‘For every wrong, there is a remedy’: the availability of mandamus against federal court judges and other alternatives to judicial injustice
21.08.23
The recent judgment of the Federal Court of Australia in Smart Education Program Pty Ltd (in liq) v CLGC Australia Pty Ltd [2023] FCA 826 (Smart Education) has raised much consternation. At first glance, the case appears to be a run-of-the-mill contractual dispute. However, the source of controversy arises from an unexpected source, which concerned not the parties but the conduct of the judges themselves. The case was heard over nine days in the period between October and December 2020, but actual judgement was only delivered in late July 2023 – a staggering three-year delay between the substantive hearing and judgment. The consequences of this delay are further underscored by the fact that freezing orders made in 2017 remained in place all the way until judgment, with a potentially significant impact on the parties’ ability to do business. The Court found that no costs certificate was available to ameliorate the significant costs incurred by both parties throughout the protracted litigation; if such a cost certificate was granted, the Commonwealth would have ‘picked up the tab’ for the costs in the proceedings.
Smart Education prompts interesting questions about whether there is any scope in Australian public law to provide relief to the parties in circumstances of undue judicial delay. This article will focus on one such possibility: whether the High Court of Australia could have issued a writ of mandamus compelling the Federal Court to hand down its judgment in a timely manner. This, in turn, raises complex questions going to the very heart of the operation of the federal judiciary and the High Court’s ability to regulate their conduct.
Availability for mandamus to issue against Federal judges: a question of jurisdiction
Mandamus - a brief history
Mandamus (Latin for ‘we command’) is a type of writ which can be issued to ‘command the fulfilment of some duty of a public nature which remains unperformed’ (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933)). Mandamus, alongside prohibition and certiorari, is one of the traditional ‘prerogative writs’, historically issued in the name of the Crown. The prerogative writs were the principal tools by which the judiciary was able to exercise its power of judicial review and restrain capricious actions by public officials.
Since the adoption of the Australian Constitution, it has been recognised that the source of power to issue these writs is no longer traceable back to any prerogative or authority of the Crown. Rather, the High Court’s jurisdiction to issue these writs is directly conferred by s 75(v) of the Constitution. Thus, the Courts have repeatedly emphasised the need to call these writs the ‘constitutional writs’, to avoid any hint of monarchical intrusion into what has become a fundamentally Australian constitutional remedy (see eg Re Refugee Review Tribunal; Ex parte Aala at [138] (Kirby J)).
Section 75(v) and the meaning of ‘officer of the Commonwealth’
Section 75(v) provides as follows:
75. In all matters –
(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.
One of the main purposes of s 75(v) was to ‘make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power’ (Bank of New South Wales v The Commonwealth at 363). However, even though the inclusion of s 75(v) confirmed the scope of the High Court’s original jurisdiction, yet another issue reared its head – who or what is an ‘officer of the Commonwealth’? In particular, does the meaning of this phrase extend to federal courts and their judges or whether only to members of the executive branch? This was considered in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co, a pre-Boilermakers case. The question before the Court was whether a writ of prohibition could be issued against a judge of the Commonwealth Court of Conciliation and Arbitration exercising Federal jurisdiction under Chapter III of the Constitution. The High Court held that the term ‘officer of the Commonwealth’ was to be construed broadly and included all Commonwealth officers, both judicial and non-judicial.
This understanding was upheld shortly afterwards in R v Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd [No 1]. It is now uncontroversial that the High Court has original jurisdiction to issue any of the constitutional writs against an inferior federal court under s 75(v) on the basis that the judges constituting such courts would be an ‘officer of the Commonwealth’, even if said court was a superior court of record (eg Edwards v Santos Limited). This marked a noted fork between Australian and English jurisprudence, as the latter has traditionally treated superior courts of record as immune from judicial review. However, the breath of s 75(v) means that Australian law has never considered itself so confined (see for example Aala at [159]-[161] per Hayne J). Indeed, the ability of the High Court to supervise all lower courts (at least in the federal arena) is of central importance to the unity of the Australian legal system and the need to avoid ‘islands of power immune from supervision and restraint’ (Kirk v Industrial Court (NSW) at [98]-[108]).
The need for error
It is settled that the High Court has original jurisdiction under s 75(v) to compel a judge of an inferior federal court judge (or judges) to carry out their proper functions according to law. However, in what circumstances would that jurisdiction actually be enlivened? In other words, on what grounds would the High Court exercise this jurisdiction? Section 75(v) itself is silent on the situations by which the writs would issue, but it has been clear since Aala that the grant of all constitutional writs is discretionary in nature. In the past, there have been cases which have considered the issue of whether delay may constitute an actual or constructive failure to perform a decision-maker’s duty to exercise power. Although that there is no mandatory time limit within which a judge must deliver a judgment, the courts have recognised that in the absence of a statutory time limit for making a decision, a statutory decision-maker’s duty to decide ‘was to be performed within a reasonable time’ (Plaintiff S297/2013 v Minister for Immigration and Border Protection at [37] per Crennan, Bell, Gageler and Keane JJ; ASP15 v Commonwealth of Australia). The test for whether a delay has extended beyond a ‘reasonable time’ is ‘whether there are circumstances which a reasonable man might consider render this delay justified and not capricious’ (Thornton v Repatriation Commission at [23]).
