Application by Carolyn June Enright for an Order Nisi for a writ of Certiorari

[1982] FCA 127

Re: IN THE MATTER OF CAROLYN JUNE ENRIGHT
And: IN THE MATTER OF THE TRAFFIC (AMENDMENT) ORDINANCE 1981
ACT G.13/1982

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT DIVISION

GENERAL DIVISION

Gallop, J

Davies, J

Kelly, J

HEARING

CANBERRA

#DATE 28:5:1982

ORDER

The appeal is dismissed.

JUDGE1

This was an appeal from a decision of a judge of the Supreme Court of the Australian Capital Territory in which his Honour refused to grant an order nisi for the issue of a writ of certiorari to quash a decision of the Court of Petty Sessions of the Australian Capital Territory made on 24 August 1981.

The proceedings which were before the learned magistrate in August 1981 were proceedings by way of a prosecution for an offence under the then Traffic (Amendment) Ordinance 1981 with respect to Anzac Day parades. It was a requirement of the offence that there be an Anzac Day parade organised by the Returned Services League of Australia. It was put to the learned magistrate that there was either no evidence or no sufficient evidence on which his Worship could be satisfied that the parade attended by the accused had been organised by the Returned Services League of Australia.

His Worship found against the submission. I am content to assume, without deciding the point, that there is an error of law in his Worship's decision and I am content to assume for the purposes of these reasons, again without deciding the point, that there was an error of law on the record for the purposes of the issue of a writ of certiorari.

The accused had two rights then which she was entitled to exercise as of right. There was the right of appeal to the Supreme Court and the right to apply for an order nisi for review. Both rights are required by the legislation to be exercised within twenty-one days. Those are the normal rights of appeal from the Court of Petty Sessions to the Supreme Court and they are rights available to persons who are affected by an error in proceedings in the Court of Petty Sessions.

The accused did not avail herself of those remedies and after the expiration of the time period within which either of those remedies could have been availed of she sought from the Supreme Court the grant of an order nisi for the issue of a writ of certiorari to quash the decision.

Now, the ordinary principle is that a writ of certiorari is a discretionary remedy and it will not be granted in a case where another and more convenient remedy has been available and has not been availed of.

In R v Paddington Valuation Officer and Another ex parte Peachey Property Corporation Ltd. (1966) 1 QBD 380, at pp.399-400, the Master of the Rolls, Lord Denning, said this :

'Mr. Eric Blain contended strongly before us that, as Parliament had provided this specific remedy, the Peachey Property Corporation ought to go by it. There was a code of procedure, he said, specially designed by Parliament, to deal with grievances such as these. That was their proper course. Indeed, their only course. Such specific remedy being given, they could not resort to the remedy of certiorari or mandamus. He supported this contention by reference to Pasmore v Oswaldtwistle Urban District Council, Rex v City of London Assessment Committee, and Stepney Borough Council v John Walker & Sons Ltd. Now these cases certainly warrant the proposition that, if the Peachey Property Corporation were attacking the assessment of any one particular hereditament, or any small group of hereditaments, such as all the houses in a particular terrace, their only remedy would be that statutory remedy. By which I mean that if, and in so far as they are attacking particular assessments within a provided, namely, to make proposals to alter those assessments. But if and in so far as they are attacking the valuation list itself and contend that the whole list is invalid (as they do), then I do not think they are confined to the statutory remedy for the reason that the statutory remedy is in that case nowhere near so convenient, ...'.

In R v Hillingdon London Borough Council, Ex parte Royco Homes Ltd (1974) QBD 720, at p.728, Lord Widgery said:

'In particular, it has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy.'

Those are only examples of cases which have laid down the principle : in a case where Parliament has provided a remedy, and a time limit for the exercise of that remedy, Parliament has indicated that that is the ordinary means by which a grievance should be redressed and the time limit within which steps should be taken to seek redress. That is not to say that when one sees some unusual circumstance outside the ordinary case that one may not seek the discretionary issue of a prerogative writ is proper and, indeed, establish that in a case where the lower tribunal has acted outside its jurisdiction or has not complied with the ordinary rules of natural justice, then, indeed, a prerogrative writ should generally issue for those are the very types of cases in which the court should exercise its supervisory jurisdiction to see that the lower tribunal acts in a judicial manner.

In the present case, however, there is nothing unusual about the case. All that is alleged is an error of law. It is not suggested that there was any excess of jurisdiction and it is not suggested that there was any want of natural justice or any other particular feature which might warrant the unusual course of the grant of the discretionary remedy of a prerogative writ.

In my view, in the circumstances, his Honour was right, as a matter of discretion, in not granting an order nisi. I would dismiss the appeal.