CHAPTER XII.

OF CERTIORARI.

“A CERTIORARI is an original writ issuing out of the King's Bench Division, directed in the King's name to the judges or officers of inferior Courts, commanding them to return the records of a cause depending before them, to the end the party may have the more sure and speedy justice before him, or such other justices as he shall assign to determine the cause." (Bacon's Abr.)

"It is a consequence of all jurisdictions to have their proceedings returned here by certiorari to be examined here. . . . Yet the statute does not give authority to this Court to grant a certiorari; but it is by the common law that this Court will examine if other Courts exceed their jurisdiction."-Lord Holt (Raymond, 468-9).

The writ of certiorari issues out of the Crown office in the name of the King, and is tested by the Lord Chief Justice of Ireland.

In The Queen v. The JJ. of Surrey (L. R. 5 Q.B. 472), Lord Blackburn says: "It is quite clear that except when applied for on behalf of the Crown, the certiorari is not a writ of course. The Court must be satisfied on affidavits that there is sufficient ground for issuing it, and it must in every case be a question for the Court to decide whether in fact sufficient grounds do exist. But in the present case we are satisfied. .

.

"In the very analogous case of prohibition a distinction is taken, thus expressed by Cockburn, C.J. (Forster v. Forster, 4 B. & S. 199): ́ I entirely concur in the proposition that although the Court will listen to a person who is a stranger, and who interferes to point out that some other Court has exceeded its jurisdiction, whereby some wrong or grievance has been sustained; yet that is not ex debito justitiæ, but a matter upon which the Court may properly exercise its discretion, as distinguished from the case of a party aggrieved, who is entitled to relief ex debito justitiæ, if he suffers from the usurpation of another Court.""

Lord Blackburn then notices that a similar distinction was taken in an old case of Arthur v. Commissioners of Sewers (8 Mod. 331), where one of the judges said, " that a certiorari was not a writ of right, for if it was it could never be denied to grant it; but it has often been denied by this Court, who, upon consideration of the circumstances of cases, may deny it or grant it at discretion: so that it is not always a writ of right. It is true, when a man is chosen into an office or place, by virtue whereof he has a temporal right, and is deprived thereof by an inferior jurisdiction who proceed in a summary way, in such a case he is entitled to certiorari ex debito justitiæ, because he has no other remedy, being bound by the judgment of the inferior judicature":

And proceeds-" In other cases, where the application is by the party grieved, so as to answer the same purposes as a writ of error, we think that it ought to be treated, like a writ of error, as ex debito justitiæ; but when the applicant is not a party grieved (who substantially brings error

to redress his private wrong), but comes forward as one of the general public, having no particular interest in the matter, the Court has a discretion; and if it thinks that no good would be done to the public by quashing the order, it is not bound to grant it at the instance of such a person."

DISCRETION.

Where the issuing of certiorari is discretionary.-As will be seen from Lord Blackburn's judgment, it is discretionary in the Court to grant the writ at the instance of the defendant. But though it be not a writ as of course, yet if a party directly aggrieved by the order of an inferior tribunal can show that the Court had no jurisdiction, or had exceeded its jurisdiction, or was improperly constituted, the general rule is to award the writ as of common right unless the applicant has, by his conduct, forfeited that right, or rendered it inexpedient that the Court should interfere (R. v. Surrey JJ., L. R. 5 Q.B. 466). Nevertheless the granting of a certiorari at the instance of a private person is discretionary. In R. v. Londonderry JJ. (1905, 2 I. R. 318), it was held that the granting of certiorari to a private person is of discretion, not ex debito justitiæ, and it was not granted because no benefit could accrue to the defendant. Lord Justice FitzGibbon said: "The writ of certiorari is the apt means for preventing the infliction of a continuance of any wrong by any unwarranted assumption of jurisdiction. If a right is involved, or a wrong is continuing, or liberty or character is at issue, or a defective order is operating in any way, it may be otherwise. "This order" (the one then before the Court)" is now neither operative nor obstructive." And in R. (Fisher) v. JJ. Co. Down (31 I. L. T. R. 8), on an application for a certiorari to quash a conviction by justices made in excess of jurisdiction, when the penalty has been already undergone and the members of the Court are of opinion that no substantial benefit would accrue to the applicant by the granting of the order, they will exercise their discretion and refuse the motion.

See, also, R. v. Newborough (L. R. 8 Q.B. 585).

The question of discretion also arises in cases where there has been Misconduct or misconduct, or waiver, by the party applying. In R. v. South Holland waiver. Drainage Board (8 A. & E. 429), Lord Denman said: "The Court will consider the conduct of the party applying. Here there was a waiver of the point by the party himself. He is not in a position to take advantage of defects, one of which he caused in the hope of ampler remuneration, and the other of which he waived."