In the present case, a three-year delay between hearing and judgment would be highly unlikely to be considered justified. Although the cases cited above concerned decisions made by a Minister pursuant to a statutory obligation (ie to reach a certain state of satisfaction) in the migration context, there would be no reason for these legal principles not to apply to federal judges in relation to the handing down of judgments generally. Even though the obligation to determine cases by judges of the Federal Court is not readily traceable to any statutory source, an argument that the Court does not have a duty to decide would lead to the conclusion that, after hearing a matter, the court could legitimately choose not to do make a final determination. Notwithstanding the prima facie absurdity of such a conclusion, it would also be repugnant to a Federal Court judge’s core function to issue binding and conclusive decisions under the judicial power pursuant to Chapter III of the Constitution (Huddart, Parker & Co Pty Ltd v Moorehead at 357).
Another argument is that the delay itself is not what gives rise to error, but rather the detrimental impact on the court’s ability to exercise its judicial functions as a result of said delay. An equivalent argument was considered in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (NAIS), where the High Court held that a lengthy delay between a hearing in the Refugee Review Tribunal and its decision on the same matter would constitute an error amenable to judicial review if, by reason of the delay, the decision-maker’s capacity to properly perform their functions is impaired (reaffirmed in WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [45]-[60]). This raises questions as to whether, in Smart Education, the magnitude of the delay was sufficient to call into question the seriousness of the consideration given to the matter, or was otherwise evidence of the decision-maker being distracted from the matter in issue (NAIS at [161]). Further, the fact that the matter was reassigned to a different judge who admitted in his own reasons that he ‘[did] not [have] the advantage of having seen and heard the witnesses in person’ (Smart Education at [2]) could also conceivably found an argument that the delay has adversely affected the decision-making process from which mandamus would issue.
However, the Court in NAIS have also emphasised the need for caution in inferring a lack of proper consideration from delay alone. Although the Court were not clear as to where the line would be drawn, some of the judges’ comments (especially those of Heydon and Callinan JJ) may imply that such a finding could have only been made if, after a detailed assessment of the relevant factors, conduct approaching bad faith was made out. No such allegation was made in Smart Education. In any event, a reviewing court would be extremely reticent to reach such a conclusion without extremely probative evidence, not least when that conclusion is against a fellow judicial officer.
The Federal Judicial Commission: a possible solution?
The above analysis has shown that notwithstanding that the High Court has authority to issue mandamus against lower federal court judges, the process of actually getting the desired writ to issue is fraught with difficulties, not least the prospects of conducting litigation at the highest court in the land. The issue cuts both ways as well – relying solely on the High Court to resolve disputes of this kind would undoubtedly put a strain on the Court’s caseload, which will have a negative effect on the other cases of the highest public importance that it deals with. All of this begs the question: what can be done to rectify this situation?
In September 2020, the Australian Law Reform Commission undertook an inquiry into the laws relating to judicial impartiality and bias in the context of the federal judiciary and published its Final Report on the matter on 6 December 2021. Although chiefly focused on the issue of bias, one of the key recommendations (Recommendation 5) of the report was the creation of an independent federal judicial commission to deal with complaints made to it about federal judges. Under the proposed model, the commission will have the power to investigate complaints made to it and then to refer them to the Attorney-General for escalation (including possible removal) if it considers that course of action to be appropriate. The commission is said to provide an alternative route to remedy other than the constitutional writs (and the difficulties attendant therein) and the existing internal complaints mechanism through the head of jurisdiction (normally the Chief Justice), which has been criticised as being ‘overly discretionary and informal’, especially considering that the head of jurisdiction is necessarily put in the difficult position of having to deal with a colleague.
This mechanism, though primarily directed to issues of bias in its current form, can be readily adapted to other types of practical injustices that may be suffered by parties (such as judicial delay in the present case). That being said, proposals for how such a commission would actually function is at present unclear, and any finished product will no doubt require close scrutiny to ensure compliance with the Constitution and that the independence of the judiciary remains beyond reproach, lest the cure becomes worse than the disease.
Conclusion
From the above, it is clear that section 75(v) of the Constitution grants the High Court the ability to supervise all Commonwealth public officials (including Federal Court judges) in the exercise of their public functions. However, the situations in which that ability would be exercised are unclear and full of potential pitfalls. In particular, the determination of whether the remedy sought would be given is largely discretionary and will depend on a variety of factors unknown to the parties in their decision-making processes. This may have the adverse effect of dissuading, rather than encouraging, parties from seeking redress for their legal troubles.
As a result, it would likely be beneficial if an independent body such as the Federal Judicial Commission could initiate investigations and have the capacity to provide relief outside of the judicial system. However, as always, the devil is in the details – the powers of such a body will need to be carefully calibrated such that the independence of the judiciary is not in any way compromised.
Jerry To is a Bachelor of Arts/Bachelor of Laws candidate at the University of Sydney and a Research Assistant at 5 Wentworth Chambers.
He would like to thank the editors of the AUSPUBLAW blog for their constructive comments.
Suggested citation: Jerry To, ‘For every wrong, there is a remedy’: the availability of mandamus against federal court judges and other alternatives to judicial injustice’ (21 August 2023) <https://www.auspublaw.org/blog/2023/8/for-every-wrong-there-is-a-remedy-the-availability-of-mandamus-against-federal-court-judges-and-other-alternatives-to-judicial-injustice/>