Application by Carolyn June Enright for an Order Nisi for a writ of Certiorari [1982] FCA 127

Federal Court of Australia|1982-05-28|Before: Kelly JJ, Gallop J

ON APPEAL TROM THE SUPREME COURT OF THE AUSTRALIAN CAPIFAL TERRITORY

IN THE MATTER of an Application py CAROLiIN JUNE ENRIGHT for an Order Misi for a Writ of Certiorari

AND IN THE MATTER of the Traffic (Amendment) Ordinance 1981

IN THE MAITER of an Application by CAROLYN JUNE ENRIGHT for an Order \isi tor a Writ of Certlorari

AND IN THE MATTER of the Traffic (Amendment) Ordinance L98T

I agree. I am not persuaded that there was an error of law going to jurisdiction or otherwise which would ground the zssue of the writ sought. In my view the evidence before the magistrate was capable of supporting a finding of fact that the Anzac Day Parade was a parade of persons on 25 April 1981 organized

by the Returned Services League of Australia within the meaning of

On Appeal from the Supreme Court of the Australiar Capital Territory

IN THE MATTER of an Application by CAROLYN JUNE ENRIGHT for an Order Nisi For a Writ of

AND IN THE MATTER of the Traffic (Amendment) Ordinance 198T

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 wWorshszp found aga:nst the submission. I am content to assume, witnout deciding tne point, that there 1s an errer cf 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

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 ava1l 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 certiorar1 1s a

discretionary remedy and 1t 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 Peache

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 cert1lorari Or mandamus. He supported this

ference to Pasnore v Oswaldtwisti> =t 5 ce Council, Re 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 asscssment of any one particular hereditament, ot any small group of hereditaments, such as all the rouses in a particular terrace, tneir only remedy would be that statutory remedy. By which I mean that 1f, and in so far as they are attacking particular assessments within a valid valuation list, they must go by the remedy which Parliament has provided, namely, to make proposals to alter those assessments. But 1f and in so far as they are attacking the valuation list 1tself 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 simple reason that the statutory

remedy is 1n that case nowhere near so convenient, W

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

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 1s 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. The cases eStablish instances where the 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 prerogative writ should generally issue for those are the very types of cases in which the court should exercise 1ts supervisory jurisdiction to see that the lower tribunal acts in a judicial Manner.

Se eo A RE A ET LN AR TOA ANITNNGALI Mam hat re A ne --

ent case, however, ther2 15 nothing urusesi about trie

n S a All that is alleged 15 an error of law. re 1s not

suggested that there was any excess of jurisdictson and 1t 15 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 nisl. I would

judgment heretn of Ka Kenour- K Jus Associate Dated van FL

ay Fob, rane "Sends met A, Pepe aee Ay Bee By cee one . a BS ?

QN APPEAL FROM THE SUPREML CCURT OF TUT VUSTRALT AW CAPITIL TERRITORY

IN TUE MATTLR of an Application bv CAROLYN JUNE | ENRIGHT for an Order Nusi for a Writ of Ceértiorari

AND IN THE MATTER of the Tratfic (Amendment) Ordinance 1981

KFLLY, J. I would dismiss the appeal for the reasons givon

I certify that this atte _____ preagedine pages ape a true copy of the

Reasons far Judgment herein of his Honour Mr, Justice Kelly.

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

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