See, also, R. v. Nicholson (1899, 2 Q.B., C. A. 470).

Another instance of the discretionary power of the Court arose in the case of R. (Taverner) v. JJ. Co. Tyrone (1909, 2 I. R. 763)—when it was held, inter alia, that one T. was not entitled to a writ of certiorari to quash a conviction, on the ground that it omitted to add, after the award of imprisonment the words "unless such fine or costs be sooner paid," it appearing that the omission of these words was brought about by a statement made on behalf of the defendant, that the fine would be paid.

CERTIORARI AS OF RIGHT.

Where certiorari is granted as of right.-The Attorney-General is entitled to the writ absolutely, and in all cases. At the suit of the

Attorney-General acting on behalf of the Crown and of a private prosecutor, the writ issues of course, and without assigning any grounds. There is this distinction between an application by the Attorney-General officially and that by a private prosecutor, namely, that in the former the writ is of absolute right, but in the case of an individual prosecutor, though the writ issues of course, yet upon cause shown it may be suspended (2 Hawk. P. C., c. 27, s. 27).

CERTIORARI TAKEN AWAY BY STATUTE.

Statutes. From towards the end of the eighteenth century many statutes took away the right to certiorari, and it has now become quite a usual form. It is difficult to understand why it should be so, certiorari is essentially a writ beneficial to the subject.

as

However, there has always been a conflict between the legislature and the King's Bench in the exercise of their prerogative writs—a conflict which at some moments of English history became very acute.

Certiorari may issue at the instance of the Crown (R. v. Allen, 13 East, 333-341), or of a prosecutor (R. v. Boultbee, 4 A. & E. 498; per Lord Kenyon, 1 East, 305). And where certiorari has been taken away, the Attorney-General, acting on the part of the Crown, has assisted. defendants in having doubtful judgments reviewed (15 East, 337).

Certiorari issues, in face of express words taking it away

Where there has been an absence of jurisdiction (ex parte Bradlaugh, 3 Q.B.D. 509). Mellor, J., remarks: "Were this not so, a metropolitan magistrate might make any order he liked."

When there has been an excess or a want of jurisdiction, and it has been settled (R. v. Bolton, 1 Q.B. 66) that this may be shown on affidavit, even when the conviction is apparently correct.

Where the Court has been illegally constituted (R. v. Cheltenham Commissioners, 1 Q.B. 467, per Lord Denman, C.J.).

Where the conviction has been obtained by fraud (R. v. Gillyard, 12 Q.B. 527). Lord Denman said: "The affidavits disclose a case of fraud and collusion to defeat the law. Even were it necessary, we ought in such cases to create a precedent in order that persons who have set the law in motion for fraudulent purposes may understand that if charged with such an offence they will be expected to answer the accusation.' Erle, J." This Court has authority to correct all irregularities in proceedings of inferior tribunals. Here we are exercising the most salutary jurisdiction we can exercise."

Where the statute gives a right of appeal. In R. v. Blathwayt (15 L. J. M. C. 48, 92), it was argued that the party had his remedy by appeal to Quarter Sessions, and should have sought his remedy there. It was held that this was no ground of objection to the writ. The certiorari could go before any proceedings were taken at Quarter Sessions.

Where the expression is used authorising the justices to hear and finally determine, or analogous words, such words make the decision of justices final no doubt on matters of fact (2 Hawk. P. C., c. 27, s. 23).

Express words are necessary to take away certiorari.-In the case of

R. v. Morley and others (2 Burr. 1041), by the provisions of the Act under consideration, the following words occurred: "And no other Court whatsoever shall intermeddle with any cause or causes of appeal upon this Act; but they shall be finally determined in the Quarter Sessions only." Nevertheless, after an appeal to the Sessions, a trial, verdict, and judgment, Lord Mansfield held that a certiorari could issue. "A certiorari,' he said, "does not go to try the merits of the case; but whether the justices have exceeded jurisdiction, have exceeded their bounds. The jurisdiction of this Court is not taken away unless there be express words to take it away. This is a settled point.

In the case of the Colonial Bank of Australia v. Willan (L. R. 5 Colonial Bank P. C. 417), the following points on certiorari were decided

"Where certiorari is said to be taken away by statute, the Superior Court is not absolutely deprived of the power to issue the writ; but its action as to the writ is limited and controlled, and it cannot quash. the order removed by certiorari except on the ground of manifest defect of jurisdiction in the tribunal which made the order, or of manifest fraud in the party procuring it."

