) 678.
57 [1973] 1 O.R. 615; (1972) 32 D.L.R. (3d) 17.
58 For a recent discussion of this problem in an Ontario context, see Howe, , “The Applicability of the Rules of Natural Justice to Investigatory and Recommendatory Functions” (1974) 12 Osgoode Hall Law Journal 179CrossRefGoogle Scholar.
59 Judicature Amendment Act 1972 (N.Z.) s. 4.
60 McRuer Commission Report: Inquiry into Civil Rights (1968) Vol. 1,317.
61 Published Working Paper No. 40: Remedies in Administrative Law (1971) 68.
62 Parliamentary Paper No. 144, 1971 para. 253, 76. Perhaps the superficiality of certain aspects of the Kerr Committee's Report finds some justification in the following statement by Professor Whitmore, “Administrative Law in the Commonwealth: Some Proposals for Reform” (1972) 5 F.L.Rev. 7, 8-9Google Scholar: “Because the Report was aimed at laymen as well as lawyers it was decided to avoid unnecessary technicality and complexity wherever possible and to keep case references to an absolute mininrnm.”
63 [1973] 1 0.R (2d) 548; (1973) 41 D.L.R. (3d) 57.
64 Id. 550 (59).
65 Id. 551-552 (60-61).
66 Id. 549 (58) (per Wright J., with whom Wells C.J.H.C. concurred).
67 Certiorari has always been regarded as having the most liberal standing requirement among the traditional remedies: e.g. the English Law Commission's Working Paper No. 40 Remedies in Administrative Law (1971) 96.
68 [1973] 3 O.R. 404; (1973) 37 D.L.R. (3d) 69.
69 Report of the Royal Commission: Inquiry into Civil Right (1968) Vol. 1, 318.
70 (1973). 404, 405-406; (1973) 37 D.L.R. (3d) 69, 70-71.
71 Id. 406-407 (71-72).
72 In other words there is no equivalent to s.2(2) and (3) of the Judicial Review Procedure Act, 1971 (Ontario).
73 The word “party” in (iii) and (iv) is omitted and the words “notice or” are added before “direction” in (i).
74 Lower Hutt City Council v. Bank [1974] 1 N.Z.L.R. 545.
75 Presumably, this kind of remedial flexibility is in fact provided for in the Judicature Amendment Act 1972 s.8 which gives the Court authority to “make such interim order as it thinks proper pending the final determination of the application”.
76 Supra n.16.
77 See Rules 5.14 (declaration) and 56(prerogative relief).
78 Rule 9.02.
79 Note, however, the mandatory effect of Rule: 9.02 described infra n. 81.
80 (1973) 33 D.L.R. (3d) 98.
81 Rule 9.02 provides that in certain instances proceedings for declaratory and injunctive relief must be commenced by originating application rather than by way of action, namely, where the sole or principal question to be determined is one of law in which there is unlikely to be any substantial dispute of fact.
82 Supra n. 62, para. 258, 77. This was one matter taken up by the Ellicott Committee (supra n. 11). Professor H. W. R. Wade had cautioned the Committee against codification because of the danger of stifling development of the law of judicial review. The Committee nevertheless considered that there should be specification of the grounds for review but, however, accepted Professor Wade's alternative suggestion that if there was to be a codification it should include the broad ground of review of action “contrary to law” (see paras. 41-43, 9-10).
83 Save perhaps for the doubts generated about whether a declaration is available for all types of error of law, though the orthodox view would seem to be that it is not. See, e.g.,the English Law Commission's Working Paper (supra n. 67, 42-43).
84 S. 2(4) of the Ontario Act and s. 4(2) of the New Zealand legislation.
85 Rule 56.06.
86 In other words the new Rules do not and probably could not have altered the provisions of the Proceedings Against the Crown Act, R.S.N.S. 1967, c. 239.
87 (1973) 33 D.L.R. (3d) 98, 107-109.
88 [1973] 1 O.R. (2d) 548; (1973) 41 D.L.R. (3d) 57.
89 [1967] 2 A.C. 337.
90 Standing is dealt with in part of one short paragraph (para. 254, 76-77) though it should be noted that the form of provisions advocated corresponds with that argued for subsequently in the text of this paper.
91 Report of the Royal Commission: Inquiry into Civil Rights (1968) Vol. 1, 329: “13. The standing of a person to apply for review should be governed by the present principles, e.g. interest, etc.” This represents the Report's sole contribution on the topic.
92 The only mention of standing in the relevant Reports of the Committee is at p. 11 of the 1971 Report where some comment is made as to the stringent standing requirements in injunction actions.
93 Aside 'from a summary of the present law (seriatim) the Working Paper deals with proposals for reform: supra n.5, 95-101.
