When Power Goes Wrong · Liability & Remedy Ledger · Part 06

If a decision is unlawful, what can judicial review actually do?

Judicial review is principally about controlling public power, not compensating loss. The High Court can grant relief, make interim orders and direct reconsideration, but damages ordinarily require a separate cause of action.

The Judicial Review Procedure Act 2016 provides the procedural framework for reviewing statutory power. It treats mandamus, prohibition and certiorari as judicial review proceedings and allows declarations and injunctions to be dealt with in the same framework.

Section 16 gives the Court broad remedial discretion. Section 17 allows the Court to direct the decision-maker to reconsider the matter in accordance with the Court's direction.

Invalidity and compensation are different.A claimant may succeed in proving that a decision was unlawful and obtain quashing, declaration, restraint or reconsideration without receiving money. Damages require another legal basis unless a recognised public-law compensation remedy applies.

Typical reliefSet aside/quash, prohibit, compel performance, declare legal position, interim restraint, reconsideration.

Primary instrumentJudicial Review Procedure Act 2016.

Core purposeControl the legality of public power.

Not automaticCompensatory damages for loss caused by the unlawful decision.

Judicial review asks “was the power exercised lawfully?” A damages claim asks a further question: “what legal rule makes the defendant financially liable for the resulting loss?”

Primary statuteJudicial Review Procedure Act 2016, ss 11–18.

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