Courts are generally very cautious about finding that
relief in judicial review cases would be futile.
It is common in judicial review proceedings for the respondent
to claim that an error made no difference to the outcome, and that
relief to the applicant should therefore be denied. In House v
Defence Force Retirement and Death Benefits Authority  FCAFC
72, the Full Federal Court confirmed that the test is not easy for
a respondent to satisfy.
The error, the decision, and whether it
House concerned a decision of the Administrative Appeals
Tribunal which both the applicant and the respondent agreed was
tainted by error. However, the respondent argued that the error
"would not have affected the result" and therefore that
the decision of the AAT should stand.
The Court said that the test was not whether the error
"would" have made a difference, but whether the error
"could make no difference". To put it another way,
"relief will not be refused in the face of demonstrated error
unless there is no possibility of a successful outcome."
The decision in House was finely balanced; there appeared to be
a relatively good argument that the Tribunal had considered all the
material (notwithstanding the error of law) and that the error
committed would not have affected the outcome. However, the Court
was cautious and held that:
"When the question involves the exercise of a
discretion and the error of law is relevant to the framework within
or foundation upon which the facts are to be determined and upon
which the discretion is exercised, the Court ought to exercise
great caution before deciding that the error of law could make no
difference to the result already reached. The result may be
precisely the same ..., but no one can be sure of
The lesson House teaches is that the courts are generally very
cautious about finding that relief would be futile. So long as
there is a possibility (even if that is unlikely) of a different
outcome, it seems that the courts will not withhold relief from an
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
Persons listed may not be admitted in all states and
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).