94 Scottish Law Commission Memorandum No. 14: Remedies in Administrative Law, (supra 12) 44-50.
95 Published Working Paper No. 40; Remedies in Administrative Law, (supran. 5) 95.
96 Ibid.
97 Scottish Law Commission Memorandum No. 14: Remedies in Administrative Law, (supra n. 12) 49-50.
98 Report of the Law Reform Commission on Appeals in Administration (1973).
99 Id.285.
1 By virtue of s. 69(2), s. 69(1) does not apply to the writ of habeas corpus. Habeas corpus is dealt with in s. 71 and is still sought by writ though flexibility is added even here in that the Court is empowered on an application for the writ to dispose of the proceedings “as the nature of the case requires”. It is also worth noting that the preceding section, s. 70, authorizes the Court to issue declaratory and injunctive relief where an information in the nature of quo warranto was previously available.
2 Rules of the Supreme Court, Part 54, r. 4 (contained in the Fourth Schedule to the Supreme Court Act, 1970). This also applies to proceedings for an injunction under s. 70 and proceedings for an order for the issue of a writ of habeas corpus under s. 71.
3 Rules of the Supreme Court, Part 4, r. 3(1). The two exceptions are proceedings for injunctive relief under s. 71 and proceedings for injunctive relief which are coupled with a claim for damages in tort (infra n. 4).
4 Rules of the Supreme Court, Part 4, r. 2(1)(a). Presumably, as far as relief in the nature of the prerogative writs is concerned, this prevails over Part 54, r. 4.
5 Report of the Law Reform Commission on Appeals in Administration, (1973) 284.
6 Administration of Justice Act, 1973, s. 7.
7 As inserted bys. 7(1)(c)(ii) of the Administration of Justice Act, 1973.
8 The word “seem” is used because s. 53(3B) does not refer specifically to relief in the nature of certiorari. All other modes of relief are obviously covered and an argument can be made that sub-section (iii) is wide enough to cover relief in the nature of certiorari as well as declaratory relief which is mentioned specifically. This refers to proceedings “... for determining by declaration or otherwise any matter concerning the powers of a public body or a public officer ... ”. Still the matter is not free from doubt, nor is it clarified any by the Practice Note issued by the Chief Justice of New South Wales on 27 August 1973 ([1973] 1 N.S.W.L.R. 549). The Administration of Justice Act, 1973 was proclaimed in force as from 1 July 1973 and it is also worth noting thats. 53(3B) also gives the Administrative Law Division appellate jurisdiction from public bodies or officers specified in the Rules, thus ensuring involvement with administrative decision-makers both at the review and appellate levels,
9 S. 53 (3B): “There shall be assigned to the Administrative Law Division ... “ (emphasis added.)
10 Judicature Amendment Act 1972 (N.Z.) s. 15.
11 [1973] 1 N.S.W.L.R. 72.
12 Id. 82-83.
13 Id. 83-84. It must, however, be said that the justification for attributing such width to declaratory relief was found not in the new legislation but in the recent High Court of Australia decision in Forster v. Jododex Australia Pty Ltd (1972) 127 C.L.R. 421. This decision was made under the former New South Wales provision for equitable relief, s. 10 of the Equity Act, 1901.
14 [1973] 2 N.S.W.L.R. 366.
15 Id. 382, though here too it was by reference to theJododex case and, also, The Commonwealth v. Sterling Nicholas Duty Free Pty Ltd (1972) 126 C.L.R. 297, another recent decision of the High Court of Australia
16 [1973] 2 N.S.W.L.R. 366, 383.
17 [1973] 1 N.S.W.L.R. 151.
18 Id. 173 per Hutley J.A.
19 [1973] 1 N.S.W.L.R. 36.
20 Of course the section is much broader in its language than just this. It is not confined to statutory or public duties, the ambit of mandamus, and presumably has many other uses other than as a supplementary form of mandamus
21 [1973] 1 N.S.W.L.R. 72.
22 Id. 79. See also the extract from the judgment of Street C.J. in Eq. previously cited (supra p. 362 n. 12).
23 E.g. Part 4, r. 2(a) and (b) which have been copied in Rule 9.02 (a) and (b) of the Nova Scotia Rules of Civil Procedure.
24 The present law is described (pp. 16-20) and reforms are recommended (pp. 76-79). (See, however, supra n. 62.)
25 Supra p. 342 n. 11. Presumably, the Ellicott Committee does not have the same excuses as the Kerr Committee-that it was producing a Report for laymen as well as lawyers (supran. 62).
26 Supra p. 342 n. 9. The impression that I gained while in Australia was that early legislative action was much more likely on the Bland Committee's proposals for an administrative appellate structure and a Federal Ombudsman than on the Kerr and Ellicott recommendations for remedial reform. At least Bills had been drafted to give effect to the Bland recommendations.