"Matters on which the defect of jurisdiction depends may be apparent on the face of the proceedings, or may be brought before the Superior Court by affidavit, but they must be extrinsic to the impeached adjudication."

"The objection of defect of jurisdiction cannot be entertained if it rests solely upon the ground that the judge has erroneously found a fact which was essential to the validity of his order, and which he was empowered to try. Objections on the ground of defect of jurisdiction may be founded on the character and constitution of the inferior Court in the nature of the subject matter of the inquiry, or the absence of some preliminary proceeding which was necessary to give jurisdiction to the inferior Court."

The principle acted on in R. v. Bolton (1 Q.B. 66), that an adjudication by a judge having jurisdiction over the subject matter is, if no defects appear on the face of it, to be taken as conclusive of the facts stated therein, was recognised per curiam.

The Rule in Bunbury v. Fuller (9 Exch. 111), was approved of by the Court. The rule in Bunbury v. Fuller, often quoted in judgments, and sometimes incorporated without quotation, is this: It is a rule that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and, however its decision may be final on all particulars, making up together that subject matter which if true is within its jurisdiction, and however necessary in many cases it may be for it to make a preliminary inquiry, whether some matter be or be not within the limits, yet upon this preliminary question its decision must always be open to inquiry in the Superior Courts."

of Australia v. Willan.

Kerry JJ.,

In R. (Waters) v. Kerry JJ. (1900, 35 I. L. T. R. 10), Lord O'Brien, R. Waters) v. L.C.J., said that where certiorari is taken away by statute, the Court will merely inquire whether the Court had jurisdiction to enter on the inquiry. At the same time the Lord Chief Justice intimated that should this latter question arise in a definite form he would summon the judges to consider it.

It is permissible to hope that the question will not arise. Certiorari

is one of those powers which are all the more potent because all the less defined. The Legislature is after all the supreme master.

WHERE CERTIORARI IS NOT GRANTED.

A certiorari does not lie to remove other than judicial acts (R. v. Armagh JJ., 6 Ir. Jur., N.S., 212).

It does not lie from a decision of justices committing a defendant for trial, or admitting to bail (R. v. Roscommon JJ. (1894), 2 I. R. 158).

Nor from a warrant of apprehension issued by a magistrate, nor a poor-rate, nor a warrant of distress to levy a poor-rate, nor the granting of a spirit licence, which is not a judicial act capable of revision by the Court on certiorari (R. v. Overseers of Salford, 18 Q.B. 687).

Nor does certiorari or mandamus lie when the justices deal with a matter within their jurisdiction, and on a point of law dismiss it without prejudice (R. v. Roscommon JJ., 34 I. L. T. R. 203).

AFFIDAVITS IN CERTIORARI.

It is the law of the Court that the utmost good faith must be observed towards the Court. All the facts which can have a bearing on the order sought must be brought under its notice [McDonagh v. Davies (1875), I. R. 9 C. L., per Palles, C.B., 302]. This applies to all ex parte applications. If material facts be suppressed on an application for a conditional order, the order will be discharged on that ground [R. (Marshall) v. Tyrone JJ. (1892, 32 L. R. I. 201); R. (Shannon) v. Carlow JJ. (1902, 2 I. R. 142)].

In the case of the Queen v. Bolton (1 Q.B. 66), the question arose how far affidavits were admissible to review the finding of justices, in an order brought up by certiorari. Lord Denman decided that although affidavits would be received to show that the justices had no authority to enter on an inquiry, as for instance, that the question was not one to which their jurisdiction extended, yet the Court will not hear affidavits impeaching their decision or conclusion on the facts, or reviewing their judgment on the evidence.

In the case of Thompson v. Ingham (14 Q.B. 710), Patteson, J., said: 'The law is laid down in the case of R. v. Bolton" (supra), and proceeded, "where the charge is such as, if true, is within the magistrates' jurisdiction, the finding of the facts afterwards by the magistrate is conclusive; but where the charge is not such as, if true, would be within the magistrates' jurisdiction, no finding of fact can alter it."

In R. v. Grant (19 L. J. M. C. 39), Lord Denman said: "It is clear that the decision of a tribunal lawfully constituted, upon a question properly brought before it respecting a matter within its jurisdiction, is not open to review on certiorari; but the decision of persons assuming to be a tribunal that they are lawfully constituted is open to review."

In R. v. Nunneley (El. Bl. & El. 352), Erle, J., says: "The cardinal point on which jurisdiction depends cannot be decided conclusively by the inferior Court. . . . No Court of limited jurisdiction can give itself jurisdiction by a wrong decision collateral to the merits of the case upon which the limit of its jurisdiction depends."